The debate over medical malpractice
reforms has drawn national attention
to Illinois? lone Supreme Court race
by Kevin McDermott
The November election for the Illinois Supreme Court’s Fifth District will be about more than filling the high court’s sole vacancy.
To the lawyers, doctors, insurance companies and representatives of other special interests who have lined up on either side, it is perhaps the most important battle yet in the ongoing war over tort, or civil law, reform — a war in which the front lines were drawn through the rural towns and rust-belt river communities of southern Illinois long before this Supreme Court campaign began.
At stake is the court district that takes in the whole southern quarter of the state, 37 counties from East St. Louis to Lawrenceville, reaching as far north as Taylorville. It’s an area long ruled by “Republicrats” (socially conservative Democrats), but home to a civil litigation system so aggressively pro-plaintiff that it has become a national poster-child for tort-reform groups and corporate political action committees trying to rein in legal bills stemming from consumer complaints.
Incumbent Justice Philip Rarick, a Madison County Democrat who was appointed to the court in September 2002 to replace retiring Justice Moses Harrison, has declined to run for a full term this year. Seeking to replace him are Fifth District Appellate Court Justice Gordon Maag of Glen Carbon, a Democrat; and 20th Circuit Judge Lloyd Karmeier of Nashville, a Republican.
The outcome won’t change partisan control of the court (it’s currently made up of five Democrats and two Republicans). But as the first southern Illinois Supreme Court race in 12 years, and likely the last for any seat on the court until 2010, the campaign is getting heavy state and national attention — in part because it’s being conducted in the shadow of intense and yet-unresolved statewide debate over tort reform.
Though neither candidate has said how he would rule if lawsuit caps or other tort-reform issues came before him (a likelihood for the next court), it’s clear that special interests on both sides view this as a race about the future of the state’s civil litigation system.
Organizations, including the U.S. Chamber of Commerce, have declared the Illinois race a beachhead in its nationwide attempt to limit lawsuit awards. Trial lawyers both in and outside of Illinois have fired back with massive Illinois Democratic Party campaign contributions that some have acknowledged are designed specifically to help fend off changes in the state’s tort system.
“While the traditional tort-reform debate has been in the legislature, it has now turned to the Supreme Court,” says Mary Schaafsma, judicial reform project director for the Illinois Campaign for Political Reform, which tracks trends in campaign finance and special-interest influence. “It could be that [both sides] have decided it may be easier to convince seven people [on the court] of a position than the whole legislature,” she says.
“What’s tracking here is what we’ve seen in other states, especially Ohio and Michigan,” she adds, noting that the U.S. Chamber of Commerce has publicly vowed to spend tens of millions of dollars on state court races in Illinois and other key states with an eye toward making the courts more business-friendly. And the Illinois chamber took the unprecedented step of endorsing a judicial candidate: Karmeier.
“The other side has responded through more traditional channels,” she says, citing $500,000 given by a handful of trial attorneys to the Illinois Democratic Party earlier this year.
Further stoking widespread interest in the race, the seat represents the state’s southern-most district and is anchored by the Metro East-St. Louis region and Madison County — long pegged by medical and business groups as one of the nation’s most hostile jurisdictions for corporate and medical malpractice lawsuit defendants.
“With Madison County as the backdrop for this, it provides both sides an opportunity to highlight the issue,” says Schaafsma.
The medical and insurance lobbies, backed by state Republicans, claim that out-of-control lawsuit awards are driving up the premiums doctors pay on malpractice insurance, causing doctors to leave the state. They want caps on noneconomic damages (also called “pain-and-suffering”) and other reforms.
Plaintiffs’ attorneys, generally backed by state Democrats, have acknowledged that malpractice insurance premiums are too high and that some areas of the state are facing doctor shortages. But they blame the insurance companies, alleging they are “gouging” doctors, using a false public perception of runaway litigation as justification to increase rates.
Democrats at the end of the spring legislative session lined up behind a still-pending reform package that would better screen out frivolous lawsuits and protect doctors’ personal assets — but wouldn’t impose the caps that doctors and their Republican allies say are needed. Negotiations over the issue are expected to continue this fall.
Any reform law that eventually comes out of that process is almost certain to end up being challenged before the state Supreme Court, putting a heavy premium on the outcome of the current court race.
In addition, the Fifth District Supreme Court justice will generally be allowed by the court to fill vacancies that arise within the district’s circuit courts, including Madison County. That has some pro-business interests viewing the race as a chance to break what they say is a vicious cycle of plaintiffs’ attorneys becoming judges and then appointing their fellow plaintiffs’ attorneys to the bench.
