Judicial recusal proposal heads to Supreme Court

Illinois State Bar Association President John Thies said he couldn’t be happier the group’s policy-making Assembly adopted a proposed rule on judicial disqualification.

The ISBA Assembly on Dec. 15 supported a proposal that would require judges to disqualify themselves if a probability of bias exists after considering relevant circumstances, which include campaign contributions.

The proposal, which now goes to the Illinois Supreme Court for consideration, came from the ISBA’s Special Committee on Judicial Disqualification Standards. Thies created the committee this summer and has made the issue one of his top priorities as ISBA president.

“I think it’s important for all of us in the profession to look for ways we can address the perception of the public that politics plays way too big of a role in the way we select our judges,” Thies said.

Although the Assembly “overwhelmingly” supported the proposal, two members of the special committee didn’t. In a minority letter, they expressed concerns over the “probability of bias” standard and pushed instead for a “reasonable question of bias” standard.

The Brennan Center for Justice in New York and Justice at Stake in Washington D.C. agreed with the minority report in a letter they sent to Thies earlier this month.

Both groups advocate for judicial disqualification standards, a topic that gained attention in 2009 when the U.S. Supreme Court handed down its ruling in Caperton v. A.T. Massey Coal Co.

Adam Skaags, senior counsel for the Brennan Center’s democracy program, said he commends the ISBA for giving much-needed attention to the issue, but said that the end proposal “has some serious flaws.”

The committee members “diagnosed the problem correctly, but the prescription they offered is not helpful,” said Skaags, who signed the letter to Thies along with Bert Brandenburg, the executive director of Justice at Stake.

The two groups said in the letter that “the rule proposed in the Committee’s Majority Report would erect a threshold for recusal that is both higher than what exists under existing ethics rules and undesirable as a matter of policy.”

“In particular,” the letter states, “the proposed rule establishes a threshold under which disqualification is required only where there exists a probability of bias. Disqualification is thus required only where the failure to recuse would result in a violation of a litigant’s due process rights, a very high floor to reach.”

The letter goes on to say that the proposed rule would be better if it were modified to provide that a “judge shall disqualify himself or herself in a proceeding where monetary or non-monetary support related to the judge’s election or retention gives rise to a reasonable question as to the judge’s impartiality.”

Thies said that the committee looked carefully at the points raised in the minority report, which mirrors the concerns raised in the letter from Skaags and Brandenburg.

After analyzing the issue, Thies said that the committee determined that “the reasonable question of bias standard is not as useful as a tool as the probability of bias standard.”

Thies said that the “reasonable question of bias” standard could be triggered in every situation involving a campaign contribution. Even lawful donations, he said, could raise a reasonable question of bias.

The state high court, he said, will have both the majority and minority reports of the special committee to look at when considering the issue.

If the Supreme Court approves the ISBA’s proposed rule, it will join at least 11 other states that have put some type of judicial disqualification standard into place after Caperton.

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