Document Z4LGxqr4BX5DRxL5z5ZME983Z

1 IN THE CIRCUIT COURT TWENTIETH JUDICIAL CIRCUIT OF ILLINOIS 2 ST, CIAIR COUNTY 3 4 FRANCES E. KEMNER, et al., 5 Plaintiffs 6 V, 7 MONSANTO COMPANY S Defendant 9 ) ) .) ) ) CAUSE NO. 80-L-970 ) ) ) .) 10 REPORT OF PROCEEDINGS 11 Before the HONORABLE RICHARD P. GOLDENHERSH. 12 June 4, 1985 13 14 15 APPEARANCES i 16 MR. REX CARR, Attorney at Law, and 17 MR. JEROME SEIGFKEID, Attorney at Law, On behalf of the Plaintiffs 18 MR. KENNETH HEINEMAN, Attorney at Law, 19 MR. RICHARD CORNEELO, Attorney at Law, MR. JOSEPH NASSIF, Attorney at Law, MR. JAMES CRAVEN, Attorney at Law, and 20 MR. BRUCE RYDER, Attorney at Law, 21 On behalf of the Defendant 22 23 PATRICIA A. GANDY, CSR, RPR 24 Official Court Reporter 1 BE XT REMEMBERED AND CERTIFIED, that heretofore, on to-vlt: 2 June 4 1985, th natter as hereinbefore H t forth came on for hearing 3 bifora the Honorable Richard ? Goldehhersh, Circuit Judge, Twentieth 4 Judicial Circuit, State of Illlnole, and th following vaa had of record, S' torniti 6 7 (The following proceedings were held in chambers ) 8 MR. CAR2U Tour Honor, X called the Clerk of the Court and Jin 9 Craven4a oral advice wee confirmed. She eeld there wee an Order entered In 10 the case allowing the Petition for Leave to Appeal and consolidating that I eaee with the gag order case, and the rule that fits this situation that eaya 12 that the proceedInge ere stayed, while the rule was designed for pretrial 13 end preliminary matters, technically it applies, here, and I don't think we 14 have any option but to comply with the rule until ve have an opportunity to 15 ask the Court for relief from the effect of that rule* That's what the 16 Plaintiff proposes to do lamedlately, because I think they have to be under 17 misapprehension or have not considered the full ramifications of thslr order, 18 and so we will Immediately take steps In the Supreme Court to get relief from 19 the effect of this rule and Order. And X would suggest that we recess this 20 trial until such time aa the Court rules on the motion of the Petition, 21 whatever It might be that we file. But X would expect thee they would give 22 us fairly rapid action sometime within a week or so I would expect they could 23 act upon it* 24 THE COURT! Okay* Mr* Belsesan, have you-- -do you have anything you 1 vane to say? 2 MR* BEXHEMAHx Tour Honor* only that ve would certainly agree vlth 3 the poaltion of the Plaintiff that the rule apparently applies to this 4 altuatlon and require &n automatic atay of the trial pending resolution of 5 the Petition for Leave to Appeal in the Appellate Court that* hearing it, and 6 Z think it should he atoyed. 7 THE COURT: Okay* Z agree* I've read the rule and X think the 8 language 1 unambiguous and X think that it Is automatically stayed until 9 further order of the Court either on special relief or resolution of the 10 Petition before the Supre&e Court* Under the circumstances, X think this 11 1 stayed* The jury* of course, la waiting* X will gat then in the jury box 12 and explain to them that due to some matters ve have to suspend testimony 13 for a while* They will be notified when to cone back. 14 ME* CARR: Just for the record, ve haven't received an official 15 notification of this Order, and ve could proceed today until the Court does 16 Set official notice, hut X see no point In doing thst under the circunstsnces 17 luce ve do have knowledge of It* 18 THE COURT: Yaa, ve 11 have actual knowledge of It, and X don't 19 think it would be appropriate to proceed* This jury has obviously been 20 kdvlsed of times when ve have been back here on aattere that have to be 21 nitslde of their presence* They are aware that they exist and that they are 22 ingoing* X would just explain that due to sons matters outside of their 23 reaence ve have to suspend this for a while end we will notify them when 24 ;o come back. Ha*vs got their telephone numbers and their addresses. That 1 shouldn't bo any problta. So dp you g e n t i u m m a t to be there hen 1 tell 2 the Jury or do you here eay preference one way or the other? 3 M2 HBIHKHASi 1 think I'd Just like to eee the looks on their 4 faces* 5 HE* CARR: They shouldn't be told anything other than that there 6 is to be a recess* ^ 7 THE COURTS Just what X just sold* So whatever you vent to do-- 8 MR* MASSIF: I don't want to be there* 9 UR. B S I S M N i X just thought they would have such an anasad look 10 on their face but X don't really care Judge It doesn't matter to me. II MR. CARR: Xt doesn't matter* 12 THE COURTS X will go back In the Jury room with the court reporter 13 and we will just leave It at that*' 14 MR. HEXHEHAH: One question* X pas just wondering If there le any IS kind of time If we have any Idea how long a period of time we are talking 16 about* 17 THE COURT: I have no idea. 18 CARR: That's up.to the Court* As fer as the-Kotlon la concern 19 1 would expect we would get fairly rapid action oh that within a vaek or 20 two at the moat* Ae far os the Petition for Leave to Appeal la concerned 21 that could ha weeks months Indefinitely. 