The U.S. Supreme Court's ruling Monday in Caperton v. Massey Coal Co. is certain to re-kindle talk of the 2004 Illinois Supreme Court election in which Justice Lloyd Karmeier defeated former Appellate Justice Gordon Maag in the Fifth Illinois District in Southern Illinois.
That landmark election attracted national attention for several reasons, not the least of which was the fact that the victory by Karmeier, a Republican from tiny Washington County, over Gordon Maag, a Democrat and former trial lawyer from Madison County, was as dramatic a political reversal as Illinois had seen in dozens of years.
We had a front-row seat in that election and we can recite chapter and verse as to why it went the way it did.
The first thing that comes to the mind of most non-Illinois observers is the fact that the 2004 Illinois election was the most expensive Supreme Court race ever. More than $9.3 million was spent by the two candidates. The money was raised and spent almost equally so there can be no arguing that the election was "bought."
In fact, Republican Karmeier's support was much more diverse than
Democrat Maag's. Karmeier had contributions from more than 1,400 residents of the Fifth District and from businesses throughout Illinois and nationally. He also had huge support from Southern Illinois doctors and hospitals.
Maag had overwhelming support from the personal injury trial lawyers, primarily from Illinois, but also from many national trial lawyer luminaries.
The Karmeier-Maag election, and the battle over Illinois court cases after that election, will be dragged out by the Illinois news media (and by the trial lawyers) in the aftermath of the Caperton v. Massey decision.
An effort was made by trial lawyer interests to have new Justice Karmeier disqualified from one case pending before the Court after his election but the Court itself ruled he could not be disqualified.
The Caperton v. Massey decision (a 5-4 ruling) will focus new light on similar cases in which contributors to a judicial campaign may be involved in a future case before the Court. Should judges be forced to recuse themselves if their campaign received contributions from a party to litigation before the court?
The arguments will be immediate and loud, particularly in Illinois.
We think there is a better way than recusal to prevent the appearance of impartiality.
Illinois judges (at all levels) should be elected on a non-partisan basis. The Illinois Civil Justice League has proposed a system in which judicial candidates would be selected by a bi-partisan panel that includes lawyers and non-lawyers. Candidates would have to be approved by a bi-partisan vote of the panel and they would be eligible for public campaign financing, which seems to be on the horizon for judicial elections in Illinois.
ICJL's proposal has been submitted to the Illinois Committee for Reform (the Collins Commission) and to the Joint House-Senate Committee of the General Assembly.
Politicians, especially legislators, don't generally embrace the concept of "non-partisan" anything so acceptance of this proposal is not universal.
But Illinois voters seem to like it. A statewide poll several weeks ago shows that almost 70 percent of Illinois voters - all parties, all areas of Illinois - prefer non-partisan election of judges.
In a Chicago Tribune editorial, the newspaper calls for merit selection of judges. We agree with the Tribune that change is necessary but Illinois voters have expressed their preference for election of judges. Voters were asked that very question in the 1970 Constitutional Convention referendum and they chose election, rather than appointment. Our proposal makes more sense.
ICJL's non-partisan election proposal needs to be discussed. Illinois voters want it. It makes common sense. And it is a perfect solution to the renewed controversy that will arise again following the Caperton v. Massey ruling