Chicago group submits brief on recusal standards to Supreme Court

The Chicago Appleseed Fund for Justice recently submitted a policy brief to the Illinois Supreme Court, pushing for the implementation of recusal standards.

Submitted late last year, the group’s brief marks at least the second request for the court to address the issue of judicial disqualification that was thrust into the national spotlight by the U.S. Supreme Court’s blockbuster opinion in Caperton v. A.T. Massey Coal Co.

Following the high court’s 2009 ruling in Caperton, the American Bar Association’s (ABA) House of Delegates adopted Resolution 107, which called on states to individually implement disqualification standards requiring more transparency with campaign contributions to judges, among others.

Other groups, including the Brennan Center for Justice in New York, have offered their own recommendations on the issue and in December, the Illinois State Bar Association (ISBA) formally submitted a proposed rule on judicial disqualification to the state high court.

ISBA President John Thies said this week that he has not yet heard from the court on whether it has any plans for the bar group’s proposal.

The ISBA’s proposal, which was not discussed in the brief submitted by Chicago Appleseed, would require judges to disqualify themselves if a probability of bias exists after considering relevant circumstances, which include campaign contributions.

The brief did, however, analyze the standards recommended by the Brennan Center and the ABA, as well as rules and proposals from other states.

Written by Elizabeth Monkus, a staff attorney and policy analyst for the group, the brief notes that while Illinois law currently allows parties in civil cases to file motions for substitution of a judge as a matter of right and for cause, it does not have any rules for appealing denied substitution motions.

Both the ABA and the Brennan Center recommend that states adopt clear standards when it comes to campaign contributions, something Chicago Appleseed asserts would "make the recusal process uniform and fair.”

“The appearance of campaign donors as litigants and attorneys in the courtrooms of elected judges raises significant questions about the impartiality of those judges and the general integrity of the bench,” the brief states.

Chicago Appleseed stresses that, “These are the realities of our current privately-funded elected judiciary and may become even more prominent as a result of unlimited outside interest group spending in elections following” the U.S. Supreme Court’s ruling in Citizens United v. Federal Election Commission.

The brief notes that Chicago Appleseed “has previously proposed an accessible public base of donors to judicial campaigns as a means of facilitating recusal or disqualification of judges where appropriate.”

“We believe that if attorneys and litigants have easy access to verified public information about campaign donations to judges, attorneys will be able to use Motion for Substitution of Judge as of Right or Motions for Disqualification for Cause more effectively, when they believe campaign donations have arguably created a conflict,” the brief states.

“Clear guidance to judge regarding disqualification will promote consistency in recusal decisions will go a long way toward raising confidence in and protecting judicial independence and impartiality.”

On top of clear standards and enhanced transparency, Chicago Appleseed contends that additional procedural safeguards will further improve the process.

One of these safeguards would be to require independent judges assigned to hear motions for disqualification for cause to make a record of the reasoning behind their decisions.

Doing this, the brief asserts, would enhance transparency and allow “adequate review where necessary.”

According to the brief, at least three states --Arizona, California and Utah have adopted recusal rules based on the ABA’s model and nine supreme courts have implemented disqualification standards tailored to their states.

Chicago Appleseed also notes that Michigan, New York, Tennessee and Georgia have received recognition for their recusal rules, all of which make specific references to campaign contributions and disclosure.

While standards adopted by other states vary, the group asserts that having clear standards as to when campaign contributions should trigger recusal and enhanced disclosure would go a long way to improving the public’s confidence in Illinois’ judiciary.

The brief can be found at chicagoappleseed.org.