Gov. JB Pritzker has dismissed as “ridiculous” questions over whether the state’s two newest Supreme Court justices should recuse themselves from deciding the constitutionality of controversial Illinois laws that would abolish cash bail and ban the sale of so-called “assault weapons,” because entities associated with the governor donated $2 million to the justices’ campaigns.
But questions over the influence of campaign cash on the public’s perception of judges’ ability to remain impartial has long been a subject of concern among the legal community in Illinois and elsewhere, resulting in relatively recent calls for a strong rule to make clear when judges should step aside from hearing cases involving people or organizations that fueled their election campaigns.
The recent questions posed to Pritzker have surfaced as the Illinois Supreme Court prepares to hear arguments on Tuesday, March 14, in lawsuits brought by Illinois prosecutors asserting Illinois lawmakers and Pritzker violated the Illinois state constitution by attempting to ban judges from requiring any criminal defendants to post cash bond to secure their release from jail as they await trial.
Illinois Gov. JB Pritzker
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Under the criminal justice reform law known as the SAFE-T Act, Illinois would become the first state in the U.S. to entirely ban cash bail.
The measure was strongly supported by progressive criminal justice reform advocates, who asserted the use of cash bail fueled systemic racism, particularly harming Black and Latino populations by forcing people of color from low-income households to remain in jail in for months or years as they await trial on criminal charges.
Opponents have asserted the elimination of cash bail, in conjunction with other provisions of the SAFE-T Act, would strip judges of a powerful tool to ensure dangerous criminal defendants remain in custody, unable to commit further crimes, and ultimately are forced to stand trial. They assert this would make cities already suffering under elevated crime rates even less safe.
While noting such dangers, a group of more than half of Illinois’ county state’s attorneys have argued cash bail is established under the Illinois state constitution. Therefore, they argued Pritzker and the Democratic supermajority in the General Assembly violated the state constitution by attempting to eliminate cash bail by simply passing a law. Rather, they say, lawmakers seeking to abolish cash bail should have been required to properly amend the state constitution by placing the question before voters.
At the same time, the state Supreme Court has also scheduled arguments in May over whether lawmakers also violated the state constitution in enacting a law to prohibit the sale of so-called “assault weapons” and “large capacity” ammunition magazines, among other firearm accessories. Supporters of the ban say it is needed to prevent future mass shootings, such as the July 4, 2022, massacre at a parade in Highland Park.
Opponents, however, have filed a storm of lawsuits against the ban. Several lawsuits in federal court assert the law violated the right to keep and bear arms of the Second Amendment, as interpreted by recent U.S. Supreme Court decisions.
But at the same time, other lawsuits have been filed in state court, asserting the law also violated several provisions of the Illinois state constitution. Those questions have resulted in court orders barring enforcement of the law, at least against several thousand plaintiffs involved in those cases.
Illinois Attorney General Kwame Raoul has appealed to the Illinois Supreme Court, seeking a ruling declaring the law is constitutionally valid, or at least undoing the lower courts’ orders.
Caperton and 'serious risk of actual bias'
The key cases will land before the state’s seven Supreme Court justices. Democrats hold a 5-2 majority, thanks to the election last fall of Democratic justices Elizabeth Rochford and Mary K. O’Brien.
Those justices election campaigns were bolstered by strong support from progressive political organizations and constituencies.
Notably, both justices were aided by millions of dollars in advertisements against their Republican opponents, from a political committee created by trial lawyers with strong ties to the Democratic leaders of the Illinois General Assembly.
But the justices also received $1 million each in campaign donations from organizations affiliated with Pritzker.
Pritzker’s campaign organization donated $500,000 each to the justices. Those donations were then followed by matching donations from a Pritzker trust.
The structure of the donations prompted questions over whether the contributions allowed the governor to skirt legislation Pritzker signed into law placing caps on the size of donations to judicial campaigns.
But questions have also arisen over whether justices Rochford and O’Brien should hear the controversial cases, in which Pritzker and those legislative leaders are named as defendants for allegedly violating the state constitution.
The questions center on concerns over whether rulings issued by the court in favor of Pritzker and his fellow Democrats in those politically charged cases would be marred by the perception that such large contributions and political support for those judges had somehow persuaded justices to side with the governor.
Pritzker bristled last week when posed such questions by reporter Greg Bishop, of The Center Square.
“If you’re suggesting that the fact that I gave money to let's say the Democratic Party or the committees that supported candidates means that everybody who’s received any money has to recuse themselves from anything to do with the state of Illinois, that’s ridiculous,” Pritzker said. “And I’ve certainly never asked anybody to vote a certain way or decide on a case a certain way. I would never do that. I never have and I never will.”
