In this Sept. 10, 2013, file photo, Illinois Supreme Court Justice Lloyd A. Karmeier questions an attorney during oral arguments. In arguments filed at the U.S. Supreme Court earlier this year, attorneys representing the original class of about one-million Illinois cigarette buyers — who claimed tobacco giant Philip Morris duped smokers into buying “light” cigarettes — wrote Karmeier’s involvement was a Due Process violation because he made “pejorative public statements” about the plaintiffs’ case during his retention election two years ago. 
In this Sept. 10, 2013, file photo, Illinois Supreme Court Justice Lloyd A. Karmeier questions an attorney during oral arguments. In arguments filed at the U.S. Supreme Court earlier this year, attorneys representing the original class of about one-million Illinois cigarette buyers — who claimed tobacco giant Philip Morris duped smokers into buying “light” cigarettes — wrote Karmeier’s involvement was a Due Process violation because he made “pejorative public statements” about the plaintiffs’ case during his retention election two years ago.  — AP Photo/M. Spencer Green

Twice denied a $10.1 billion judgment by Illinois’ high court, a group of plaintiffs is asking the U.S. Supreme Court to jump in on its 15-year-old cigarette lawsuit.

But instead of simply repeating claims that tobacco giant Philip Morris duped smokers into buying “light” cigarettes, the lawyers are dialing in on an argument that Justice Lloyd A. Karmeier should not have taken part in the case.

In arguments filed at the nation’s highest court earlier this year, attorneys representing the original class of about 1 million Illinois cigarette buyers wrote that Karmeier’s involvement was a due process violation because he made “pejorative public statements” about the plaintiffs’ case during his retention election two years ago.

They also repeated claims that Philip Morris helped bankroll Karmeier’s 2004 campaign for the Illinois Supreme Court — claims that Karmeier denied in a rare filing just before his narrow re-election in 2014.

In their 35-page brief, the plaintiffs wrote that common law requires judges to recuse themselves when there is actual bias or if a reasonable observer would conclude there is a high probability of bias. That includes situations where judges have a direct or indirect pecuniary interest in an outcome; where they have a previous entanglement with a litigant; or where they have been given large or disproportionate campaign contributions.

The plaintiffs argued that two news reports from election night and the day after showed Karmeier was biased against their cause. As the plaintiffs stood to make about $1.77 billion in fees, both stories quoted Karmeier as saying that large lawyers’ fees were “distorting the system.”

One story paraphrased him as saying that they “stood to gain financially if he were ousted from the bench,” and another quoted him as implying his victory could be “a signal that people should not try to manipulate the system for their own financial gain.”

They also wrote that lingering beliefs that Philip Morris’ parent group had indirectly funded his 2004 campaign added up to a perceived bias.

“Given those facts, a reasonable observer would conclude that a high probability existed that Justice Karmeier was biased against petitioners and their attorneys, and that he had prejudged the pending case in favor of Philip Morris,” the plaintiffs wrote.

Stephen M. Tillery of Korein, Tillery in St. Louis and one of the lawyers who signed off on the certiorari petition could not be reached for comment. Lawyers from that firm gave $1.2 million to unseat Karmeier in 2014, according to the Illinois State Board of Elections.

A Supreme Court spokeswoman pointed to a Karmeier filing from 2014 in which he vigorously denied claims that the parent group, Altria, had bankrolled his first campaign, calling it “conjecture, innuendo and speculation,” among other things.

He also noted that the firms who represented Philip Morris donated less than 1 percent of the total he raised that year.

And he wrote that a judge’s “duty to sit” is a high threshold to overcome and since the state constitution requires judges to be elected, it’s inevitable that networks of financial supporters and litigants will get crossed at some point.

Recusal motions would become “tactical weapons” and the legal system “would come to a grinding halt if contributions by organizations and interest groups were sufficient to force a judge to recuse himself or herself in any case in which a member of the group was a party,” he wrote in a September 2014 filing on why he rejected the plaintiffs’ motion to have him bow out of the case.

The plaintiffs’ appeal also asks the nation’s high court to clarify the recusal rules for judges, citing a list of cases in which judges were deemed to have violated due process by acting in a biased manner against certain litigants on and off the bench.

“As the above cases show, judges make public statements about litigants and attorneys in a variety of contexts, including election advertisements, statements to journalists, legal filings, public speeches, prior careers as prosecutors and other cases involving the same litigant or similar legal issues,” they wrote. “Guidance from this [c]ourt on how such statements affect the inquiry of whether due process requires recusal would greatly assist the lower courts.”

At the very least, they wrote that the high court should keep their appeal handy until it decides the case of Williams v. Pennsylvania, which deals with the Pennsylvania Supreme Court’s chief justice, who ruled in a capital punishment case even though he was the prosecutor who initially decided to seek the death penalty.

That case also deals with the relevance of judicial statements made during a campaign.

Michele L. Odorizzi, of Mayer, Brown LLP and one of the attorneys for Philip Morris, referred questions to an Altria spokesman.

The case, Sharon and Michael Fruth v. Philip Morris, has taken countless turns since it began in the early 2000s. A trial judge in 2003 ruled the company defrauded consumers by branding cigarettes as “light” and “low tar” to make them safer, awarding a total of more than $10 billion in damages to the plaintiffs and the state.

But it was reversed by the Illinois Supreme Court in 2005 in a 4-2 decision, with Karmeier writing that the plaintiffs didn’t prove they were harmed and other justices writing that the Federal Trade Commission had authorized use of the terms.

A few years later, plaintiffs cited as new evidence from FTC memos that said the terms were never authorized and an appellate court in 2014 reinstated the verdict. The state’s top court took the case again and last year ruled the plaintiffs used the wrong procedure to bring their case back to the court.

But when they tried to follow the remedy the court prescribed, a “motion to recall the mandate,” the justices denied it earlier this year.

Philip Morris has until March 30 to file its own motion in the case at the U.S. Supreme Court.