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Thursday, May 27, 2004 08:05 pm

Supreme fight

Special interests are turning the race for a seat on Illinois’ high court into a battle over legal reform

Cover illustration by Nathan Stapleton-McKinzie

Contests for the Illinois House and Senate can be bloody and bruising, but judicial races are supposed to be kinder, gentler affairs. Lawyers who want to become judges traditionally say no more than what is listed on their résumés. They don't tell voters how they would rule on cases. And tactics common in other types of political campaigns -- negative ads, personal attacks, groundless accusations -- are supposed to have no place in a race for the black robe.

But this year's contest for an open seat on the Illinois Supreme Court promises to lower the conduct bar to the basement.

The 5th Judicial District race pits Nashville Republican Lloyd Karmeier, a trial judge from Washington County, against Glen Carbon Democrat Gordon Maag, an appellate-court judge. The winner will be determined in November by voters living in 37 Southern Illinois counties, including Madison County, which business groups recently dubbed the nation's "judicial hellhole" because of plaintiff-friendly verdicts.

Two organizations battling over legal reform in Illinois, the business-backed Illinois Civil Justice League and trial-lawyer-financed Victims and Families United, are stoking the fires in this contest. Each organization is helmed by public-relations pros who are also political-campaign veterans. Not only have they mastered the art of spin, but they're also adept at forcing answers to loaded questions, the "When did you stop beating your wife?" inquiries designed smear reputations, impugn integrity, and grab voters' attention.

The early negative tone of the race concerns Mary Schaafsma, judicial-reform project director for the Illinois Campaign for Political Reform, a Chicago-based nonpartisan organization that promotes honest elections.

"Normally campaigns don't really get ratcheted up until after Labor Day," Schaafsma says. "I think this is a portent of things to come."

The Supreme Court, whose members serve 10-year terms, is important not only because it has the final say in interpreting Illinois laws but also because it has struck down as unconstitutional previous legislative attempts to enact tort-reform packages.

Through the 1990s, the state's high court had four Democratic members and three Republicans. But in 2000, Democrats gained a fifth justice when voters in the 3rd Judicial District, traditionally a Republican stronghold, elected Thomas Kilbride. According to the ICPR, Democrats provided "unprecedented financial support" to a candidate who had never served as a judge.

Two years later, both parties pulled out all stops in the 4th Judicial District contest: The Washington, D.C.-based American Taxpayers Alliance independently spent $250,000 to support incumbent Rita Garman; the Democrats dumped about $222,000 into the campaign of Garman's unsuccessful challenger, state Appellate JudgeSue Myerscough of Springfield.

This year's 5th Judicial District race is likely to be the Republican Party's last opportunity to narrow the gap on the Supreme Court until 2010, when another seat opens.

For the GOP, it's an uphill fight: Since 1970, the 5th Judicial District seat has been held by a Democrat from Madison County or neighboring St. Clair County.

What is supposed to set judicial campaigns apart from other political campaigns is Illinois Supreme Court Rule 67. It bars judicial candidates from endorsing or opposing other candidates on the ballot and from making statements that "commit or appear to commit the candidate" to ruling a certain way or take a stand on issues that could come up later in a case before the judge.

Asked why he's running for the seat, Karmeier -- a 64-year-old 20th Circuit Court judge who has been on the bench since 1986 -- says, "I thought it was time that the voters of the district had an opportunity to consider someone outside the Madison County area, someone with a more balanced, conservative point of view. With the perception of problems there, I think it is time for a change."

Asked why he's running, Maag says, "Everything I've done has been an effort at excellence, and I believe I can bring that excellence and those experiences to the Illinois Supreme Court in order to make sure that the people of Illinois have the best judicial system in the nation."

The 53-year-old judge, who is also running to retain his appellate-court seat (a job he'd relinquish if he were to win the Supreme Court race), cites as examples his undergraduate days at St. Louis University and his service in the Reserve Officer Training Corps, from which he graduated as one of the top five cadets in the nation, going on to become an Army Ranger and paratrooper with the 101st Airborne Division. Then it was off to the University of Mississippi School of Law, where he graduated first in his class.

"My opponent never tells you of any academic excellence," Maag says. "I assume he would, if he achieved academic excellence."

Karmeier notes that he was valedictorian of his high-school class, went to the University of Illinois and graduated with "A's and B's -- had C's in there, too." At the University of Illinois College of Law, he was in the top quarter of his class. These are all fine achievements, he says, given his background.

"I grew up on a farm," Karmeier says. "My parents encouraged us to go to college even though neither one of them had completed high school."

