Failure to stop in the eyes of the reasonable public

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John Donald O’Shea is a retired circuit court judge and a regular columnist.

On April 18, 2023, The Dispatch ran a front-page story: New justices won’t recuse themselves (in case challenging states recently passed assault weapons bans and high-capacity magazines).

The Justices involved were both Democrats: Mary Kay OBrien and Elizabeth Rochford. (I never met either).

The motion asking them to recuse themselves, or require them to be disqualified from hearing the case, states that during their 2022 campaigns for election to the Illinois Supreme Court, both newly elected justices has received large donations from Illinois Governor JB Pritzker and Speaker of the Illinois House Emanuel Chris Welch are both Democrats who are both named in the suit as defendants (in their official capacities).

While they were candidates, both judges received:

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$500,000 from JB’s campaign for Governor; and

$500,000 from the Jay Robert Pritzker Revocable Trust;

In addition, Justice OBrien received $350,000, and Justice Rockford received $150,000 from the Welch Campaign Committee.

(Both received endorsements from two prominent gun control lobby groups: The Gun Violence Prevention PAC, and The Gifford PAC. Due to word limits, this op ed will not address the issues, if any, which such endorsements may cause).

So, why would anyone give $1 million to elect a judge. I can only think of two reasons:

1. The candidate will be a brilliant, diligent, impartial, independent judge, full of integrity.

2. Donors believe that the judge, once elected, will be grateful, honest, and inclined to repay favors.

For purposes of this op ed, I am assuming here that both judges are brimming with integrity, etc.

But what does the public look like when a judge hears a case when a defendant in the case has the governor of Illinois give the judge $1,000,000?

Is it better because JB Pritzker is being sued only as governor, and not personally?

Does judging a case, after taking a $1,000,000 donation from one of the parties, promote public confidence in the independence, integrity, and impartiality of the judiciary?

Judges are instructed to avoid impropriety and the appearance of impropriety.

Even if the judge is full of integrity, etc., doesn’t it seem inappropriate for that judge to sit on a case where a litigant contributed $1 million to secure the election of the judges?

The first and most important rule governing the conduct of judges is this:

A judge must at all times act in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary and must avoid impropriety and the appearance of impropriety.

In Illinois, when someone becomes a judge, the rules are strict. A judge shall not accept any gifts, benefits, favors, or other things of value, except for the following:

(1) Items of little intrinsic value, such as plaques, certificates, trophies, and greeting cards; .

(10) Gifts, loans, legacies, benefits, favors, or other things of value, if the donor is unlikely to appear before the judge.

A $1,000,000 campaign contribution has little value?

But can a candidate for judicial office accept any gifts, benefits, favors, or other things of value? No and yes.

No, because a judicial candidate must not personally solicit or accept campaign contributions.

In addition, the candidate must prohibit employees from doing on behalf of the candidate what the candidate is prohibited from doing under the provisions of this rule.

Yes, because a judicial candidate subject to public election can establish a campaign committee.

A judicial candidate subject to public election shall instruct the campaign committee: (1) to solicit and receive campaign contributions only as permitted by law;

The comments on these rules are explanatory.

Judicial candidates are prohibited from personally soliciting campaign contributions or personally accepting campaign contributions. This rule recognizes that, in many jurisdictions, judicial candidates must raise campaign funds to support their candidacies and allows candidates to establish campaign committees to solicit and receive reasonable financial contributions or in-kind contributions.

During the campaign, the candidate and the campaign committee must be aware that a contribution may affect the independence, integrity, and impartiality of the judge and may create grounds for disqualification if the candidate is elected to office. .

If I were on the Judicial Inquiry Board and I wasn’t I would read the preceding paragraph in conjunction with the first rule of Judicial Conduct (set out above).

A judge shall not take any campaign contribution that creates, in the eyes of reasonable members of the public, any appearance of impropriety.

And I would read it further to say that, In any case that comes before a judge, where one of the judges’ campaign contributors is a party, and where in the eyes of reasonable members of the public there would appear to be of impropriety, in order to maintain public confidence in the impartiality of the judiciary, all doubts must be resolved in favor of rejection.

Rejecting it would leave the Supreme Court two short of its full seven justices. But the court has the power to appoint two judges to fill temporary vacancies.

There are many judges who are currently sitting or retired who can be appointed to fill the two temporary vacancies to hear the case. Judges who will not bring them the appearance of impropriety. This will promote public confidence.

By not recusing, Justices OBrien and Rockford put themselves and perhaps the entire Illinois Judiciary in a no-win situation. If they rule for the defendants, they will look like the best judges money can buy even if their rulings are infallible. They cannot rule for the defendant without creating an appearance of impropriety or worse, a stench of corruption.

John Donald OShea, of Moline, is a retired circuit judge and a regular columnist.

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