“There is a very cozy relationship between the plaintiffs’ bar, the Democratic Party and the judiciary” in Madison County, says Ed Murnane, president of the Illinois Civil Justice League, a pro-business group that has spent years trying to impose limits on lawsuit awards and now is heavily backing the Karmeier campaign. Maag, Murnane says, is “part of that system” as a former Madison County attorney and, later, an associate circuit judge.
“This race is not just about Lloyd Karmeier and Gordon Maag,” Murnane says. “It’s also about the direction and the future of the judiciary in southern Illinois.”
Maag argues that the cozier relationship is between Karmeier and state and national business interests that are the largest contributors to his campaign — the very interests that would stand to benefit most if lawsuit caps were imposed.
Records show Karmeier raised $180,863 in monetary donations during the first six months of 2004, with much of that in lump-sum amounts of $5,000 or more from corporate, medical and insurance interests from all over the country. Maag was lagging with $52,905 in monetary donations during that time, with no individual cash contribution exceeding the $2,000 limit Maag has unilaterally imposed on his donors.
“I have an opponent who has spent the last 10 months speaking about large contributions, but the only large contributions we’ve seen have been from his contributors,” says Maag. “He’s got tens of thousands of dollars from insurance companies from all over America.”
Maag was born in 1951 in East St. Louis, long part of the Democratic core of the Metro East region. He graduated at the top of his class at the University of Mississippi in 1979. He worked for the Metro East law firm of Lakin & Herndon. He was appointed in 1989 as an associate judge in the Third Circuit, which includes Madison County. He was appointed to the Fifth District Appellate Court in 1992, then elected to a 10-year term in 1994. He is married and has two adult sons.
In the campaign, Maag stresses his experience, including his work as an attorney arguing appeals in front of the Supreme Court. “A candidate for the Illinois Supreme Court ought at a minimum to have handled as an attorney a case on appeal before the Supreme Court and before the Appellate Court,” Maag argues in his campaign position statement. “Further, a candidate ought at a minimum to have participated as a judge in an appellate court at some time.”
Karmeier was born in Okawville, part of the more rural southern Illinois region where the hold of the Democratic Party is less complete than in the Metro East.
He received his law degree from the University of Illinois at Urbana-Champaign in 1964. In 1968, he became a partner in the southern Illinois firm of Hohlt, House, DeMoss & Johnson and served one term as state’s attorney in Washington County from 1968 to 1972. He was elected as a circuit judge in the 20th Circuit in 1986, where he has remained. Karmeier and his wife have two children and five grandchildren.
“I believe that the reputation I developed during my 22 years of general practice of law in a small community, in my 17 years as a trial judge and in my conservative to moderate political beliefs will serve me well as a justice of the Illinois Supreme Court,” Karmeier states on his campaign Web site.
Karmeier and Maag both have backed the notion of “tort reform,” but only in the most general terms. As sitting judges, Maag and Karmeier both have shied from taking detailed positions on lawsuit caps or other specific issues in the tort-reform debate. Supreme Court rules bar judicial candidates from making “statements that commit or appear to commit the candidate with respect to cases, controversies, or issues within cases that are likely to come before the court.”
Their campaign materials, however, hint at their stances.
“Recently, calls have come at the national, state, and local levels for limits on damages in personal injury and medical malpractice lawsuits,” Maag wrote in his campaign position statement. “On occasion, juries and some judges in bench trials award wildly excessive judgments. The converse is also true. On occasion, woefully inadequate awards are made which do not even cover an injured party’s medical bills.
“States such as California found that ‘caps’ on damages alone did not solve the problem. Insurance reform was also required. Since the mid-1980s, Missouri has had caps on noneconomic damages and yet the same problems persist. I support comprehensive legislative action to resolve the matter.”
Karmeier, on his campaign Web site, doesn’t specifically back the notion of caps. But he does take indirect jabs at Maag for the support he receives from the trial lawyers.
“Obviously, lawyers and judges care [about the outcome of the election],” he states. “And out of the lawyers who are interested, plaintiffs’ lawyers, especially in Madison County, those involved in personal injury litigation, have been the most interested, especially if you look at where the money comes from in support of appellate and supreme court candidates.