22 THE COURT: There le no way of telling* 23 MR* MASSIF: X raised the question with tha Court as to whather 24 or not this auoponda not only the trial but any ongoing-- wa 'vs got some 1 In camera that tha Judge la looking at ve've got some radical 2 information that va art coilacting on tha 1984 study, and I naked the Court 3 to clarify vhather thla action auapanda everything. 4 MR, CORHFELDs Discovery-- 5 MR* NASS1P: Discovery aa veil until va get hack In session* 6 7 that. THE COURT: Tbat'a why ve got everybody heck here to talk about 8 MR* COBHFELDi I think in the Clark case It did* When va were in 9 the Clark case Isn't that vhat happened when the Appellate Court agreed to 10 hear an appeal on some Issue, I can't recall, I think that suspended all 11 discovery* 12 MR* CARR: The rule says all proceedings are stayed* .I see no 13 ambiguity about that. 14 MR*. MASSIF: All proceedings. Thank you. 15 TBS COURT: That vlll be my feeling, too. 16 (At this time, the In chambers conference adjourned 17 end the following proceedings were held between Court 18 add jurors only in the jury room.) 19 TEE COURT: Okay, ladles and gsntle&tan, aa you know there are 20 a number of things that by court rule and statute In cases have to he done 21 outside the presence of the jury, end you've heard that explanation a number 22 of tinea* Due to one of those matters outslds tha presence, ve are going 23 to be suspending testimony for a little while and ve vlll notify you by 24 telephone when to come back. X can't give you e definite time or date, but 1 w will do that as oos u ve can. Tha adaonlahaenta that I regularly give 2 you apply during thla break also. You ara not to dlacusa this natter anong ,3 yourselves with anyone outside tha Jury panel or fora any opinions or 4 conclusions yet about the natters on trial You are also not to read 5 listen to or vateh anything about this case In particular or the subject 6 natter in general in any of tha aadia print or electronic. Marlene will 7 notify you aa toon aa you ara to cose back and wa will cake aura we get la 8 touch with all of you* You've all given Mariana your current telephone 9 umber, addresses, all that. Double check with her to neks sure that she has 10 than all and wa will 1st you know as soon as we can retinae. Thank you for II your patience and we will see you soon. 12 13 14 15 16 17 18 19 20 21 22 23 24 I (At 4:10 p.m., the following proceedings were 2 held In chambers between Court and counsel.) 3 MR. CARR: If you are ready, your Honor, I would be happy to put 4 our position on the record. 5 THE COURT: And you might as well address this special appearance, 6 too. 7 MR. CARR: Of course my position Is the^same with regard to the 8 special appearance or the action of this Court to take, should take from 9 this point on. This morning the Court granted us a few minutes recess to 10 allow us to gather our thoughts as to what position we should take In view II of the news that Judge Craven gave us and which I confirmed by a call to the 12 Clerk of the Supreme Court. I was told at that time that the Petition for 13 Leave to Appeal had been granted in the case in the Appellate Court, that It 14 was consolidated with the gag order petition, and more than that, that the 15 Plaintiffs1 motions for costs had also been consolidated and would be decided 16 with the case. 17 At that time, I did not have my file in front of me, and at that 18 time I quite frankly had forgotten the gist and substance of the Appellate 19 Court Order, and I didn't have the Monsanto's Petition for Leave to Appeal 20 In front of me, and I prematurely gave a view as to the effect of the Court's 21 action that I believe now to be Incorrect. The Petition for Leave to Appeal 22 that was granted was filed .by Monsanto under Supreme Court Rule 315, and 23 Rule 315, which takes the Appellate Court's Order and is to determine the 24 correctness of the Appellate Court's Order, and of course Rule 315 provides I :bat Petition may be granted for matters that may appear to be In conflict 2 rlth other jurisdictions or where' decisions need to be clarified or matters 3 ire important or where the Court feels that supervision is needed, and a 4 Lumber of reasons under Rule 315. But the Order, the opinion that was 5 filed in the Appellate Court deals with only jurisdiction of the Appellate 6 !ourt to consider the Petition that had been filed by Monsanto under Rule 7 106. The Appellate Court held that It simply did not have jurisdiction to 8 tntertaln Monsanto's Petition under Rule 306, and because it was untimely, 9 ind that the filing of that Petition was incapable of vesting that Court with 10 jurisdiction to consider the merits of the Petition. II Now, it Is that Order in which the Appellate Court held that it * 12 lid not have jurisdiction from which the Monsanto Defendant filed Its 13 ippearance in the Supreme Court under Rule 315. The Court has granted the 14 'etition under Rule 315 and has now taken the Appellate Court's Order for 15 consideration. So, there is a long line of cases that hold that the 16 lupreme Court will decide only those questions that have been considered by 17 :he Appellate Court. And in this Instance, the Appellate