CHICAGO – U.S. District Judge Phil Gilbert would have had to to resign in order to accept an appointment as trustee of Southern Illinois University if not for his senior status, according to Seventh Circuit appellate judges.
They disqualified Gilbert from all cases involving Illinois state government in May, but did not force him to choose between the court and the university.
“Judge Gilbert need not resign from the bench, or from the state governmental body, but may hold both positions,” they wrote.
“Senior judges are different because they are entitled to hear fewer cases than active judges, and they are also entitled, in most if not all districts, to limit which cases they hear by subject matter or the identity of the litigant.”
Some senior judges avoid criminal cases and some opt out of suits against the commissioner of Social Security, they wrote, and it is within a senior judge’s prerogative to avoid cases involving state litigants by reducing his caseload.
“A judge with the privilege of both cutting back on workload and excluding selected categories of litigants cannot be thought to be engaged in misconduct by taking an appointment that will lead to the exclusion of a single category of litigant,” they wrote.
Their decision resulted in Gilbert transferring 134 cases to Reagan and district judges Nancy Rosenstengel and Staci Yandle, who transferred 96 to him.
The judges mostly exchanged prisoner suits, with Gilbert losing those from state prisons while gaining those from federal prisons and county jails.
Gov. Bruce Rauner appointed Gilbert to the university board in February 2015.
Gilbert asked the board to insulate him from all legal issues, and he left the room when trustees evaluated those issues.
He instructed the district court clerk not to assign to him any litigation by or against the university, and to transfer such cases on his docket to other judges.
In April 2015, Chief U.S. District Judge Michael Reagan decided he would conduct a remittance of disqualification hearing in all cases involving the university.
Reagan wrote that if parties remitted disqualification, a case would be randomly assigned to a district judge excluding Gilbert.
If parties did not remit disqualification, he would ask Seventh Circuit Chief Judge Diane Wood to assign a judge from another district.
Reagan’s plan began to collapse in July, at a remittance hearing in a suit that former student Nicholas Hess filed over his expulsion from the university.
Gilbert had recused himself at the outset of the case, in 2014.
Reagan assigned it to Yandle, who set trial to start last Sept. 21.
At the remittance hearing Reagan told Hess’s lawyer, Darrell Dunham of Carbondale, to choose between disqualification and remittance.
Dunham chose neither, and said he might complain to the Seventh Circuit.
Reagan gave him a week to file a motion, and in six days Dunham moved to shift the choice to Gilbert.
Dunham wrote that no litigant should be asked to waive a judge’s duty to follow the judicial canon of ethics.
He quoted a canon that, “A judge should not serve if it is likely that the organization will either be engaged in proceedings that would normally come before the judge or be regularly engaged in adversary proceedings in any court.”
Dunham wrote that the case had been assigned to Yandle for months and that months would be lost if an election was made to reassign the case.
He wrote that if the case settled, university trustees would approve the settlement, and that if Hess succeeded in the trial court, the trustees would likely have to approve any decision to appeal.
He explained that he made the motion so Gilbert could make him aware of any precedent that permitted an order requiring Hess to make the election.
On Aug. 24, Seventh Circuit Chief Judge Wood assigned the case to District Judge Larry McKinney of Indianapolis, also on senior status.
Next day, McKinney delayed trial for four months.
In September, he denied Dunham’s motion for an order on Gilbert.
McKinney wrote that Gilbert’s immediate recusal cured any potential conflict of interest, appearance of impropriety, or question of impartiality.
In December, McKinney granted summary judgment to the university.
Hess appealed to the Seventh Circuit, where the case remains pending.
At some point, Hess filed a complaint against Gilbert there.
Wood decided that Gilbert hadn’t violated the canon Dunham quoted, but that there might be a problem under another canon.
It provides that a judge may accept a government appointment only on condition that it concerns the law, the legal system, or the administration of justice.
Wood found that according to advisory opinion 44 of the committee on codes of conduct, public colleges and universities didn’t satisfy that condition.
She asked a former conduct committee member for advice, and the former member said service on a public university’s board was incompatible with the canon.
Wood told Gilbert she had concerns, and he said he satisfied the condition in the canon because the university has a law school.
He asked her to appoint a committee to report to the circuit’s judicial council, and she appointed a committee with Circuit Judge Frank Easterbrook as chairman.
At a hearing, someone asked Gilbert if he was willing to cease hearing all cases by and against the state or its employees.
He said he was willing and maybe even happy to do so, and that closed the case.
On May 4, the committee recommended that the council dismiss the complaint on the ground that Gilbert promised to take effective corrective action.
They excused him but didn’t exonerate him.
“It is unfortunate that he did not consult the committee on codes of conduct before accepting the governor’s offer,” they wrote.
They rejected his argument that advisory opinion 44 allows service where a university has a law school.
“A university’s law school is a small part of a university’s operations,” they wrote.
They wrote that limiting disqualification to suits involving the university was inadequate because the board administers public funds.
“This makes a member of its board a fiduciary for the State of Illinois as a whole,” they wrote.
They wrote that any suit that affects state finances could indirectly affect the finances available to universities.
“The special committee believes that reasonable, well informed observers would conclude that a judge who is also a fiduciary for the state as a whole should not play any part in litigation to which the state or any of its employees is a party,” they wrote.
They found Gilbert acted transparently, in good faith, with the best intentions; that his willingness to serve the university was admirable; that his grandfather was a professor there and that his father was chairman of the Senate education committee that secured the funds to turn a small teacher’s college into a full fledged university.