“I think I am typical of most people from Southern Illinois when it comes to our system of justice. We want it to be fair. We want it to be impartial. We want a level playing field,” Karmeier wrote. “We don’t want any hints or suggestions that our system of justice is being used or influenced by powerful politicians or by lawyers or by any special interest group.”
Nonetheless, campaign finance records covering the first half of 2004 show deep, direct involvement in both campaigns from the special interests that are driving the tort reform debate.
Most of Maag’s itemized cash donations during that six-month period came from attorneys — generally lawyers from southern Illinois, but some from Missouri, Chicago and, in one case, Colorado.
One firm alone, Carey & Danis, a plaintiff’s firm with offices in St. Louis and the Metro East, gave Maag $10,000 in one day. The firm stayed within Maag’s self-imposed $2,000 limit by making five donations of $2,000 each, through three of the firm’s partners and two of their spouses.
Partner Joseph Danis says he and other members of the firm made the donations because of Maag’s reputation for competence, and not specifically because they believed he would be less likely than Karmeier to support caps on lawsuit awards. “Certainly, I didn’t have that in mind when I wrote the check,” says Danis. But, he adds: “The concept of [not] pre-empting peoples’ ability to bring a claim . . . when they’ve been injured is near and dear to us.”
Perhaps more telling than the monetary contributions are the “in-kind” contributions both campaigns have received. In-kind donations are free work conducted for the campaigns, then assigned a monetary value on state campaign finance reports. Such donations often are viewed as a barometer of special-interest involvement in campaigns because they entail more than just writing checks.
Records show Maag’s $31,532 in“in-kind’’ contributions — which don’t fall under his self-imposed $2,000 donation limit — include more than $20,000 worth of media work, consulting, staffing and other support from private vendors paid and coordinated through the state Democratic Party in Springfield.
Records also show that the state Democratic Party during that period received a series of unusual $100,000 lump-sum donations from law firms. Three of those big-donor firms routinely do business in the Metro East area — including Carey & Danis, which made its $100,000 donation to the party at about the same time it was donating directly to Maag’s campaign.
“[Maag’s] largest contributor is the Democratic Party of Illinois, which has received $500,000 from just five people, three of them in the Madison County area,” says Karmeier spokesman Steve Tomaszewski. “You can connect the dots and say that shows there’s big money in the Democratic Party for this race.”
Danis, the law firm’s partner, says the $100,000 donation to the Democratic Party wasn’t earmarked to assist Maag’s campaign. But he says it was a direct response to what he calls “misleading ads” from the “anti-trial lawyer” lobby that have been aired on radio this year — ads by the business and medical lobbies seeking to whip up public support for lawsuit caps at the height of the tort-reform debate in Springfield.
“I was very upset when I heard the advertisements,” says Danis. “I think they’re mischaracterizing the legal system in southern Illinois and ischaracterizing lawyers. We gave the money with the hope that some of it would be used toward educating people who have been misled.”
Karmeier received even more direct special-interest help than Maag did during that six-month period, records show.
Most of the $85,800 in “in-kind” donations to Karmeier’s campaign were provided by professional vendors through JUSTPAC, the Arlington Heights-based political action committee of the pro-business Illinois Civil Justice League. Records show the organization paid for radio ad production, receptions, printing and postage and media consulting for the Karmeier campaign throughout the first half of the year.
Karmeier also raised about four times the amount that Maag did in cash donations. While many of those donations came in the form of small contributions from many individuals, they include major donations from corporate interests — including a single $10,000 donation from the Continental Casualty Co. of Chicago.
Tomaszewski, Karmeier’s spokesman, argues that Karmeier’s broad support makes him as qualified as Maag for the position, though he hasn’t been on an appellate court. “Judge Karmeier has a varied background,” Tomaszewski says. “Our support is coming from Republicans and Democrats, a broad group of grass-roots supporters in southern Illinois.”
Tomaszewski also defends, generally, the notion of choosing a candidate based on where he might be expected to come down on the tort-reform issue once he’s on the bench. “In any election, individual voters have to decide if this guy is in step with their own philosophy,” he says. “You can look at the background of the candidate and you can say, ‘This person is closer to our position.’”
For his part, Maag expresses frustration that campaign fundraising has been such a high-profile issue in the campaign that, he says, the more fundamental topic of judicial qualifications has been neglected.
“There’s more to it than that [money]. That isn’t what it’s all about,” says Maag. “I’m the only candidate in this race who has ever argued an appeal [before the Illinois Supreme Court or state or U.S. appellate courts]. What [voters] need to know is who he is, and who I am.”
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