Court has decided 18 whether it does or doesn't have jurisdiction. So the granting of the-- and 19 lule 306 is applicable to Appellate Courts. It is not applicable, there is 20 Lothing in its Order in Rule 306, that suggests It applies to petitions 21 granted by the Supreme Court. The Supreme Court has the innate capacity to 22 mter a stay order If it wishes a stay order to be entered, and obviously 23 Lt need not make a rule that would govern Its own Inherent power. If it 24 ranted to stay these proceedings under Rule 315, It could have done so, but 1 It didn't do so. So now, the Supreme Court has this Appellate Court Order 2 In front of it. It can do without prejudging what the Court means by 3 granting the Petition, because that would take-- it would have to be psychic 4 to know why they granted the Petition for Leave to Appeal under Rule 315. 5 The Court knows that it may affirm the Appellate Court, that is, it may decid 6 that the Appellate Court was right in saying that it lacked jurisdiction, in 7 which case this trial will continue and should continue. It can decide that 8' the Appellate Court was wrong in saying that it lacked jurisdiction and could 9 say to the Appellate Court, "You do indeed have jurisdiction, and so please 10 consider-- 1', stronger language is used in the pleas, but "You are Instructed II to consider the merits of the 306 Petition presented to you by the Defendant, 12 in which case in the event that, that's the Order that- the Supreme Court 13 makes, this trial of course would continue. Now, when it gets back to the 14 Appellate Court, the Appellate Court can make one of two decisions. If it's 15 ordered to consider the Petition on Its merits, it can decide, number one, 16 after having considered the Petition on its merits, it should deny the Petltli 17 Now, in that event, this trial should centime and it's only the 18 granting of the Petition under 306 that requires these proceedings to be 19 stayed or to abate. 20 And in those three circumstances that 1 posed, this trial should 21 continue. It Is only after the Supreme Court decides that it's not going to 22 affirm the Appellate Court, decides that it's going to reverse the Appellate 23 Court and remand it to the Appellate Court, and then after that remandment 24 if the Appellate Court then decides that on the merits it should grant 1 Petition 306, then in that event would this trial abate. 2 Well, those are a lot of contingencies that have not yet occurred, 3 and I feel that they will not occur and certainly we have absolutely no 4 way of knowing unless this Court or counsel are psychic which way the Court 5 is going to ultimately decide this question. Now, if this Court stops this 6 trial today pending an ultimate determination by the Supreme Court, their it 7 may be the same thing as declaring a mistrial, because we don't know wheh the 8 Supreme Court will decide the merits of the Petition. It may decide next 9 October that the Appellate Court should be affirmed, and then for us to 10 pick up our jurors and start trial again^-it may decide next December that 11 the Appellate Court should be reversed and send it back to the Appellate 12 Court for a decision on the merits of the Petition. In that event, this 13 trial should have continued. If it does that, then the Appellate Court may 14 next summer decide that the merits of the Petition, that it should be denied 15 on its merits, in which event this trial should have continued. And for us 16 to pick up this case then months and months down the road with the Court to 17 stay the case now is equivalent to granting a mistrial, because jurors may i18 get different jobs, they may move to different localities. This Court 19 doesn't have the right to order these Jurors-r-I almost said defendants*-- they 20 might well be, order these jurors to stop and hold their life in a position 21 of abeyance until our various courts decide what to do with this case. All 22 we have to do Is lose four jurors and it would be easy by October or Novembex 23 for jurors to take positions that might make it inequitable to require them 24 to come back, or impossible for them to come back. I think we're fortunate 1 that we've kept them together this long. So, your Honor, It's our position 2 that this case should continue to trial, as it Is, that we should undertake 3 to try It again tomorrow; that this Court does have Jurisdiction because the 4 granting of the Petition under Rule 315 Is not equivalent to taking jurlsdlct 5 from this Court. What jurisdiction it's taking Is from the Appellate Court, 6 and until a Petition under Rule 306 has been granted, this Court has full 7 and complete jurisdiction and should proceed. 8 Now, the Defendants, If they, I had suggested this morning that we 9 would file a Motion In the Supreme Court to clarify this Issue, this problem. 