The state’s two newest Democratic Supreme Court justices have each refused to step aside from hearing constitutional challenges to the Illinois ban on so-called “assault weapons.”
Justices Elizabeth Rochford and Mary K. O’Brien said plaintiffs who asked them to recuse can’t prove they are biased in favor of the law, despite receiving $1 million each in campaign donations from the biggest supporter of the gun ban law, Gov. JB Pritzker, and receiving the endorsement of gun control groups who demand those they endorse also pledge to support such weapons bans.
In a statement perhaps tipping her hand concerning how she will ultimately rule in the case, Rochford particularly blasted the plaintiffs’ motion in her reply, calling it an attempt to use “sinister aspersions” as “simply subterfuge to circumvent anticipated adverse rulings.”
“In sum, plaintiffs do not suggest that I am biased or partial in this matter,” Rochford wrote. “Rather, plaintiffs have attempted to show bias based upon inference and supposition, to create the appearance of impropriety where none exists.”
The other justices of the state high court also refused to disqualify Rochford and O’Brien from having a say in the case over the large campaign donations from the governor and the endorsement of the , saying the choice on whether to recuse should rest solely with them.
The decision means the court’s full 5-2 Democratic majority will hear arguments in the case when attorneys for a group of gun owners, led by Republican State Rep. Dan Caulkins, of Decatur, face off against lawyers from the Illinois Attorney General’s office, representing Pritzker and the state’s other top Democrats, at oral arguments next month.
And the refusal by Rochford and O’Brien could also set up the potential for the plaintiffs to appeal the case to the U.S. Supreme Court.
The orders, issued on April 14, each by Rochford and O’Brien, respectively, came in response to a motion filed March 30 by attorneys Jerrold H. Stocks and Brian D. Eck, of the firm of Featherstun Gaumer Stocks Flynn & Eck, of Decatur.
The attorneys represent a group of gun owners and shop owners from downstate Macon County in one of many pending legal challenges to the controversial Illinois ban on “assault weapons” and so-called large capacity magazines.
The law, known as the Protect Illinois Communities Act, was enacted by Pritzker and his Democratic supermajority in the Illinois General Assembly in January. Among other enactments, the law bans the sale or purchase of a long list of semiautomatic firearms, which the state has labeled dangerous and especially lethal “assault weapons” and so-called “large capacity” ammunition magazines typically employed when using such weapons, as well as other accessories.
The law also requires the current owners of such weapons to register them with the Illinois State Police. Anyone who doesn’t comply with the law could face steep fines or imprisonment.
The law has sparked a storm of lawsuits from thousands of individual gun owners and gun shop owners across the state.
Several cases are currently pending in federal courts in East St. Louis and Chicago. Those lawsuits ask the courts to strike down the law as a violation of the Second Amendment right to keep and bear arms, as interpreted in recent decisions by the U.S. Supreme Court.
A federal judge in East St. Louis is expected to soon rule on a request to block enforcement of the Illinois gun ban statewide. U.S. District Judge Stephen McGlynn held a hearing on that question on April 12.
Meanwhile, the debate has also begun before the U.S. Seventh Circuit Court of Appeals, with the questions perhaps ultimately en route to the U.S. Supreme Court.
However, other lawsuits were filed in Illinois state court downstate, challenging the law solely as unconstitutional under the Illinois state constitution. Particularly, those lawsuits have asserted the law violates Illinois gun owners’ and sellers’ rights to equal protection and their rights to keep and bear arms, as enshrined in the state constitution.
Caulkins’ case is the first such lawsuit to make it to the Illinois Supreme Court, after a Macon County judge sided with the gun owners and declared the law unconstitutional. Pritzker and his fellow Illinois Democrats then appealed to the Democrat-dominated state Supreme Court.
Briefs have been filed on both sides in the case, and the state high court has set a hearing date in May.
The motion asserts Rochford and O’Brien cannot possibly escape the public perception that they are biased in favor of the gun ban law.
The motion points to large campaign donations Rochford and O’Brien received from the top Democrats, including Pritzker, during their election campaigns last fall. Pritzker particularly has been singled out for his donations. The billionaire governor donated $1 million each to the justices, using two different sources under his control to donate $500,000 each to the candidates, skirting caps on maximum donations established under Illinois campaign finance laws, signed by Pritzker, ostensibly to protect the integrity of judges.
“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?” the plaintiffs wrote.
“Here, the source for the money yields the perception that the judiciary is a ‘rubber stamp’ for the executive and/or legislative branch.”
Further, the motion noted the judges also received strong endorsements from groups backing gun control, who also endorsed Pritzker and other Democrats for their strong support for a new state law banning “assault weapons.”
The motion noted the groups require candidates receiving their endorsements to first formally pledge to support such “assault weapons” bans.
Without recusal or disqualification, the plaintiffs assert they cannot receive a fair hearing, thus denying them their constitutional rights to due process.
Rochford and O’Brien, however, lashed out at such assertions, saying the plaintiffs can’t prove they ever actually pledged their support for the “assault weapons” ban. Further, they bristled at the assertion that Pritzker’s campaign donations purchased assurances that Pritzker would receive a ruling upholding the law, the governor’s stated desired outcome.
Rochford and O’Brien said other justices in the past have not recused themselves from hearing certain controversial cases, despite hefty campaign donations from parties involved in the cases.
Requiring them to recuse themselves now would then leave the court open to repeated recusal motions long into the future, the justices said.
While the justices’ rulings on the recusal motion settle the matter headed into the May hearing, plaintiffs have indicated such a refusal may not ultimately be the final word on recusal.
Judicial campaign contributions have long been a subject of concern for the legal community in Illinois and throughout the country.
A decade ago, the Illinois State Bar Association formally asked the Illinois Supreme Court to add a specific rule to the Code of Judicial Conduct specifically requiring judges to step aside from hearing cases in which campaign contributions create a “probability of bias.:
That request was fueled by concern over the U.S. Supreme Court’s 2009 decision in Caperton v Massey. In that case, the nation’s highest court determined a West Virginia Supreme Court justice had violated the due process rights of litigants before that court when he refused to step aside from hearing case, despite having received big campaign support from a businessman involved in the 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 state’s legal community, the Illinois Supreme Court never adopted the rule change.
In their orders denying the recusal request, Rochford and O’Brien noted the lack of such a ruling helps to justify their refusal to step aside.
The Caulkins group’s lawyers cited the Caperton decision in saying they believe the presence of Rochford and O’Brien on the bench makes the risk of perceived bias readily apparent.
While not explicitly threatened in their recusal motion, the focus on the Caperton decision raises the real possibility that they may ask the U.S. Supreme Court to step in, as that court did in the Caperton case, should the state high court, with Rochford and O’Brien, side with Pritzker and his fellow state defendants.