ICPR co-sponsored a panel discussion with the Chicago Lawyer Chapter of the American Constitution Society, Hughes Socol Piers Resnick Dym, Ltd., and Cohen Law Group, PC. April 24.
The discussion, titled “Judicial Campaigns and the Ethical Concerns Raised by Contributions,” explored questions of impartiality and bias that arise from Illinois’ privately-funded judicial election system. ICPR is thankful for the opportunity to participate in this discussion.
Justice Mary Jane Theis of the Illinois Supreme Court, the Hon. Gino DiVito, formerly of the First District Appellate Court of Illinois and now with Tabel DiVito & Rothstein and ICPR’s Whitney Woodward discussed these questions and reform opportunities. Below is the text of Ms. Woodward’s presentation. For more information on the topic, see the Illinois State Bar Association’s Report and Recommendations and the Chicago Appleseed Fund for Justice Policy Brief.
Good afternoon. Thank you to Justice Theis and Justice DiVito for demonstrating such leadership on this issue.
ICPR’s interest in this judicial campaign contributions and ethics is rooted in our desire to grow public confidence in our government and political system. We are a public interest group, not a legal group, and that influences how we approach this topic.
We share with many of you the concern that judicial campaign contributions can have a corrosive impact on the public’s confidence in our judiciary. ICPR believes that changes to Court Rules regarding disqualification can address this perception problem and greatly reduce the opportunity for politics to affect the administration of justice.
For many, even most, Illinois residents, the court is a foreign country. The majority have little interaction or personal knowledge of our judges and how legal decisions are rendered. They can’t speak to whether our judges are impartial, fair and trustworthy.
But what they do know is that a judge yields immense power. And so it is important not only that judges are impartial when they do their jobs, but also that the public believes that judges are impartial.
When Illinois residents do have direct contact with the court, it’s usually a significant and stressful event. Maybe they’re involved in a lawsuit or criminal matter, or are dealing with an issue with their business.
For them to have confidence in the outcome of the case, they need to have confidence in the courts and the judicial process.
Unfortunately, two of the main sources of public’s knowledge about the courts are elections and news reports – neither of which may be representative of the judiciary as a whole.
Voters tend to rely on the political parties and campaign ads when it comes to making electoral decisions, if they cast votes on judicial candidates altogether.
News media coverage plays a significant role in the public’s understanding of the courts. But most coverage of the courts is cursory. Scandal and controversy are given top billing, even if those instances are more one-offs rather than representative of the entire branch.
In an election context, the media tends to focus on the “horserace” aspect of campaigns, including how much money candidates are raising and from whom they’re raising it. Because judicial candidates should not discuss their personal views of hot-button issues, unlike other candidates for public office, if there’s news coverage of judicial candidates at all, it tends to focus on campaign fundraising.
So that brings us to campaign contributions, judicial ethics and Caperton. As a result of Illinois’ judicial election system, attorneys seeking to become judges must often raise private money from supporters in order to communicate with voters. We know from our analyses of candidates’ campaign fundraising reports that judicial candidates’ most common donors are attorneys, law firms, the parties and interest groups. These are entities that are most likely to have an intimate knowledge of the candidates’ qualifications
But those are the people most likely to appear in the courtroom of the judge-turned-candidate or a vested interest in the outcome of cases likely to come before those judges.
Those courtroom appearances may, in turn, create a troubling perception that the administration of justice can be affected by campaign contributions. Perhaps this is why poll after poll shows that a majority of voters believe that campaign contributions influence court rulings – including a 2005 ICPR poll which found that 85 percent held this belief.
But it’s not just voters who think this. Even more troubling is that judges themselves have indicated concern that contributions affect decisions.
Whether contributions actually influence judicial conduct or not, the system suffers under the status quo. When a judge does not disqualify from a case when a party or lawyer has spent significant money to elect or defeat him, there are going to be questions about whether that judge can be impartial.
ICPR believes that revising the Code of Judicial Conduct to expressly state that large contributions may sometimes be an appropriate reason for disqualification is an effective and much needed response to this problem. Doing so will communicate to the public and players in the judicial arena alike that the administration of justice is separate from politics and campaigns.
There are many ways the Court can use the rulemaking process to achieve this goal. But ICPR believes two elements are essential:
1) A clear standard that gives judges guidance on how to proceed when assigned cases involving significant campaign contributors or when faced with a motion for recusal …
2) And the establishment of processes that will ensure these issues are addressed consistently and fairly, and without inappropriately impeding judges from carrying out the duties of their office.
On the first note.
We agree with the ISBA’s recommendation that the Illinois Supreme Court revise its rules to give judges some guidance on how to proceed when assigned cases involving known, large campaign contributors or when evaluating motions for recusal based on campaign spending. The ISBA has done a great job at outlining a host of issues that should be considered, including the size and timing of contributions, whether they were given directly to the candidate’s campaign committee or to another political committee, the size of the contribution compared to the overall campaign budget.
