Panel discusses ethical considerations of judicial campaign contributions

CHICAGO -- When Illinois Supreme Court Justice Mary Jane Theis was preparing her 2012 bid to keep the seat she was appointed to two years earlier, she said a poll showed the public barely knew her name.

Speaking Wednesday at a panel discussion about judicial campaign contributions in Chicago, Theis said her political advisers told her the poll revealed she had 7-percent name recognition going into the race while her opponent’s figure stood at 33 percent.

“It was not a happy day,” Theis told attendants of the event, which was presented by the local chapter of the American Constitution Society for Law and Policy (ACS), the Illinois Campaign for Political Reform (ICPR) and the Chicago law firms of Cohen Law Group and Hughes Socol Piers Resnick Dym Ltd.

But, the good news, Theis said, was that the poll also showed that voters would be more likely to vote for her if they knew she had more than two decades of judicial experience and had been deemed “highly qualified” in bar group ratings.

Given those findings, the justice said her political advisers crafted a campaign message that focused on her experience, qualification and leadership and then stressed the importance in getting that message out to the public.

Like many campaigns, Theis said television advertising played a key role in sharing her message and something that came along with a price tag requiring some financial help from supporters. She said previous campaigns for a Cook County seat on the state high court cost about $1 million.

But unlike candidates running for political offices outside of the judiciary, Theis told her advisers that she couldn’t help when it came to seeking donations because Illinois Supreme Court Rule 67 prevents judicial candidates from personally soliciting campaign contributions.

“Political people are not used to that,” she said.

Theis said the issue of campaign contributions in judicial races received a lot of attention after the U.S. Supreme Court’s 2009 decision in Caperton v. A.T. Massey Coal Co.

This case came to the nation’s high court after West Virginia Justice Brent Benjamin refused to recuse himself from hearing an appeal in a matter between the two parties, one of which asked him to disqualify himself on the basis that he received campaign contributions from the other.

Noting that the case addressed an extraordinary situation, the majority of the U.S. Supreme Court held that due process requires a judge to recuse himself when there is the probability of bias.

The dissenting justice asked 40 questions as to how the court would go about applying such a standard, Theis said, adding that "Caperton is problematic in its application for a lot of reasons."

While some states have attempted to clear up these questions by adopting their own recusal standards, Theis said she believes the real issue that needs to be resolved deals with the public perception that campaign contributions play a role in judicial decisions.

Illinois has not yet created a post-Caperton recusal rule, but there are two requests to do so currently pending before Theis and her colleagues on the bench.

Although she did not specifically address either, Gino DiVito, a former appellate court justice, spoke in favor of a proposal pitched by the Illinois State Bar Association and Whitney Woodward with ICPR shared the joint recommendations of her group and the Chicago Appleseed Fund for Justice.

DiVito served as co-chair of the ISBA special committee that crafted the judicial disqualification proposal, which the group's Assembly approved in December and is now pending before the Supreme Court.

The ISBA proposal, he said, would require judges to disqualify themselves if “a probability of bias” exists after considering relevant circumstances, including campaign contributions.

DiVito, an advocate of changing Illinois’ system of electing judges to a merit selection system, said there will be concerns over judicial independence as long as money continues to flow into judicial races.

While some states have adopted rules requiring judges to learn and then disclose campaign contributions made by parties in cases before them, DiVito said “that isn’t the way to go” because that would then make “contributions central in every judicial proceeding.”

On behalf of the ICPR, Woodward said the reality is that judicial candidates need to raise money and that the public perceives that money plays a role in the judicial decision-making process.

“That is deeply troubling to me,” she said. “The system suffers under the status quo.”

The ICPR, she said, agrees with the ISBA that the state high court needs to provide guidance on the issue, but disagrees over the bar group’s use of “probability of bias” in its proposal.

Her group , she said, believes judges should have to disqualify themselves when there is a “reasonable question of bias.”

The Supreme Court has not yet formally addressed the requests for disqualification standards.