10 But In reading the Appellate Court decision and the rules that apply, we 11 would be presenting a nonissue to the Court. If my appraisal of the Court's 12 action Is correct, and I think It Is, then we have nothing to clarify, that 13 the Court's, action Is proper and we can proceed. But on the other hand, If 14 the Defendant believes that they are entitled to a stay, they have the right 15 to file a Motion for Supervisory Order once this Court says that It will 16 continue this case, this trial, then the Defendants have all the ammunition 17 or precedent or order that they need to file a Motion to Stay In the Supreme 18 t Court,-and the Supreme Court can then decide, can then tell us whether or not 19 my Interpretation of Its action Is Incorrect. And they will not be harmed 20 by that position If they want to file a Motion to Stay or a Motion for 21 Supervisory Order In the Supreme Court. The Court should bear In mind that 22 a Petition on the merits of forum non convenience was denied, Petition for 23 Leave to Appeal was denied by the Appellate Court, and In December of 1983 24 was denied by the Supreme Court, the very self-same Petition for Leave to 1 Appeal In forum non convenience was denied by the Supreme Court In December 2 1983 and If you are trying to speculate as to what-- and the Supreme Court 3 knew at that time that this case was going to start trial shortly after 4 the first of the year. They had been apprised of that fact at that time, 5 and they as a matter of fact entered a short stay order while they made 6 some determinations, and then they said we should go ahead. I believe that /7* the Supreme Court has granted the Petition that it's presently granted In 8 order to delineate the Appellate Court's jurisdiction In questions of this 9 sort, and that It will have nothing to do with the ultimate merits of the 10 forum non convenience Issue, because that Court has already decided that 11 It's not going to decide that Issue until some later date. 12 THE COURT: Judge Craven? 13 MR. CRAVEN: First, I would like the record to reflect that we are 14 here under a special, limited appearance which we have filed. 15 THE COURT: You have Indeed. That's why 1 asked Plaintiff to 16 address that along with his argument. >17 MR. CRAVEN: And that special, limited appearance addresses the 18 question of the jurisdiction of this Court, and X would like the assurance oi 19 this Court that we are proceeding to discuss jurisdiction only and under that 20 limited appearance, because we do seriously contest the jurisdiction of this 21 Court at this stage. 22 THE COURT: You may address whatever you wish. You're given the 23 opportunity to address jurisdiction only If you wish or the Motion the 24 Plaintiff has filed. You may proceed how you wish. 1 MR. CRAVEN: Th Motion that the Plaintiff ban filed-- 2 THE COURT: Well, you heard the oral Motion that he just made. 3 MR. CRAVEN: -- to resume the trial, that relates to jurisdiction. 4 THE COURT: So go right ahead. 5 MR. CRAVEN: Let me make several observations, and It may be helpful 6 to talk In terms of some rules and some cases. First, Rule 301 iays any 7 appeal Is but a continuation of the trial court proceedings. Two, Rule 366, 8 unlike Mr. Carr's notion-;aa to how the Supreme Court Is limited, Incidentally 9 In a very good opinion by Mr. Justice Goldenhersh notes that once the 10 jurisdiction of the Supreme Court attaches, It will decide Issues that may 11 have been decided In the Appellate or even the trial court or may not have 12 been, but It will go ahead and decide any Issue. And In that particular case 13 that related to a question of damages that had not been passed upon by either 14 Court, and yet the Supreme Court resolved the Issue based upon the record. 15 This morning the Illinois Supreme Court granted a Petition for 16 Leave to Appeal to review the question of forum and to review the question 17 of the validity of this Court's gag order Issued In I think April of 1984. 18 Then, on the Court's own Motion, It consolidated those two cases. It's 19 obviously aware of this proceeding, and It's obviously aware of Its own 20 rules. And Mr. Carr was more right this, morning than he Is this afternoon. 21 The Supreme Court exercised Its jurisdiction to say In substance, "We're 22 going to examine this question of jurisdiction and we're going to look at the 23 question of forum non convenience, and we're going to look at the gag order." 24 The question of the Supreme Court looking at the Appellate Court's 1 Jurisdiction under Rule 306 Is just simply a non sequltur, and the reason 2 for it is Rule 306 is a Petition for Leave to Appeal to the Appellate Court. i What Mr. Carr Is asking this Court to believe is that If the Appellate Court 4 decides to look at the issue of forum or venue or any of the other two or 5 three things enumerated in Rule 306 that that operates as a stay of the 6 trial court proceedings. But If the Supreme Court decides to look at those 7 issues, it doesn't operate as a stay. That is Imputing to the Supreme Court 8 a form of judicial administration that just almost Is laughable. When the 9 Supreme Court Is going to look at an Issue of forum or venue or custody of 10 unemancipated minor children or whatever, I think that's the three or four 11 Issues In 306, that stays the proceedings. And the reason for Its staying 12 the proceedings Is how silly would It be to have an ongoing trial in this 13 Court