The cost of individual judicial campaigns varies widely, and can depend on the office sought, the location of the contest, the strength of the candidates themselves, outside groups’ interest in the race, partisan reasons, and the election cycle. So while on first glance it may be tempting to seek a brightline standard for when recusal is necessitated, establishing a specific dollar amount, anything above which would mandate recusal is not an appropriate way in which to address this issue.
But where we respectfully disagree with the ISBA’s proposed rule has to do with the standard established for when recusal is needed. The ISBA’s proposed rule outlines a “probability of bias” standard – a term we feel may unintentionally represent a step backward from the current system.
We recommend that any disqualification rule use the standard already used in Rule 63C, when a judge’s “impartiality might reasonably be questioned.”
This standard is well known to judges already. It’s also consistent with the recommendations of the American Bar Association and has been incorporated into the new recusal rules adopted by Tennessee and Georgia, which have been identified as national models for state courts seeking to insulate their judges from the issues that can arise from outsized contributions.
The situation at the heart of Caperton, from which the “probability of bias” proposal comes, thankfully was an extreme one. The majority in Caperton found that there was a “serious, objective risk of bias” when the judge in that case refused to recuse. The majority said that was a due process violation.
But the majority also said that state courts that have elected judiciaries, such as ours, would benefit from adopting recusal standards that are more rigorous than the minimum that the Constitution requires.
If the goal is to address not only situations where there may be actual bias, but also situations where the public may question if there was bias, which is to say, if we want a rule that can address situations just as troubling although not as extreme as the fact pattern in Caperton, than we should take the majority’s advice and set a more useful standard.
Several states have already done this, and we in Illinois can learn from their experience. Indeed, the model adopted in Tennessee which uses the “impartiality might be reasonably be questioned” standard and which has been in place for more than a year now, shows that there is a way to address this issue without disrupting the administration of justice.
We anticipate that revisions to the Code of Conduct will help judges and attorneys evaluate disqualification questions regarding campaign contributions in a thoughtful and cautious way.
But if our interest is in protecting public confidence in the courts, it is essential that we ensure procedures are implemented to ensure that recusal questions are dealt with consistently and fairly.
We believe it is imperative to create a mechanism that ensures that final recusal decisions are not left in the hands of the judge in question, which is what happened with the West Virginia judge at the center of Caperton.
It’s important that if a party feels recusal is appropriate, but does not receive it from their assigned judge, that party has an avenue by which to appeal that decision. An impartial arbiter – such as another judge unaffiliated with the parties, or a panel of judges – should be tasked with reviewing appeals as requested.
Here again, it’s important to keep in mind that unlike most of you in this room, the vast majority of Illinoisans don't know anything about judges. Illinois’ government has a rich history of scandal and corruption, including, sadly, in the judiciary. And so unfortunately, voters may not be predisposed to have complete and full faith in judges’ impartiality.
Ensuring that someone else is there to review those decisions will encourage thoughtful decision-making by judges and parties alike. As members of the court contemplate this issue, it may choose to pursue some sort of a tiered system by structuring different procedures at the trial versus the appellate level.
We also believe requiring judges to respond to recusal requests – and specifically, denials – in writing is needed. Doing so will enabling both parties to better understand the factors considered by the judge and the ultimate decision rendered. And written decisions will help judges learn from their peers how to handle these tricky questions and promote consistent decision-making.
And lastly, as Judge DiVito discussed, we acknowledge that judges are not required to stay informed of their campaign contributors and, indeed, that some choose to not to.
But this doesn’t eliminate the possibility that campaign contributions will become an issue in a case.
Contribution records are public, and are relatively easy to find on the web. Parties in a case may discover relevant campaign contributions during the course of their work, or contributions may be brought to light through news reports. Discovering these potentially troubling, outsized contributions after proceedings have begun can delay decision making, which is in nobody’s interest.
ICPR believes that enhanced disclosure of relevant campaign contributions is needed to address this problem.
Again, there are many ways the Court could pursue this. All parties could be required to make a good faith effort to disclose known, relevant campaign contributions at the start of proceedings.
Alternatively, relevant campaign contributions currently gathered by the Illinois State Board of Elections could be compiled into a database, then made accessible to parties to promote the effective and thoughtful use of recusal motions.
ICPR believes that Illinois' courts should not allow plaintiffs, defendants and attorneys to question the impartiality of judges handling their cases. We deserve better than that.
Through the establishment of a comprehensive and thoughtful rule, Illinois can become a national leader in judicial ethics. We look forward to contributing to that effort in the coming months.