SPRINGFIELD – This
fall, Illinois voters will be presented with an opportunity to force one of its
Supreme Court justices to answer to voters for some of his most consequential
decisions through the years – including a ruling that allowed embattled
Illinois House Speaker Michael Madigan to perpetuate his legacy of control over
Illinois politics.
In November, voters in
the Illinois Third Judicial District will vote on whether to allow state
Supreme Court Justice Thomas Kilbride to retain his seat on the court, or force
him to run for reelection. The judicial district covers a swath of 21 counties
running roughly west from suburban Will and Kankakee counties through LaSalle
County and Peoria County to the Quad Cities. It includes the cities of Joliet,
Peoria, Kankakee, Moline, Rock Island and Galesburg.
Kilbride has been on
the court since 2000, after 20 years of work as an attorney in Rock Island. He
served as chief justice on the court in 2010, the same year voters provided the
necessary 60 percent to retain him for another 10-year term on the court.
He will need 60
percent again this fall to earn 10 more years.
In his two decades on
the state high court, Kilbride has authored a number of consequential rulings.
Few, however, have equaled the weight of a decision Kilbride authored in
2016.
In the so-called
Independent Maps decision, Kilbride sided with three other state Supreme Court
justices from Chicago in upholding the power of Michael Madigan and state
Democrats to control the process of drawing the map from which Illinois voters
choose the representatives who, in turn, have voted repeatedly to reinstall
Madigan and his supporters into high positions of power in Springfield.
The decision blocked
voters from having even the chance to vote on the “Independent Maps”
initiative. If approved by voters, the proposed constitutional amendment would
have put an end to gerrymandered state legislative districts which critics say
make it all but politically impossible to up-end Democratic control of the
state legislature.
Organizers of the
amendment initiative had planned to establish a redistricting commission under
the state’s Auditor General, with citizens applying for membership.
Kilbride found the
proposed constitutional amendment unconstitutional, writing that it would
assign a time consuming and resource intensive task to the Auditor General. He
further found that a mandate for the Auditor General to evaluate ethical
conduct and partisan leanings of each applicant would likely require
considerable effort, time and expense, and would fall outside the
constitutional duties of that office.
Democratic Justices
Thomas Freeman, Anne Burke and Mary Jane Theis, all of Chicago, concurred.
Three Republican
members of the court dissented. In his dissent, Justice Robert Thomas wrote:
“The Illinois Constitution is meant to prevent tyranny, not to enshrine it.”
Justices Lloyd Karmeier and Rita B. Garman joined with Thomas in the dissent.
Plaintiff-friendly
rulings through the years
After 20 years on the
bench during a time when the Illinois Supreme Court has significantly curtailed
the reach of the trial bar, Kilbride’s record stands out with many lone
dissents that cling to the Court's former tradition of plaintiff friendly
rulings.
His dissents show he
would restore class actions to their bonanza days, indulge forum shopping, and
expand asbestos litigation.
Just last month,
Kilbride and Justice P. Scott Neville – a Democrat who is also running this
November in for the Freeman vacancy in Cook County - reluctantly concurred in a
7-0 ruling that plaintiffs from other states couldn’t join mass action suits
against Bayer in Madison County.
Bayer, maker of the
contraceptive device Essure, argued that non-Illinoisans were precluded from
suing in Madison County based on the landmark U.S. Supreme Court ruling in
Bristol Myers Squibb in 2017.
Kilbride and Neville
conceded that the U.S. Supreme Court eliminated the practice, but they agreed
with a dissent of Justice Sandra Sotomayor.
“In my opinion, there
is nothing fundamentally unfair or inefficient about allowing an Illinois court
that has jurisdiction over an Illinois resident’s claims to adjudicate the
largely identical claims of a nonresident plaintiff,” Kilbride wrote.
Last year, Kilbride
dissented alone when the Court threw out a consumer fraud suit under the
voluntary payment doctrine. He found the doctrine incompatible with consumer
fraud law and wrote that more than 60 percent of common law countries have
abolished it.
In another 2019
decision, he and Justice Neville dissented from an opinion allowing Wisconsin
Central Railroad to file a counter claim against an employee.
Kilbride wrote that
Wisconsin Central sought more than $1 million in damages to two trains and
tracks and reimbursement for environmental cleanup.
“Those damages will
almost certainly eliminate any recovery by plaintiffs for their personal
injuries,” he wrote.
Also last year, in a
suit from Richland County, the Court dismissed conspiracy claims against
asbestos defendants Owens-Illinois and Pneumo Abex.