However, while Pritzker brushed aside the questions, such concerns over the public perception of judicial impartiality and campaign cash have been raised for at least a decade or more by lawyers and judges in Illinois and beyond.
In 2012, the Illinois State Bar Association empaneled a special committee to address the question of whether the courts needed to establish a rule to guide judges and the public on when judges should step aside from hearing particular cases involving campaign contributors.
The ISBA assembled the panel three years after a landmark U.S. Supreme Court decision. In the ruling in the case known as Caperton v Massey, the U.S. Supreme Court stepped into a state law case in West Virginia, ruling that a West Virginia state Supreme Court justice had improperly refused to recuse himself from hearing a matter in which a politically powerful businessman had spent $3 million to aid that justice’s election campaign.
Notably in that case, the businessman, Don Blankenship, did not donate the funds directly to the election campaign of Justice Brent Benjamin. However, Blan0 kenship’s spending exceeded the total spent on the contest by all other Benjamin supporters, including the justice’s own campaign organization.
In the Caperton case, the Supreme Court noted no one could directly prove those campaign funds ultimately led Benjamin to be the deciding vote in the West Virginia high court’s decision to overturn a $50 million verdict against Blankenship’s company.
But the U.S. Supreme Court majority said it wasn’t enough to fail to prove “actual bias” by Benjamin. Rather, Justice Anthony Kennedy, writing for the majority, said Benjamin violated the constitutional due process rights of the plaintiffs who were defending the verdict by refusing to recuse in light of the heavy support by Blankenship of Benjamin’s campaign.
Justice Kennedy said it was enough that there was a “serious risk of actual bias – based on objective and reasonable perceptions – when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.”
It is unclear what impact the findings of the Caperton decision may have on the Illinois cases, should any of the parties wish to petition the U.S. Supreme Court for review under the Caperton holding related to recusal and campaign contributions.
Rules changed elsewhere, but not Illinois
But following the Caperton decision, the leadership and members of the state bar association agreed that rules should be added to state court rules to require judges to recuse themselves when they are presented with cases involving large campaign contributors.
“A judge shall disqualify himself or herself in a proceeding where monetary or non-monetary support related to the judge’s election or retention creates a probability of bias. Factors to be considered in determining whether disqualification is required include, but are not limited to: the amount of the monetary support; the nature of nonmonetary support; the timing and impact of support; the issues involved in the proceeding; whether the proceeding was pending or likely to be pending before the judge when the support was provided; and the connection of the supporter to the judge, to the proceeding, or to the litigants or attorneys participating in the proceeding.”
In the report, the special committee specifically cited rising levels of campaign spending in Illinois Supreme Court races to support the need for such a rule.
In October 2012, the ISBA Board of Governors backed that new proposed rule, and it was later endorsed by the full Illinois State Bar Association Assembly.
Across the country, the legal communities in several other states endorsed similar rule changes to either establishing “bright line” rules concerning campaign funding and recusal or to change rules and guidelines to come into line with the holdings in Caperton.
In Illinois, however, the state Supreme Court did not approve the rule, and no rules concerning the need to recuse in light of campaign contributions exists. The rule was also not included in the state’s new Code of Judicial Conduct, which took effect this year.
Rather, Illinois’ code still leaves it to judges to decide if a relationship with a party involved in a lawsuit exists that should require them to step aside.
Members of the ISBA special committee contacted by The Cook County Record either did not reply to requests to comment on the need for recusal, or opted not to speak on the record, citing concerns over political and professional sensitivity.
However, in an article published in August 2012 by the Illinois Bar Journal concerning the work of the committee, members of that committee did not hold back in supporting the need to for recusal reforms to ensure the public could have faith that the state’s judiciary was fair and unbiased.
In the article, written by Maria Kantzavelos, attorney Christopher Hurley, of the firm of Hurley McKenna & Mertz, of Chicago, called the Caperton case “absolutely embarrassing to the judiciary." He said Illinois needed to “get out in front of this issue,” particularly as more and more money poured into Illinois Supreme Court elections.
"We don't want that (Caperton) to happen in Illinois," Hurley said, adding: "We don’t want the public to think that justice is for sale.”
In the article, Illinois Appellate Justice Michael B. Hyman – who was then a Cook County Circuit Judge – said judges “can’t be too careful of guarding our integrity.”
“As judges, without the power of the purse, all we have is the respect and trust of the public in our decision making. So anything that could … tarnish our decision making, we need to ensure that it won’t have a negative effect," the article quoted Hyman saying.
And Gino DiVito, a former Illinois appellate justice and attorney with the firm of Tabet DiVito & Rothstein, who served as co-chair of the special committee, added in the article:
“People have a tendency to believe that campaign contributions have an effect on judicial thinking and outcomes. That’s got to be addressed to some degree.”