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
They disqualified Gilbert from all cases involving Illinois
state government in May, but did not force him to choose between the court and
“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
“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
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
Reagan assigned it to Yandle, who set trial to start last
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
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
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
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
McKinney wrote that Gilbert’s immediate recusal cured any
potential conflict of interest, appearance of impropriety, or question of
In December, McKinney granted summary judgment to the
Hess appealed to the Seventh Circuit, where the case remains
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
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
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.