Maag, Karmeier notes, is the son of a St. Clair County lawyer: "I guess I rely more on what I've done outside the academic world."

Outside the academic world, Karmeier clerked for Illinois Supreme Court Justice Byron House -- the last Republican elected to represent the 5th District on the Supreme Court. He was the Washington County state's attorney for four years and a small-town lawyer with a general practice. Between clerking, serving as a state's attorney, and working in a small community, he practiced for 22 years before spending the last 18 years on the bench.

Maag -- who represented doctors, hospitals, and insurance companies at a Belleville firm before switching to plaintiff personal-injury work with the Wood River-based Lakin Law Firm -- says, "I have defended doctors, insurance companies, and hospitals. My opponent has never represented a doctor in a courtroom in the United States in a medical-malpractice case. That's just a fact. Now, would you take your car to a mechanic who had never fixed a car?"

But according to the Illinois State Bar Association's judicial survey, Karmeier is rated as "highly qualified," the best recommendation that can be given. Maag received only a "qualified" rating. Of the eight rankings, Karmeier was rated higher in the following categories: meets requirements of office, integrity, impartiality, temperament, court management, and sensitivity.Maag scored better in the categories of health and legal ability.

Karmeier may have the better rating from the bar, but Maag has raised more money. According to the ICPR, at the end of the March primary, in which both candidates ran unopposed, Maag reported contributions of $135,049, most of which came from personal-injury attorneys in Southern Illinois, including the Wood River-based personal-injury and asbestos firm SimmonsCooper. That firm recently made headlines when it asked corporate defendants in numerous cases to disclose whether they'd supported organizations, including the ICJL, that had "designated Madison County, Illinois and/or the Third Judicial Circuit as a 'judicial hellhole.'"

Maag has also received money from the Lakin Law Firm, his former firm, which has a national reputation for representing plaintiffs in asbestos cases. The Lakin firm grabbed media attention last year when it tried to subpoena four people, including Ed Murnane, the executive director of the pro-business Illinois Civil Justice League (ICJL). Murname was served after he criticized Madison County's judicial system on the courthouse steps in Edwardsville.

Maag says he's set a contribution limit of $2,000 per donor for his campaign and that he has returned money exceeding that amount: "I challenged my opponent to do the same, but he refused."

But Murnane, who is backing Karmeier, says Maag is getting multiple donations from lawyers affiliated with the same firms. In the case of SimmonsCooper, donations to Maag from individual lawyers with the firm total $20,000.

Maag asks, what's wrong with that? "They're people, they're individuals," he says. "If they want to contribute, how can I tell them they cannot?"

At the end of the primary cycle, Karmeier had $122,493 in campaign receipts. Although he has also received money from lawyers and the medical profession, his biggest backer is the ICJL's political-action committee, JustPAC. It paid for a mailing supporting the judge worth $31,250. In the general election, JustPAC has given Karmeier's campaign $5,000 in cash.

Asked about the primary expenditure by JustPAC, Karmeier says, "The information I have about funds that are in our campaign coffers comes primarily from newspapers. I don't know who is contributing or what amounts."

Both sides say that, from newspaper accounts, they are aware of what the other side is receiving and from whom.

Maag notes that the Chicago Tribune has said that tort-reform supporters were prepared to raise as much as $3 million to elect Karmeier. The newspaper attributed the statement to ICJL's Murnane. "You tell me who has got the big bankroll, and what did he have to promise for $3 million?" Maag asks.

When Illinois Times posed Maag's question to Karmeier, the Republican was incredulous. "He said that? I can't believe that. I have not been asked to make any promises. People who know me know that they would be escorted out the door. This is Washington County, not Madison County."

Murnane says when he was interviewed by the Tribune, he speculated that as much as $3 million would be spent by both sides in the race, not just the pro-Karmeier camp. Murnane says JustPAC has about $65,000 to spend, money that will be used in several races.

And he adds, "The suggestions that Judge Maag would make are very offensive, and they're offensive not only to us but also to every candidate who we've supported in the past." Murnane says ICJL-supported candidates have included Supreme Court Justices Mary Ann McMorrow, a Democrat, and Rita Garman, a Republican.

Murnane's organization, the ICJL, has been in the spotlight for a several years. Active in other judicial campaigns, the organization has close ties to the Illinois and U.S. Chambers of Commerce. The U.S. Chamber has vowed to try to get pro-tort-reform judges elected around the country.