Kilbride dissented
alone, relying on a theory that revolves around Metropolitan Life Insurance and
reaches back about 80 years.
He wrote that a
reasonable person could conclude from a vast collection of evidence that
defendants conspired with others to suppress information: Whether and when
Owens-Illinois withdrew from the conspiracy presented a question of material
fact, and evidence could establish a conspiracy continuing through the time of
plaintiff’s initial asbestos exposure.
In 2018, he dissented
alone from an opinion relieving subcontractors of liability for defects in new
homes.
“The purchaser of a
new home relies not only on the competence and integrity of the builder vendor
but also on the competence of the subcontractors,” Kilbride wrote.
The Court ruled for
Union Pacific in 2017, and Kilbride specially concurred to propose jury
instructions that would lower the threshold for liability.
He recommended an
instruction that, “plaintiff may recover if the railroad’s negligence played
any part, even the slightest, in bringing about the injury.”
In another decision in
2017, he dissented alone from an opinion clearing the Chicago Park District of
liability for punitive damages in an accident on a sidewalk.
In 2016, Kilbride
dissented alone from an opinion clearing Union Pacific of liability for an
accident that severed the legs of a contractor on a bridge removal project.
He wrote that the
critical inquiry was whether the railroad retained sufficient control over the
contractor.
In 2015, he and
Justice Freeman (who passed away in March) dissented from an opinion barring a
former employee’s asbestos exposure suit against Ferro Engineering. The
majority found that exclusive remedy lay in workers’ compensation law and
occupational disease law.
Also in 2015, for a
second time the $10.1 billion “light cigarettes” case out of Madison County
against Philip Morris came before the court and five Justices knocked it down.
Freeman and Kilbride dissented a second time.
The majority found
federal law preempted state law because the Federal Trade Commission authorized
light and low tar labels.
In dissent, Kilbride
wrote that the FTC never authorized the descriptors at issue.
He wrote that the
majority asserted that staff interpretation might be a sufficient basis for a
finding of specific authorization and formal rule making.
“Opening the door to
informal policy advice could lead to absurd results,” he wrote.
In 2013, Kilbride
dissented alone from immunity for an emergency crew, rejecting a plaintiff’s
claim for workers’ compensation from injuries in an accident on the way to a
job.
In 2012, the Court
transferred an asbestos exposure suit against Illinois Central Railroad from
St. Clair County to Mississippi.
Kilbride dissented
alone and wrote, “The defendant has train operations in Illinois and maintains
a corporate presence in Illinois.”
He dissented alone
from an opinion clearing Indiana Harbor Belt Railroad of liability in a child’s
death, writing that the railroad knew children regularly and repeatedly
trespassed and attempted to board moving trains, or climb over and through
them.
He dissented alone
from an opinion setting a statute of limitations in a car crash at two years,
arguing for three years under Wisconsin law.
He dissented alone on
punitive damages where jurors awarded $1.75 mllion, a judge awarded $650,000,
and the Supreme Court awarded $65,000.
He questioned the
deterrent value of the award.
In a wrongful death
suit from St. Clair County, he dissented alone from an opinion finding Keeley
Construction didn’t spoil evidence by disposing of a bridge beam.
“This court has never
construed the plaintiffs’ burden in such an unjust and unyielding manner, and
it is particularly inappropriate under the unique factual circumstances of this
case,” he wrote.
In another suit over
ice, he and Freeman dissented from a finding of immunity for the Chicago Park
District.
“The mounds of snow
and ice would not have existed without the negligent snow removal activity,” he
wrote.
In 2011, when the
Court allowed a class action defendant to “pick off” a plaintiff with cash,
Kilbride concurred but proposed reform.
He wrote that the U.S.
Supreme Court, the U.S. Seventh Circuit, and an Illinois appellate court have
criticized pickoffs.
He and Justice Mary
Jane Theis dissented from an opinion finding the Sierra Club lacked standing to
sue over disposal of furnace dust in Peoria.
In 2010, he dissented
alone from an opinion reducing a $1 million award of punitive damages to
$86,100.
He wrote that the
nature and enormity of the wrong and the liability of the defendant were beyond
question.
He joined Freeman in
dissent when the Court affirmed First District appellate judges in reversing a
verdict against Chicago Transit Authority.
“Certainly it is not
unduly burdensome for a conductor to warn passengers as they alight from a
train to watch for ice on the platform,” Freeman wrote.
In December 2009, he
partially dissented from an opinion granting summary judgment to Bayer on a
consumer fraud class action in St. Clair County.
He found judgment
premature, writing that it deprived the parties of the opportunity to develop
the issues.
