ISBA committee on judicial recusal to lay out proposal next month; Changes could 'inspire confidence,' Thies says

By Bethany Krajelis | Sep 20, 2012




This is the second installment of a three-part series on judicial reform. The first story ran last week and provided an overview of the issue, focusing on a recent Better Government Association panel on judicial reform. The next story will explore Illinois' judicial selection process.

More money has been making its way into judicial elections for some time now, but it wasn't until the U.S. Supreme Court's 2009 ruling in Caperton v. A.T. Massey that states started to put judicial recusal standards into place.

A handful of states have adopted some sort of guidelines on judicial disqualification in an attempt to not only provide judges with a clear set of rules to follow, but to curb the public perception that campaign money plays a role in judicial decision making.

Although Illinois has not yet done so, a special committee of the Illinois State Bar Association (ISBA) is currently working to come up with some recommendations.

ISBA president John Thies said he put the committee together before he took over the helm of the bar group earlier this summer because he wanted its members "to hit the ground running."

And that's exactly what they have done, he said.

Thies expects the committee to complete the "labor intensive" task of researching other states' standards and drafting an Illinois plan by next month.

He said the committee has been asked to give its recommendations at the Oct. 19 ISBA Board of Governor's meeting.

If the recommendations garner the board's support, they will likely turn into a proposal and be sent to the state high court.

"The court is aware we are doing this. I think that we have a very good court that is interested in appropriate reforms," Thies said. "I know there is no guarantee until a proposal is in front of them, but I'll just say I'm optimistic that whatever this committee recommends" will be reform that attorneys, judges and the public can embrace.

The need

Thies said there are several reasons why he created the special committee, but the public's perception of the judiciary played a big part of his decision.

A lot of people, he said, read news articles about the large amounts of contributions made to judicial candidates and wonder if donations from lawyers and other groups might affect how judges decide their cases.

And even though this perception is in most cases quite far from reality, Thies said having disqualification standards in place to clarify exactly when a judge should disqualify from a case "would inspire more confidence in the integrity of the judiciary."

The court's ruling in Caperton was another major factor in creating the ISBA special committee, Thies said.

In 2009, the nation's high court held that the "serious risk of actual bias" should have required a West Virginia judge to recuse himself from hearing the appeal of a $50 million verdict.

The defendant in Caperton sought the recusal of West Virginia Supreme Court Justice Brent Benjamin after learning the plaintiff in the case had given millions of dollars to an independent political action committee that spent more than $3 million in support of Benjamin's 2004 campaign.

Benjamin declined to disqualify himself and went on to cast a vote that overturned the verdict in favor of the plaintiff.

Benjamin defended his decision and spoke about recusal in August at a forum that was part of the American Bar Association's (ABA) annual meeting in Chicago.

Because the court in Caperton didn't call for a bright-line rule on judicial recusal, Benjamin told attendants that judges now have to be concerned with the actions of third parties and how the public may perceive judicial bias.

"Caperton left it to all of us ... to connect the dots, so to speak," Benjamin said in August.

Other states

In the wake of the court's ruling in Caperton, Thies said the ABA passed a resolution urging states to put judicial recusal standards in place and that several states did so.

"It's very helpful to see how other states have analyzed this," Thies said, explaining that the ISBA's special committee on judicial qualification standards has spent a lot of time researching other states' rules.

He said the states that have put recusal standards into place have taken different approaches.

For instance, Thies said, the Supreme Court in Tennessee recently adopted a rule that requires judges who deny recusal requests to provide their reasons for the denials in writing.

And instead of leaving the final decision to the judge at the center of the recusal request, Tennessee's rule gives litigants the opportunity to appeal the decision to a higher court and have a different judge conduct a hearing on the matter.

In addition to Tennessee, the Brennan Center for Justice lists the following states as having some sort of standards to address judicial disqualification: Arizona, California, Georgia, Iowa, Michigan, Missouri, New York, Oklahoma, Utah, and Washington.

Unlike Tennessee's rule, New York's court system created a rule that requires court officials to handle disqualification matters as opposed to the judges.

New York's administrative rule prevents judges from hearing cases that involve parties or lawyers who contributed $2,500 or more to their campaigns. If a lawyer or party donated to a judge, the court's rule doesn't even let the case get assigned to that judge.

Pointing to the different approaches taken by states on the matter, Thies said, "I don't think there is a right answer to this."

Creating the special committee on judicial disqualification standards, he said, is only the first step for Illinois.

If the committee's recommendation gets support from the ISBA's board
of governor's next month, it will likely be proposed to the Illinois Supreme Court, which will have to decide what step to take from there.

Illinois Examples

Although Thies declined to discuss any specific situations that have highlighted the need for recusal rules in Illinois, there are a few.

Just last year, Madison County Circuit Judge Barbara Crowder's campaign committee came under fire for accepting $30,000 in donations from area asbestos lawyers and law firms.

A few days before her campaign received these donations, Crowder signed an order that gave three of the donating firms the majority of trial slots for the 2013 advanced asbestos docket.

Crowder was removed from handling the county's asbestos docket and announced that her campaign committee would return the donations.

Hamel attorney Thomas Burkart, who is running for a circuit judgeship in the upcoming election, made a campaign promise in May not to accept any campaign donations from area lawyers.

He previously told the Record that Crowder's situation and the Caperton ruling played a role in his decision not to take campaign money from lawyers.

On his campaign website, Burkart explains that, "If elected, I do not want anyone in my court to worry that they did contribute to my campaign, or that their check was not enough because the other side may have contributed more."

Another Illinois situation that put judicial recusal under the spotlight stems from the 2004 race for the Fifth District seat on the Supreme Court.

In that race, which made history for being the nation's most expensive race of its kind, Justice Lloyd Karmeier and Gordon Maag raised more than $9 million.

A few years later, the plaintiffs in Avery v. State Farm asked the court to reopen their case based on the donations Karmeier had received from State Farm employees in his 2004 campaign.

They claimed that the donations made Karmeier biased when he voted with the majority of the court in 2005 to reverse the billion dollar judgment against State Farm.

Last year, the court declined to grant the plaintiffs' motion to revisit the case.

The Illinois Campaign for Political Reform (ICPR) was one group that filed an amicus brief in the Avery case.

Whitney Woodward, a policy associate at the ICPR, said while her group did not take a position on the merits of the case, it took the opportunity to advocate for judicial recusal standards.

Like Thies, Woodward said there is a need to have guidelines on judicial disqualification and believes the issue boils down to perception.

Given Illinois' history of having some of the nation's most expensive judicial races, Woodward said having standards to address recusal would benefit the public and the judiciary.

Thies said although changing the way Illinois selects its judges would be the best way to reform the system and eliminate the public's concerns over campaign money, past efforts to do so have not been successful.

Until proposals to change the selection system gain steam in the Illinois legislature, Thies said creating standards on judicial disqualification is the best way "to improve the public's confidence in our courts."

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