Involving unestlmatable expenses to this county and to these parties 14 when the Court itself is going to determine whether this Is the proper forum IS for the trial. Now, this morning .this Court stayed all proceedings in this 16 case, including discovery and everything else. Based upon the agreement of 17 the parties as to the meaning of the Supreme Court's Order, this Court Is now 18 without jurisdiction to do anything about Its own Order. You can't vacate 19 that Order because you don't have the power in the sense of jurisdiction to 20 vacate that Order, because the Supreme Court by Its mandate, and we are havln 21 a certified copy come down here, is noticing this Court that this subject 22 matter Is in that Court, and the filing of that Notice of Appeal by that 23 Court divests this Court of jurisdiction. That Is so fundamental that I am 24 surprised.that Rex would argue otherwise. Now, It's true you get into the Supreme Court under Rule 315, but 1 you get Into the Supreme Court by Rule 315 to look at 306. And the Supreme 2 3 Court expressly adopted Rule 306 In order to do away with supervisory orders 4 and mandamus and certain Instances, and less frequently used, writs of 5 prohibition. Historical notes to Rule 306 tell us that. Now, Judge, we are here under a limited appearance. Ur. Carr this morning told this Court that 6 7 this Court was without jurisdiction and that there was no question about It t these proceedings are stayed. And he said that he would quickly get off 8 9 to the Supreme Court something to get some clarification. That's his privilege. There Is absolutely no proscription against that, and he can file 10 whatever he wants to In the Supreme Court. We will take whatever action II 12 Is deemed appropriate upon the basis of what he files. But this proceeding 13 Is by everything that's clear and undebatable, these proceedings are stayed 14 and stayed until such time as the Supreme Court resolves It. 15 Nov, for Mr. Carr to suggest that the Supreme Court doesn't 16 understand Its own rules Is simply a question that I would want to argue 17 very delicately In the Supreme Court. I just don't believe that they are 18 prepared to say they don't understand their own rules. Now, your Honor 19 must be familiar with Judge Underwood's opinion In Espinoza, and In Espinoza 20 he said very clearly that the denial of leave to appeal Is of no significance 21 Remember that? That was when we were dealing with the Issue of forum. So 22 Mr. Carr's notion that the Supreme Court has once denied leave to appeal in 23 this case is of any significance flies In the express language of the 24 unanimous court*in Espinoza, I think It was unanimous. And secondly, the mer 1 fact that the Court has endured the progress of this trial for as long as It 2 has doesn't mean that'it can't look at the question of forum X haven't 3 counted, but I don't know how many cases have been decided upon the Issue of 4 forum, from which this case Is not distinguishable. And the Court has final1 5 decided, hey, it's going to look at it. 6 Now, there's even an additional thing. The Court consolidated the 7 First Amendment gag order case with this forum case. So this forum case now 8 has attached to it a Federal question Involving the First Amendment and the 9 validity of the gag order. Now, it would confbund the history of any 10 jurisprudence that X know of that relates to jurisdiction to say that a 11 court In St. Clair County in the State of Illinois can proceed with a trial 12 when the Supreme Court said It's going to look at the question of whether the 13 trial Is properly there. Now, if we say to you, your Honor, you have no 14 jurisdiction, you cannot as a matter of judicial power order a resumption of IS this trial unless the Supreme Court orders that you can do so. And If 16 Mr. Carr wants that kind of relief, he Is welcome to file whatever he wants 17 to In the Supreme Court. But until he does so, he should not Invite this 18 Court to Ignore the mandate of the Illinois State Supreme Court when It 19 granted the Petition for Leave to Appeal. 20 Now, why would it grant leave to appeal? I agree, I don't know. 21 Rex doesn't know. That's Irrelevant. It's granted It. And It's going to 22 look at the question that's Involved here as is this case in the proper form 23 Now, once before In this litigation Involving this same Sturgeon spill we 24 had a very similar situation at the Appellate Court level. Ve granted-- we filed a Petition for Leave to Appeal, and I believe the Issue Was venue, 1 In the Clark case, Madison County, Paul Pratt, which by the way is an 2 3 Interesting experience. But In any event, the Appellate Court granted our 4 Petition for Leave to Appeal and somehow, some way, on Its own Motion and 5 without any Intervening act by the parties, vacated its Order. We went Into the Supreme Court and said that divests us of constitutional rights that are 6 7 given by the rules that deprive us of due process, that deprive us of equal protection, and how come you did It, anyway? And the Supreme Court said, 8 9 yeah, how come you did do It, any way? We will take the case and we will 10 look at the issue. And we also had another question Involved, and the Lowe 11 case was filed and Mr. Pratt decided that he was tired of the wars and * 12 retired, and we stipulated to an Order in the Supreme Court to pitch the 13 Clark case out of Illinois and Into Missouri. 