Saying the integrity of the Illinois Supreme Court itself is at stake, lawyers representing gun owners from Macon County have formally asked the court’s two newly elected justices, Democrats Elizabeth Rochford and Mary K. O’Brien, to step aside from hearing an appeal over the fate of the state’s ban on so-called assault weapons, because the justices accepted more than $2.6 million in campaign donations from Gov. JB Pritzker and other prominent Democrats, and also pledged during their campaigns last fall to support assault weapons bans.
On March 30, attorneys Jerrold H. Stocks and Brian D. Eck, of the firm of Featherstun Gaumer Stocks Flynn & Eck, of Decatur, filed a motion with the Illinois Supreme Court, requesting the two justices recuse themselves in a lawsuit which argues the new gun ban violates the Illinois state constitution.
The attorneys are representing a group of Macon County gun owners and sellers, notably led by State Rep. Dan Caulkins, R-Decatur, in one of the many pending legal challenges to the controversial Illinois ban on “assault weapons” and so-called large capacity magazines.
Rep. Dan Caulkins
| repcaulkins.com
In their motion, the attorneys say, without recusal from justices Rochford and O’Brien, they will be left arguing at a hearing at which they “will look to the table of the opposing counsel and see the leading cash donors, approximately $2,681,000 of campaign contributions to the Justices … and look up to the dais to see Justices pledged to support the agenda at issue.”
The motion asserts that without recusal, gun owners from Macon County and elsewhere in Illinois, who are looking to the high court to fairly hear their cases, will have their rights to due process denied.
“Under the circumstances, it is unreasonable to conclude that public perception would accept a decision as impartial,” Stocks and Eck argue in the motion. “Public confidence in any decision will suffer if the Justices participate in consideration of the (challenge to the ban.)”
The Macon County lawsuit is the first of the legal challenges to secure a hearing before the Illinois Supreme Court.
Earlier this year, Pritzker and the Democrat-dominated Illinois General Assembly enacted the so-called Protect Illinois Communities Act, which bans the sale or purchase of a long list of semiautomatic firearms, which the state has labeled “assault weapons,” and the “large capacity” ammunition magazines those firearms use, among other “assault weapon” accessories.
The law also directs Illinoisans who already own such weapons to register them with the state.
Anyone who doesn’t abide by the law could face fines or imprisonment.
The law has sparked a storm of lawsuits from thousands of individual plaintiffs from across the state.
Cases in federal court in both Northern and Southern Illinois are actively being lined up to land before the U.S. Seventh Circuit Court of Appeals, for potential action to either strike down the law, or send the matter onto the U.S. Supreme Court. In those cases, challengers contend the state’s gun ban all but defies the U.S. Supreme Court’s recent decisions appearing to forbid such wide-ranging gun bans as being out of step with the country’s tradition of gun regulation under the Second Amendment.
While those cases remain pending, however, other plaintiffs have joined together on lawsuits in state court. Those suits assert the law violates the Illinois state constitution. Those cases have resulted in temporary restraining orders forbidding the state, for now, from enforcing the gun ban against the individual plaintiffs named in the lawsuits, at least.
A ruling from the Illinois Fifth District Appellate Court upheld those restraining orders. Relying on that appellate ruling, a Macon County judge, hearing the case from Caulkins’ group, then declared the law unconstitutional, setting up an appeal from Pritzker and his fellow Democrats straight to the Illinois Supreme Court.
A hearing on that appeal is scheduled for May.
However, in the meantime, questions have been raised publicly about the ability of the state Supreme Court to fairly hear the challenge to the law.
The questioners, notably including reporter Greg Bishop, of The Center Square, have pointed to millions of dollars in campaign donations made by Pritzker and top Democratic lawmakers to the campaigns of new justices Rochford and O’Brien last fall.
Pritzker, for instance, used his campaign fund and a personal trust to donate $1 million each Rochford and O’Brien.
Entities either controlled by or answerable to top Democratic lawmakers, including Speaker of the House Emanuel “Chris” Welch and State Senate President Don Harmon, donated hundreds of thousands more to both justices’ campaigns.
