The ISBA Offers a Proposal to Update the Recusal Rule in Illinois

Center for Judicial Performance and Integrity, Judicial Campaigns, Elections, and Selection , , ,

On Saturday, the Illinois State Bar Association voted on a proposed update to the recusal rules in Illinois. Chicago Appleseed, the Chicago Council of Lawyers, and the Illinois Campaign for Political Reform are heartened to see the ISBA address a subject of critical importance: judicial disqualification.

There are numerous options for addressing disqualification with respect to campaign support.  We believe that the ISBA’s Special Committee on Judicial Disqualification has done a good job of articulating the factors that should be considered in determining whether disqualification is appropriate.  Unfortunately, we do not support the new standard the Committee has proposed for disqualification based on campaign contributions or support.

The Committee’s proposal to remove campaign support from the rubric of Illinois Supreme Court Rule 63(C)(1) to create a new 63(C)(3) represents a contraction, rather than either an expansion or clarification of the existing Rule. Significantly, the Committee’s use of the Caperton language—“a probability of bias”—instead of the existing Rule 63 language—“where the judge’s impartiality might reasonably be questioned”— may create a different standard for disqualification based on campaign support.  We do not believe that changing the standard so as to make it harder to disqualify judges for campaign support than for other reasons will instill confidence in the judiciary.

We believe that a judicial recusal standard should seek to alleviate public concerns about the impartiality and independence of the judiciary.  We must work to instill trust in the judiciary.

We agree with the ISBA Special Committee that there is a need to focus on campaign contributions and to formulate the factors that should be considered.  However, we believe that the current “reasonably be questioned” standard in Rule 63 is preferable to the more narrow “probability of bias” standard that the Special Committee standard has proposed, and that a review/appeal process related to recusal decisions should be considered.