14 But I'm saying to your Honor that the action that Mr. Carr Is askln 15 this Court to take would be exactly the same kind of thing that the Appellate 16 Court, Fifth District took In the Clark case and would be equally effective 17 to deprive us of the same rights and privileges. 18 Now, If this trial Is to resume, It has to resume under an Order 19 from the Supreme Court. And.If there Is to be such an Order, that means the 20 Supreme Court Is going to change Its rules. And If the Court Is to change 21 its rules, Mr. Carr has the burden of seeking such a change, and that burden 22 does not fall upon us, nor will we accept it. 23 Now there Is no reason, nothing has changed since this morning. 24 And Mr. Carr was right then, he is wrong now. And this Court has ho 1 Jurisdiction of these parties or this subject matter and the question reposes in the bosom of the Supreme Court. 2 3 THE COURT: For the record what exactly is the wording of the 4 Order the Supreme Court entered this morning because I have not seen a 5 copy of it. 6 MR. CRAVEN: I have not seen a copy of it. I called Julie the 7 clerk and she is sending to Coburn Croft's Belleville office by Federal 8 Express a certified copy of the Order. But I had It read to me over the 9 phone and to the extent that 1 think I am accurate because 1 was dubious. 10 I was on my way to St. Louis and I stopped at a telephone booth and called 11 because I knew today was the day they deny leave to appeal as the expression 12 goes around the Supreme Court building and the clerk read it to me. And 13 it 8aid in Kemner v. Monsanto the gag order case Petition for Leave to 14 Appeal is allowed. And Kemner v. Monsanto in the forum non convenience 15 case with the appropriate numbers Petition for Leave to Appeal is allowed. 16 MR. CARR: It did not say in the Petition forum non convenience 17 case it gave the numbers. It said in this numbered case Petition for Leave 18 to Appeal Is allowed. 19 MR. CRAVEN: In Kemner vl Monsanto and Kemner v. Monsanto, Petltlox 20 for Leave to Appeal allowed, Petition for Leave to Appeal allowed, I think 21 It said on the Court's own motion, but I'm not sure of that. 22 MR. CARR: Whatilt said, it also said that it consolidated those 23 two cases and significantly as well it said It la going to take with the 24 case our Motion for Costs. 1 THE COURT: So it consolidated everything? 2 MR. CRAVEN: Thatfs right* And it Is Just so clear that the Court 3 is going to look at everything, that for this Court to proceed in the face 4 of that, would, I think, be a form of defiance, frankly, candidly, a form of 5 defiance of a superior court. And I know of no precedent for that* And I 6 don't want to not say that, because I think that's what it is. And I J u s t - 7 Judge, once before Mr. Carr stood up and asked you to Impose a million dollar 8 fine on Monsanto. He's receded from that and he knows now it was wrong* 9 But he invited you to do that-- 10 MR. CARR: Stop a moment. I don't know any such thing, but we are 11 not arguing that Motion now. And I thought you were through and you were 12 going to give me an opportunity to reply. 13 MR. CRAVEN: I assume 1 can finish and I shall, and you will have 14 your opportunity to reply, and that is appropriate argument* And I think IS it's wrong, it's clearly wrong by the cases. Now he's asking the Court to 16 make an equally serious and X think historic error. And I think it's my 17 Job, not only as an advocate but as an officer of this Court to say we better 18 stop this whole proceedings, and if he wants to get clarification, if he 19 wants to get resumption of this trial legally, then he knows how to do it, 20 and the resource is there for him to do it. But to Invite this Court into 21 this error rather than have him go up and ask the Supreme Court, hey, can we 22 resume, X Just can't express how wrong that is. And we are here saying we 23 don't want to participate in that and we want to stop that. 24 THE COURT: Okay, Mr. Carr. MR. CARR; As Mr. Craven is suggesting that I have the ability to 1 give this Court jurisdiction or to take jurisdiction from this Court, obvious] 2 3 ay actions this morning neither divested this Court of jurisdiction that it 4 lad, nor can any action that X take give this Court jurisdiction. It either 5 las jurisdiction or it hasn't, notwithstanding whatever counsel might say or lo. The question for this Court to decide is what is the effect of a Rule 3 6 7 )rder. Now. I will represent to the Court there Is no case anywhere in the State of Illinois, not from the beginning of time to now. that a Petition 8 9 granted under Rule 315 operates as a stay of proceeding or divests the trial 10 :ourt from jurisdiction that it has by other lavs. And we have researched 11 :he law at great length as to whether or not there is such a case, and there 12 Lsn't a case. Counsel Craven readily agrees