But what distinguishes the 5th Judicial District contest from others is the emergence in February of the pro-lawyer group Victims and Families United (VFU).

The Madison County-based group bills itself as a grassroots group that represents plaintiffs and their family members who have been victimized by medical errors. VFU spokesman Doug Wojcieszak says his brother died in 1998 of a misdiagnosed heart condition as a result of medical negligence that occurred in Ohio. His parents sued and settled the case for a amount that remains confidential.

Wojcieszak has worked for the Illinois House Republicans. He also served for a year as the executive director of Illinois Lawsuit Abuse Watch, a tort-reform group. Wojcieszak left, he says, because it wasn't his "cup of tea." But in the biographical information for his public-relations consulting firm, Tactical Consulting -- an assumed name for Wojcieszak and Denton LLC -- he boasts that he has "placed over 200 stories on lawsuit abuse with television, radio and print media."

He declines to say just how much his public-relations firm is getting paid for him to act as spokesman for the group. Although he acknowledges that VFU gets money from trial lawyers, he refuses to identify them or reveal the amount of money they've given. Because the not-for-profit is only a few months old, its public IRS filings won't be available until well after the election.

Though Wojcieszak says his group isn't endorsing anybody, it hasn't stopped VFU from vociferously attacking Karmeier, most recently for accepting campaign contributions from JustPAC. ILCJ failed to file an annual registration report with the secretary of state's office, resulting in an administrative dissolution.

"We just think it's rather interesting that a guy running for Supreme Court -- and judges are supposed to be all about the law -- the largest contributor doesn't follow the law," Wojcieszak says. "I think it shows a lack of integrity, [and] it should raise questions about his management and administrative skills."

He also points to a letter written by Patrick J. Kelley, a law professor at Southern Illinois University, for a Jackson County fundraiser held for Karmeier. The letter noted a St. Louis Post-Dispatch editorial that described Madison and St. Clair counties as "lawsuit heaven" and that the judicial systems of those counties are "widely perceived as unfair."

Although the letter wasn't written by Karmeier, Wojcieszak believes that it commits him to ruling a certain way. When he faxed over the fundraising letter, he wrote that it "scares and concerns us greatly."

Wojcieszak claims that "big tobacco" is simply using Karmeier to secure a spot on the Supreme Court because "Madison County's judges and lawyers have the courage to stand up to [Philip Morris] and hold them accountable."

Yet even he admits that Karmeier's campaign-finance reports show no money from tobacco companies.

And when asked whether VFU is simply a mouthpiece for trial lawyers in Madison County who also have an interest in the Supreme Court race, he says, "I think the thing that the public needs to keep in mind is that whatever trial lawyers give support groups like our pales in comparison to the amount of money big tobacco is tossing into Southern Illinois and particularly the Metro East to try and sway the Supreme Court election."

Against the backdrop of charges and countercharges, the Illinois Campaign for Political Reform seems to be faced with the impossible goal of stamping out the nastiness.

Schaafsma says, "While we know we can't keep third-party advertising out, we hope that the level of vitriol and misleading advertising can be kept at a minimum."

What she'd like to see is a committee to monitor third-party advertising. She's negotiating with both campaigns in the hopes of setting up the committee, which would work "hand in glove" with the Illinois bar's tone-and-conduct committee, which is guided by Rule 67. Schaafsma envisions her committee educating the voters and the bar's committee enforcing Rule 67.

But Rule 67 is a standard without teeth. Schaafsma can't recall any Illinois race in which a judge has been prevented from taking office because of negative campaign conduct.

Nevertheless, she believes a monitoring committee is worth a try. It hasn't been done in Illinois but has been used in Ohio, another state with contentious judicial races. Negotiations are ongoing, but Schaafsma hopes that the campaigns will take her group up on the proposal.

"We're troubled by this level of judicial advertising, and you can count on us to be there to speak out against this kind of vitriol at every opportunity," Schaafsma promises. "And so we're hoping -- and I have every reason to believe it will -- that the state bar of Illinois will take on that kind of role as well."

Who votes?

The 5th Judicial District, which covers Southern Illinois, includes these counties: Alexander, Bond, Christian, Clay, Clinton, Crawford, Edwards, Effingham, Fayette, Franklin, Gallatin, Hamilton, Hardin, Jackson, Jasper, Jefferson, Johnson, Lawrence, Madison, Marion, Massac, Monroe, Montgomery, Pope, Perry, Pulaski, Randolph, Richland, St. Clair, Saline, Shelby, Union, Wabash, Washington, Wayne, White, and Williamson.

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