In Illinois, judges regularly run for judicial positions. Seeking office carries with it the cost of operating a political campaign, which includes fundraising. So the question becomes: How does a judge who runs for a judicial post keep court decisions separate from collecting campaign contributions from individuals and companies?
The answer was given by Jonathan Lippman, chief judge of the New York state Unified Court System. Judge Lippman said, “We may as well throw off our judicial robes.”
The judge spoke about this issue at The Union League Club of Chicago on May 23. The event was co-sponsored by Justice at Stake, an organization focused on keeping courts fair and impartial. It is based in Washington, D.C. Some local groups, including the Illinois Campaign for Political Reform and the Chicago Appleseed Fund for Justice, were co-sponsors.
Adam Skaggs, senior counselor for the Brennan Center for Justice‘s democracy program in New York, said the U.S. Supreme Court decision in Caperton v. Massey , 129 S.Ct. 2252, cautioned that state courts needed to create recusal rules, where a judge chooses not to hear a certain case because of the taint of campaign contributions to him or her.
Skaggs said 11 states have passed legislation on recusal, but many states have gone the other way. He noted that the vast majority of states have done nothing at all up to now.
In the Caperton case, the Supreme Court ruled that the “serious risks of actual bias” required a West Virginia judge to recuse himself from the appeal of a $50 million verdict. The appellate judge chose not to recuse himself. The defendant in that case argued that the judge should recuse himself after learning that the plaintiff gave millions of dollars of support to the judge’s campaign. The judge refused and cast the deciding vote, which overturned the verdict in favor of the plaintiff.
Skaggs said the most recent states to adopt a disqualification rule after the Caperton decision were Georgia and Tennessee. “They acknowledge that spending can take many forms,” Skaggs said.
In both of those states, recusal or disqualification is required when a judge receives an amount of contributions or support that would raise a question of impartiality. In other states, the judge may require recusal when a party or lawyer makes contributions that exceed an amount during a certain amount of time. In New York, that amount is $2,500 or more to the campaigns of the sitting judge.
Judge Lippman said the New York rule requires administrators to reassign cases so that the judge doesn’t have to be involved. In New York, Lippman said, “It’s simple. It’s easy. There is no agonizing for judges and lawyers.”
Cynthia Gray, director of the center for judicial ethics at the American Judicature Society in Chicago, said Illinois’ Supreme Court has not created a disqualification or recusal policy after the Caperton rule. There is a measure, House Bill 4098 in the Illinois General Assembly, but it remains in the Rules Committee, where it is likely to die when the current legislative session ends.
On the other hand, Peter Bennett, who is the chairman of the American Bar Association Standing Committee on Judicial Independence, said his committee has been looking into recusal rules for years given that an increasing amounts of money are flowing into judicial races. That group convinced the ABA House of Delegates to approve a resolution in 2011 that promotes states to create clear judicial disqualification determinations.
The conclusion of the panelists was that fairness in the judicial system is the goal. Most citizens seem to believe that preserving justice in the courts should occur without judges being elected by avalanches of money in their campaign coffers. No party to any civil or criminal matter should worry that the presiding judge at the trial level or appellate level is biased in any way by campaign contributions.
Kreisman Law Offices has been handling trial matters for individuals and families for more than 36 years in and around Chicago, Cook County and its surrounding areas, including Alsip, Summit, Chicago (Lawndale), Niles, Des Plaines, Rolling Meadows, Maywood, Bridgeview, Park Forest and Riverdale, Illinois.
Robert Kreisman is a member of the Board of Directors of the Union League Club of Chicago where this event occurred.
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