Posted September 8, 2015 2:52 PM

High court poised to examine three blockbuster cases

By Andrew Maloney
Law Bulletin staff writer

This could be a month to remember at the Illinois Supreme Court.

In its upcoming term, the state’s top judges could rule on a multibillion-dollar verdict, decide the fate of a frozen embryo case and hear arguments on a decades-old precedent denying some legal claims for unmarried couples.

The court will convene for its September term next week after taking a three-month summer break. It’s slated to hear oral arguments in 22 cases beginning a week from today. At some point, it will also issue decisions in cases it has taken under advisement, including Sharon Price v. Philip Morris, No. 117687.

The $10.1 billion verdict against the Philip Morris tobacco company was premised on violations of the Consumer Fraud Act for using “light” and “low-tar” descriptions to make cigarettes seem safer.

The verdict was tossed out by the high court 10 years ago, but re-ignited by a Federal Trade Commission brief in a different case that said the federal government never authorized cigarette-makers to use those descriptions.

Plaintiff lawyers involved in the case, from firms such as Korein, Tillery LLC; Power, Rogers & Smith P.C. and Clifford Law Offices have long claimed Justice Lloyd A. Karmeier knowingly took campaign contributions from groups associated with Philip Morris in his 2004 election, then voted in favor of the company in the case.

Karmeier has denied that claim, saying in a brief last year that it was “based entirely on conjecture, innuendo and speculation” and that their calls for him to recuse himself from the case are unwarranted.

Last year, the plaintiff firms spent around $2 million trying to make him the first Illinois Supreme Court judge to lose a retention election. He won slightly more than the 60 percent of the vote needed to keep his seat.

“It certainly would make for a great novel, regardless of what side you’re on, or how one perceives the various arguments out there,” said John M. Fitzgerald, a partner at Tabet, DiVito & Rothstein LLC and member of the Appellate Lawyers Association.

But he said the most interesting parts of the case for him are the “drier legal issues.”

Both Philip Morris and lawyers for the plaintiffs — a class of more than 1 million Illinois cigarette-buyers between 1971 and 2001 — were in Springfield for arguments in May.

The company was represented by former Gov. James R. Thompson, among others, and argued the amicus brief was merely a new legal claim, not new evidence that would give the plaintiffs standing to have the Supreme Court look at the ruling anew.

“This is my own academic interest in the case,” said Fitzgerald, who is not involved in the case. “What is the relationship between courts — state and federal — and the administrative state? And what deference should courts give to administrative orders? To me, even more so than this long-running saga, even more so than the amount of money at stake, that is the most consequential issue.”

At the end of the month, the high court will also determine whether to hear a man’s arguments against allowing his ex-girlfriend to use pre-embryos they created to have a biological child.

Szafranski v. Dunston, No. 119428, could have far-reaching implications for fertility, contract and family law.

An appeals court ruled in June that by agreeing to donate sperm to create pre-embryos during a phone conversation, Jacob Szafranski entered into an oral contract with his then-girlfriend Karla Dunston — who was about to become infertile after chemotherapy — to create a child.

The oral conversation conflicted with an informed consent agreement provided by Northwestern University Fertility Clinic and signed a day later by both Szafranski and Dunston. The agreement stated that the clinic would not release the embryos without both parties’ permission.

But that agreement also had a provision deferring to any agreements made directly between the two. And 1st District Appellate Justice Laura Liu wrote that Dunston’s interest in becoming a biological mother trumped Szafranski’s interest in not becoming a father.

The Supreme Court declined to hear the case two years ago after the appellate court overturned a trial court’s decision based on a procedural matter. The trial court granted summary judgment for Dunston.

That panel laid out a new process for deciding the case that a different trio of appellate judges ultimately followed to reach its conclusion earlier this year.

The high court will most likely decide whether to hear the case by the end of the month.

The court will almost certainly hear a Cook County judge’s challenge to the 1979 decision that said unmarried couples can not take certain legal actions if they ultimately split up.

In Blumenthal v. Brewer, No. 118781, the high court will delve into a lawsuit that began when Cook County Circuit Judge Eileen M. Brewer and her former domestic partner, Dr. Jane Blumenthal, disagreed on what to do with the Kimbark Avenue home they shared for nine years.

The couple raised children and lived there together years before the state recognized civil unions or same-sex marriages. But after they split in 2008, Blumenthal filed a suit to have the home legally partitioned. Brewer alleged unjust enrichment, an implied contract claim that stated she made payments on the home even though Blumenthal, a doctor, earned more money.

Blumenthal filed a motion to dismiss, arguing that the 1979 decision in Hewitt v. Hewitt said nonmarried co-habitants could not use implied contract claims.

However, an appellate court in 2014 wrote that the precedent in Hewitt “is no longer justified” because Illinois’ public policy toward “nontraditional” relationships has changed significantly since then. Laws allowing for nonmarried co-habitation, same-sex marriage and no-fault divorce are evidence of that, Brewer has argued.

The dispute over the home has been settled, so the case focuses on the legitimacy of the 36-year-old Hewitt precedent.

Kirk C. Jenkins, a partner at Sedgwick LLP and high-court observer, said he would be “mildly surprised” if the high court voted to keep the Hewitt precedent.

In domestic relations cases, he said, “their voting records have tended toward (being) a little bit more liberal, a little bit more equity-driven, a little bit more willing to step away from the more long-standing rules and such.

“They’re going to be hard-pressed not to overrule Hewitt,” he added.

Arguments in that case are slated for Sept. 23.

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