MADISON - ST. CLAIR RECORD

Unable to muster a majority, the Illinois Supreme Court today had to dismiss a challenge to Chicago’s red light camera program.

This relatively rare outcome was produced by two justices — Ann Burke and Lloyd Karmeier– recusing themselves and a divide among the remaining five justices. The state Constitution requires four justices to agree in order for a decision to be handed down.

Because a majority couldn’t be reached among the five justices, the high court had to dismiss the plaintiffs’ appeal, leaving intact the lower courts’ ruling that rejected a lawsuit challenging the constitutionality of the city’s controversial red light camera program.

“It’s stunning,” Ottawa attorney Michael T. Reagan said of today’s opinion. Reagan, who argued on the plaintiffs’ behalf before the justices in May, said a dismissal caused by the court’s failure to obtain a majority has happened before, “but it is exceedingly rare.”

Reagan’s clients, including named plaintiff Elizabeth Keating, sued the city over the 2003 ordinance that created the program, which penalizes owners of vehicles caught running red lights. They claimed the ordinance was void because the city lacked home rule authority to enact it.

They also argued that a 2006 enabling law the state legislature enacted to authorize the creation of red light camera programs in Cook County, as well as DuPage, Kane, Lake, Madison, McHenry, St. Clair and Will counties, was unconstitutional because it constituted “special local legislation” as lawmakers had no rational basis in choosing the eight counties.

The city, represented by Kerrie Maloney Laytin, assistant corporation counsel, rejected the plaintiffs’ arguments and urged the Supreme Court in May to uphold the First District Appellate Court’s decision to affirm Cook County Circuit Court’s dismissal of the lawsuit.

While the five participating justices couldn’t reach a consensus in the case, the court’s dismissal of the appeal essentially handed the city a victory.

The reasons Burke and Karmeier recused themselves are not publicly known. Recusing justices are not required and typically don’t publicly announce why they chose not to participate in a certain case.

One could assume, however, that Burke recused herself because her husband, Ed Burke, is an alderman on the city council that approved the red light program at the crux of the case. She stepped off the bench for arguments in the case.

Karmeier, however, did not. He asked Reagan and Laytin at least one question each during arguments.

Supreme Court spokesman Joe Tybor said it is customary for justices not to provide the reason for the recusal, but said “whatever reason Justice Karmeier recused himself, the reason did not become apparent until after the argument.”

Karmeier’s recusal in this case comes less than two months after he made the rare move of penning a 16-page order explaining why he will not recuse himself in Sharon Price v. Philip Morris, a long running legal battle over “light” cigarette labeling.

The Supreme Court agreed to review the case in late September, about nine years after it overturned the $10.1 billion bench verdict since-retired Madison County Circuit Judge Nicholas G. Byron handed down against the tobacco giant in 2003. An April ruling from the Fifth District Appellate Court effectively reinstated the verdict.

In his order, Karmeier pointed out the rarity of both the Price plaintiffs’ motion seeking his recusal and his decision to publicly explain his decision not to.

Represented by St. Louis attorney Stephen Tillery, the plaintiffs argued that donations Philip Morris supposedly funneled into Karmeier’s 2004 campaign for the Supreme Court, media attention about contributions, as well as their alleged implications on judicial impartiality, and his vote to overturn the multi-billion dollar verdict required him to recuse himself in the court’s upcoming review of the case.

Karmeier, in his Sept. 24 order, went through several of the factors the Price plaintiffs cited in asking for his recusal and explained why he doesn’t think any of them merit his recusal, mostly of which boil down to his belief they failed to provide any evidence to back up their claims.

Among other reasons, Karmeier wrote that the “rule of necessity” amplifies his “duty to sit” and hear the case because there are only six justices available –Justice Robert Thomas hasn’t participated in much of the Price case and will not going forward– and “the concurrence of four justices is required for a decision of this Court.”

He further noted that his decision not to recuse himself could have effect on his candidacy, but said that “is an occupational hazard in our system for electing judges. It is not and can never be a valid basis for recusal.”

At the time Karmeier wrote the order, he was facing retention in the November election. Not even a month later, a group called Campaign for 2016 registered with the state board of elections and launched an anti-retention effort against the justice, who won retention by a slim margin.

Attorneys who contributed to Campaign for 2016 are involved in the Price case as well as a racketeering lawsuit playing out in southern Illinois’ federal court.

This suit stems from the Supreme Court’s 2005 decision to reverse a billion dollar judgment against State Farm and alleges there was a conspiracy to get Karmeier elected to the high court so he would vote in its favor.