that he doesn't know what the 13 Supreme Court is going to do, nor does he know why the Supreme Court granted 14 their Petition. If the Supreme Court granted their Petition for the purpose IS >f affirming the trial court In saying the trial court did not have 16 jurisdiction, then what the Supreme Court is saying is that this Court properL 17 3tayed in trial while the Appellate Court decided that Petition, and that we 18 ire properly in trial now. Unless Counsel is divining what the Supreme 19 Court is thinking, if the Supreme Court as I suggested reverses the Appellate 20 Court and says you do have jurisdiction, now take this Petition and decide it i 21 based upon what we have said in other cases. Look at the Petition on the 22 oerits and decide whether or not the trial court was correct in Its judgment 23 and Ignore the fact that it was untimely filed. And again, as I have said 24 before, that could Indeed be what the Supreme Court says. And we are not 1 without precedent In this matter. In the case of Mesa v. Chicago Northwestei 2 there was a Petition on forum non convenience, Intrastate this time. And a 3 Motion was filed in the Appellate Court under Rule 306 after the trial court 4 had denied Defendant's Motion to Dismiss, just as here, the Cqurfe denied 5 the Motion to Dismiss on forum non convenience. The Appellate Court denied 6 the Petition for Leave to Appeal and the Supreme Court there also as here 7 granted the Petition for Leave to Appeal. 8 Now, It had before it at that time all the facts that It needed 9 to decide whether or not the forum non convenience motion should be granted 10 or should be denied. What it said at that time, "The trial court In the 11 Instant case Is now in a better position to consider and weigh the relevant 12 factors we articulated in taking Its decision on the forum non convenience 13 motion. We therefore as an exercise of our supervisory authority remand 14 this case to the Circuit Court of Madison County for consideration of the 15 Defendant's Motion in accord with our decision In Torres. Supervisory Order 16 e n t e r e d N o w , Judge, they did not decide the Petition forum non convenience 17 on the merits. .They sent It back to a lower court to consider that Petition, 18 that Motion on the merits and then make a decision and ultimately appeal, 19 and that's exactly what you, just as the Supreme Court In the Mesa case, did 20 not decide on the merits and say that the Petition forum non convenience was 21 Improperly denied, but said it sent It back to that lower Court. Just as 22 the Supreme Court can be here saying, and again I say unless somebody can 23 read their minds, unless they have talked to the Court and knows on what 24 basis they granted the Petition can be saying Appellate Court, look at the 1 merits again and make another decision. There are no cases that hold 2 anywhere that this case, that this Court is divest of jurisdiction by 3 granting of a 315 Motion. 4 Mow, It Is not a Notice of Appeal they are talking about, and I 5 am not suggesting that the Supreme Court does not understand Its own rules, 6 as counsel suggests. What 1 am saying now Is that I did not understand the 7 Supreme Court's rules this morning when I took the position that there was 8 a stay, and the only reason that I didn't understand the Supreme Court rule 9 is because 1 wasn't aware of th fact that they filed their Petition under 10 Rule 315 asking that the Appellate Court be reversed, and that's the only 11 reason I said that which I said, and the Rule 306 Is a rule for the Appellati 12 Court. It's not a rule for the Supreme Court. Rule 315 Is the rule for the 13 Supreme Court, and there Isn't any case. If counsel means what they 9ay, 14 and I don't believe they do, that they are not going to take any further 15 action, then that's well and good. We will proceed, and they don't have to 16 go to the Supreme Court and ask for a Motion to Stay. And, your Honor, In 17 trying to divine what the Supreme Court might do or might not do, why dldn'i: 18 they deny our Motion for Costs out of hand? We filed a Motion because the 19 Appellate Court denied our Motion for Costs, just gave us the filing fee, 20 but we said we should be entitled to more since this Issue has been to the 21 Supreme Court, to Supreme and Appellate Courts a number of times, but they 22 took our Motion with the case. Now, if they thought that they were going 23 to grant the Petition forum non convenience, if they had already prejudged 24 the case as counsel has suggested that they have, then they should have 1 denied, and they would have denied our Motion for Costs out of hand. What 2 they did Is they announced they don't know how they are going to decide. 