In all, Stocks and Eck estimate at least a third or more of Rochford’s and O’Brien’s campaign cash came directly from Pritzker and his Democratic allies. Their campaigns were also bolstered by millions more spent on advertisements attacking Rochford’s and O’Brien’s Republican opponents, from a political committee created by trial lawyers with strong ties to the Democratic leaders of the Illinois General Assembly. The committee was led by Luke Casson, an Oak Park trial lawyer who is representing Harmon before the Illinois Supreme Court.
Pritzker has repeatedly and loudly rejected suggestions that Rochford and O’Brien should recuse themselves from hearing arguments over both the gun ban challenge and a separate action challenging the constitutionality of the state law abolishing cash bail. Pritzker, Welch and Harmon are all named as defendants in the cases challenging both controversial and constitutionally questionable laws.
Pritzker has labeled assertions questioning the impartiality of Rochford and O’Brien to be “ridiculous,” saying he “would never” and has never “asked anybody to vote a certain way or decide on a case a certain way.”
Despite Pritzker’s handwaving dismissals, judicial campaign contributions have long been a sore subject for the legal community in Illinois and throughout the country.
That request was fueled by concern over the U.S. Supreme Court’s 2009 decision in Caperton v Massey, in which the nation’s highest court determined a West Virginia Supreme Court justice had trampled the due process rights of litigants before that court when he refused to recuse himself from a case, despite having received substantial support for his political campaign from a businessman involved in the $50 million case.
In that decision, the U.S. Supreme Court said no one needed to prove “actual bias.” Rather, it was enough, they said, 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.”
Despite the concern from the Illinois legal community, the Illinois Supreme Court never adopted the rule change recommended by the state bar association, instead continuing to leave it to judges to determine when recusal may be appropriate.
Citing the Caperton case, however, Stocks and Eck said such risk of bias is readily apparent in the Macon County gun ban challenge, should Rochford and O’Brien reject their recusal request.
In addition to the large campaign donations, Rochford and O’Brien also both received ringing endorsements from gun control groups, who also endorsed Pritzker and other Democrats for their strong support for a new state law banning “assault weapons.”
Stocks and Eck said they believe Rochford and O’Brien both agreed to a “reported pledge to support” an “assault weapons” ban during their campaigns to win those endorsements.
Citing the existing Illinois Code of Judicial Conduct, Stocks and Eck argue in their motion that there is no way for Rochford and O’Brien to hear the case, while being free of any whiff of bias or corruption stemming from the campaign contributions and endorsements they accepted from Pritzker, Illinois Democrats or gun control activists.
“In this circumstance, the impact of the political influence is far more corrosive to the appearance of an independent judiciary than large contributions from one private contributor,” Stocks and Eck wrote. “If one private contributor gave one million dollars to a campaign and had one case come before the Court, would there be any hesitation to recuse? Here, the source for the money yields the perception that the judiciary is a ‘rubber stamp’ for the executive and/or legislative branch.”
Anything short of recusal, they said, would further a public perception that “Illinois government reeks of corruption,” and potentially violates the due process rights of Illinoisans. While the threat is not made plain in the filing, the lawyers repeatedly pointed to the Caperton case, indicating a potential willingness to appeal any decision to the U.S. Supreme Court, alleging the state court violated their rights in manner similar to that rejected by the U.S. Supreme Court in Caperton.
“The Justices (then candidates), by allowing their campaign committees to accept the unreasonable campaign contributions and pledging a position on the issues now presented in this appeal, erode public confidence in their independence to consider this case,” Stocks and Eck wrote.
“This Motion presents the occasion for the Court to take measure of the public perception of Illinois government and to assure that the judiciary preserves its integrity.”
Neither Rochford, O'Brien nor the Illinois Supreme Court have yet to respond to the petition.
However, both Rochford and O'Brien declined to recuse themselves from hearing arguments over the abolition of cash bail. And both justices have already authored decisions on cases argued months before they arrived on the court, including a controversial and consequential ruling on the scope and reach of Illinois' biometrics privacy law.