Birkett defends $10,000 loan from DuPage judge

From The Chicago Tribune:

Birkett defends $10,000 loan from DuPage judge
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By Ray Long, Tribune staff reporter. Tribune staff reporter Dan Mihalopoulos
contributed to this report

September 26, 2002

Under fire for accepting contributions from defense attorneys, DuPage County
State's Atty. Joe Birkett also accepted a $10,000 loan for his Republican
campaign for attorney general from a sitting judge in his home county,
campaign records show.

Birkett on Wednesday acknowledged soliciting the loan from DuPage County
Circuit Judge John Elsner, who lent the money through his campaign
committee. Birkett said he and Elsner are longtime friends who worked
together in the county prosecutor's office before Birkett became state's
attorney.

The loan, made only weeks before the March primary as Birkett battled a
wealthy River Forest lawyer for the GOP nomination, is permissible under the
state's loosely written, almost-anything-goes campaign finance laws. But the
practice was criticized by some judicial ethicists who questioned whether a
prosecutor should be placed in a position tantamount to owing money to a
judge who could preside over a case involving the state's attorney's office.

"A loan from a sitting judge to any political candidate is problematic and
to a state's attorney in the judge's county is even more problematic in a
way that contributions would not be," said Steven Lubet, a law professor at
Northwestern University.

"It creates a relationship in which the judge doesn't get the money back
unless the candidate pays it. So there's a set of reciprocal obligations,"
he said. "The relationship between a judge and a state's attorney should be
limited to the courtroom. They shouldn't have financial entanglements."

Birkett defended the loan.

"It's perfectly appropriate," Birkett said. "There is nothing improper about
it. ... If I felt there was anything improper about it, I would not have
accepted the loan."

Contributions to Madigan

In recent weeks, the issue of campaign donations to Birkett and his
Democratic opponent, state Sen. Lisa Madigan, has taken center stage in the
race for the state's top law-enforcement office.

Madigan has returned $50,000 in contributions from questionable sources,
including $25,000 from a musician-songwriter whose music espouses hate. That
donor is a son of a Cook County judge who got special campaign help from
Madigan's father, House Speaker and state Democratic Chairman Michael
Madigan.

Lisa Madigan, a North Side state senator who also is a lawyer, has received
individual contributions from at least five sitting Cook County judges in
her bid for attorney general, totaling $5,200, state campaign finance
disclosure records show. She has received an additional $3,180 for her
attorney general bid from the campaign funds of judicial candidates and
judges, but no loans, records show.

Birkett already has been put on the defensive over tens of thousands of
dollars he has received in the last year from criminal defense attorneys who
practice in DuPage, including some with whom his office has reached plea
bargains. Lisa Madigan specifically has criticized a plea deal struck
between Birkett's office and an attorney representing a man whose wife
suffered burns after he allegedly threw her into a fire.

The man was originally charged with attempted murder and arson, but under
the deal he pleaded guilty to lesser charges. Prosecutors had sought a
7-year sentence but a judge sentenced the man to 30 months' probation. The
firm of the man's attorney had donated $3,100 to Birkett in the last year.

Birkett has adamantly maintained that justice is not for sale in his office.
But in accepting a loan from a sitting judge in his own county, Birkett has
resurrected questions about the cozy nature of politics and justice in
DuPage.

Legal experts said rules set down by the state Supreme Court to govern
political activity of judges are silent about such loans and do not
specifically ban them. But Lubet said the rules are ambiguous and should be
reviewed.

Under the rules, judges are allowed to engage in such partisan acts as
buying political fundraiser tickets and contributing to political
organizations. But judicial candidates are barred from personally soliciting
or accepting campaign contributions and must leave the fundraising work to
supporters.

Elsner said he believed the loan violated no judicial rules or ethical
guidelines. As a judge who handles mainly civil cases such as medical
malpractice, Elsner said he has minimal involvement with Birkett's office.
He said he has not handled criminal cases in which he would regularly deal
with the state's attorney's office for about four years.

"You had one campaign ask another campaign for a loan, and the loan was
made," Elsner said. "It was one campaign to another campaign of persons who
have been friends for over a decade."

Birkett said he called Elsner himself after hearing that the judge had
raised money in anticipation of a costly primary fight to retain his seat.
But the March primary battle never materialized, so Elsner had money
available in his campaign fund.

"[Elsner] is not doing anything on my behalf other than making this loan,"
Birkett said.

If Elsner sat in judgment of a case that involved Birkett's office, then the
loan would be disclosed in open court, Birkett said. Any party to the case
who objected could ask for a substitute judge, Birkett said.

Birkett said he has not yet repaid the loan but plans to do so sometime
after the November general election.

`Unusual situation'

Birkett said he was Elsner's supervisor when Elsner was assigned to the
special prosecutions unit of the DuPage state's attorney's office.

"I mentored him as a lawyer," Birkett said of Elsner. "I am honored to have
so many people whom I taught and trained on the bench. That's something my
opponent cannot say."

Robert Cummins, a former chairman of the Illinois Judicial Inquiry Board,
called the Elsner loan "certainly an unusual situation."

"The typical campaign committee does not solicit and collect funds to be
used for purposes other than the individual judge's campaign," said Cummins.