3 They are going to look at the jurisdictional question and decide that and 4 that maybe all that they look at. They may never address the merits of the 5 Petition forum non convenience. And this Court would be working a grievous 6 harm, well, this Court would be In effect second guessing the Supreme Court *> 7 and saying, "I know that the Supreme Court Is going to decide the Petition 8 forum non convenience, and It Is going to decide the Petition forum non 9 convenience against the Plaintiffs." And there ls.no indication of that. 10 And the Supreme Court Is capable, if It wanted this matter to be stayed it II knows what its rule says, contrary to my friend, Jim, It indeed does know 12 what Its rule says. It knows that there Is no provision for stay under 13 Rule 315. It knows that Rule 306 applies to Petitions filed in the Appellat 14 Court, that does not apply to Petitions filed In the Supreme Court. And 15 on that, your Honor, we rest our position that grievous harm would be done 16 us if you withdraw your clear jurisdiction in this matter. 17 THE COURT: Okay, now, gentlemen-- 18 MR. CRAVEN: Your Honor, may I be heard on something? 19 THE COURT: Briefly. 20 ... MR. CRAVEN: Mr. Carr in.rebuttal made reference to the Mesa 21 case, and of course that wasn't really within the scope of my remarks. So 22 if I may, I'd like to discuss the Mesa case. 23 THE COURT: Do you want it? 24 MR. CRAVEN: I'm familiar with it. The Mesa case Involves the 1 question of Intrastate forum non convenience. The Torres case was a 2 historic opinion by the Illinois Supreme Court announcing for the first time 3 In Illinois that there was a doctrine of Intrastate forum non convenience. 4 Before that time the law was there wasn't any such animal. And when the 5 Mesa trial court was presented with a Motion, It quite properly said, "We 6 don't have those animals In Illinois." And Intervening, the Supreme Court 7 announces Torres and the Mesa case works Its way up and the Supreme Court 8 said, "Hey, the trial court didn't have the advantage of the Torres opinion 9 and the Torres standards." So now It's appropriate for that court to 10 consider It In the light of the announced new, historically new, never 11 before, Torres doctrine. That's all the Mesa case says. And for Mr. Carr 12 to suggest that that Is the meaning, that the Supreme Court won't decide an 13 Issue that hasn't been decided In the lower court, Isn't quite cricket. 14 And I think we're playing cricket, and that just shouldn't be. Now, that's 15 the Mesa case, has zero, zip relevance to this case. The only way It could 16 get In the Supreme Court is by Rule 315. There are several ways to get in 17 the Appellate Court, 307, 308, 304, 306, but the Supreme Court Is at the 18 top of the heap and the only way to get there is 315. And Rule 301 says 19 If the whole thing, you know, the hip bone is connected to the thigh bone 20 and* the thigh bone Is connected to the whole thing, and that's clearly 21 an Integrated court system, and that's where we are. Now, this case pends 22 in the IllinoisSupreme Court and it cannot concurrently pend anyplace else 23 THE COURT: Mr. Carr, do you have any reply? 24 MR. CARR: No, your Honor* I think I said what needs to be sal 1 THE COURT! Both of you are basically arguing different aspects 2 of the same question. And I specifically asked what you knew of .the wording 3 of the Order entered by the Supreme Court. There is no way that I want to 4 appear to be, and I am not actually wishing to be In any way In defiance of 5 the Supreme Court or the Appellate Court or any superior court. I feel 6 that for this Court to take any action such as requested by Plaintiff 7 without further clarification or direction from the Supreme Court would be 8 a mistake. I think that It should not be done. And I think that If you 9 wish, obviously you wish to pursue this matter further and I would suggest 10 that you do have a direction as to stay by the Supreme Court for clarlflcatl 11 or however it needs to be worded. But both of you presented well-reasoned, 12 cogent arguments, all of them within the realm of possibility. And X am 13 In the position where not only do 1 have to, but X want to do the Supreme 14 Court's bidding, and I am not sure what that Is. So I think that under 15 the circumstances we will stay In a position of-- we will remain In a poaitio^ 16 of stay until the Supreme Court directs this Court as to what It wishes It 17 to do. 18 MR. CRAVEN: Thank you, Judge. 19 MR. CARR: Thank you, your Honor. 20 (At this time, the In chambers conference adjourned.) 21 22 23 24 1 STATE OF ILLINOIS ) ) ss. 2 COUHTT OF ST. CLAIR ) 3 4 5 6 7 1 Patricia A* Gandy. CSR, RPR, Official Court Reporter In and 8 for the Twentieth Judicial Circuit and the Official Court Reporter who 9 transcribed the above-tyled cause had on June A , 1985 do hereby certify JO that the foregoing transcript of proceeding's is a true correct and complete 11 transcript of the proceedings had on said date. 12 DATED this 4th day of June 1985. 13 14 IS yh/dJ /16 PATRICIA A. GAUDY* Official Court Reporter 17 18 19 20 21 22 23 24 1 STATE OF ILLINOIS 2 COUNTY OF ST. CLAIR 3 SS, 4 5 6 7 I, RICHARD 7. GOLDENHERSH, Circuit Judge In and for the Twentieth 8 Judicial Circuit, hereby certify that the above la a true and correct 9 transcript of the proceedings had in the case captioned: FRANCES E. KEHBER, 10 et al. v v. MONSANTO COMPANY, Cause No 80-1-970, heard on June 4, 1935. 11 DATED this 4th day of June, 1965. 12 13 ENTER: 14 15 RICHARD P. GOLDKKHERSH, Circuit Judge 16 17 18 19 20 21 22 23 24