On April 16, 2009, the
Court erased a $2,368,000 jury verdict in a wrongful death suit against
mesothelioma defendant Weil-McLain in Vermilion County.
A judge reduced the
award by about half as a setoff for amounts other defendants paid prior to
trial.
Five of six Justices
on the case found the judge should have allowed evidence of exposure to
products of other companies.
Kilbride, dissenting
alone, agreed that the judge committed an error but wrote that the error was
harmless.
He wrote that both
parties offered strong evidence on exposure to types and amounts of asbestos
fibers from a variety of sources, and that the majority removed from the jury
the determination of whether a defendant’s conduct is a proximate cause of
injury.
In 2008, Kilbride and
another Justice dissented from an opinion that immunized a Chicago ambulance
crew from a wrongful death suit.
He joined an opinion
that relieved a coach of blame for a sports collision, but he apparently didn’t
like it. In special concurrence he wrote that the pertinent question was
whether a coach’s action was totally outside the range for a certain age and
experience level.
“We cannot
legitimately ignore younger athletes’ greater physical vulnerability or their
limited autonomy from their coaches and sporting organizations in assessing the
propriety of their conduct toward their young athletes,” he wrote.
He dissented alone
from an opinion that extended an employer’s immunity from civil suit under
workers’ compensation law to a joint venture.
In 2007, Freeman and
Kilbride dissented when a majority decided not to reopen the $10.1 billion
Philip Morris case.
“The court’s action
today is entirely predictable because it quickly and quietly closes the book on
a case that the majority of this court, I am sure, would rather forget,”
Freeman wrote.
In 2006, he dissented
alone when the Court enforced an employer’s arbitration clause.
In 2005, the Court
reversed judgment in a case where Williamson County jurors and associate judge
John Speroni awarded $1.1 billion to holders of State Farm automobile policies.
All six Justices on
the case agreed that Illinois consumer law couldn’t apply to transactions in
other states.
Four Justices held
that Speroni shouldn’t have certified a class at all because individual issues
predominated.
Freeman and Kilbride
dissented on class certification, arguing that Speroni could certify proper
subclasses.
“The class action
makes it possible for wrongs which might otherwise go unredessed to be pursued
and righted,” Freeman wrote. “If there was a wrong committed here, as the jury
found, the trial court agreed, the appellate court confirmed, and I would
affirm, State Farm ought to be held accountable therefore to the extent that
due process will allow.”
In 2004, he and
another Justice dissented from enforcement of a provision in a consumer
contract for mandatory binding arbitration of disputes.
Kilbride wrote that
the provision effectively cut off the rights of all consumers to any
opportunity for judicial recourse.
In 2003, Kilbride
argued in solo dissent that the law on credit service organizations should
apply to a home repair business that arranged a loan for a customer.
Also in 2003, the
Supreme Court ordered transfer of a suit against Union Pacific Railroad from
Madison County to Macoupin County.
Justice Charles
Freeman wrote that the majority agreed with the railroad that the plaintiff
engaged in forum shopping.
“The record strongly
indicates that a trial in Macoupin County would better serve the convenience of
the parties and the ends of justice,” Freeman wrote.
He found Macoupin
County’s connection and interest strong, and found Madison County residents
shouldn’t be burdened with jury duty.
Kilbride dissented
alone, writing that Madison County had an interest in litigation involving a
corporation that operates facilities within its borders.
He wrote that just as
some plaintiffs choose a forum for a perceived advantage, some defendants move
for transfer “because they believe that an alternative forum would be more
friendly to their interests.”
In 2002, he and
another Justice dissented from a ruling that neither the maker nor the owner of
a trampoline had a duty to warn the plaintiff of a risk of injury.
“It could be determined
that the property owner should not have permitted the unsupervised use of the
trampoline,” Kilbride wrote.
He dissented alone
from a decision awarding one percent of damages where jurors assigned 99
percent of blame to a third party employer.
He wrote that the
defendant could recoup 99 percent from the employer.
He and another Justice
dissented from a ruling that a judge correctly granted summary judgment against
a doctor and a clinic.
“The procedure used
here is tantamount to blindfolding the opponent and asking the opponent to
shoot at a moving target,” he wrote.
In Kilbride’s first
month on the Court in 2001, he dissented in favor of a plaintiff.
Four Justices set the
statute of limitations in a medical malpractice suit at a year, while Kilbride
joined two dissenters who would have set it at two years.
Later that year he
dissented alone from a decision against a plaintiff who claimed a clinic and an
insurer improperly released her medical records.