Latest News

In 2011, Chicago Appleseed, with assistance from pro bono attorneys at DLA Piper filed an amicus brief in the Illinois Supreme Court case, Avery v. State Farm. We took no position on the merits of the case, which involved a consumer dispute over replacement parts for insured cars damaged in crashes, but filed an amicus addressing issues raised by the plaintiff’s lawyers concerning judicial campaign contributions by the defendant.

As the original case worked its way through the Illinois appeals process, in 2004, “Illinois saw the most expensive judicial election campaign in history, with the two candidates for a district-based seat on the supreme court raising $9.3 million–more than was raised in 18 of the 34 U.S. Senate races that year.” In 2005, when the case first reached the Illinois Supreme Court, the winner of that election, Justice Lloyd Karmeier, sat on the panel which heard the case. Chicago Appleseed felt the case clearly demonstrated the need for clearer recusal standards and a more robust recusal procedure, but the Illinois Supreme Court did not address those questions in its brief order denying the appeal.

There is currently pending a federal RICO case, Hale, et al. v. State Farm, 2013-cv-00660, filed by three plaintiffs from the Avery case, alleging a scheme to avoid pay-out on the Avery verdict. Justice Karmeier and a member of Illinois State Bar Association Judicial Evaluation Committee (Robert Shultz) which evaluated Karmeier for the election have been subpoenaed to testify in the case. Mr. Shultz was also a principal attorney for State Farm in the state case, which was pending at the Illinois Supreme Court at the time of Justice Karmeier’s election and defeat of Justice Maag, who had previously affirmed the state court verdict of $1.05 billion against State Farm.

At the end of February, the U.S. District Court for the Southern District of Illinois ordered their depositions to go forward. In so doing, the Court reversed an earlier order in the case, allowing Justice Karmeier and Mr. Shultz to answer written interrogatories in lieu of giving a deposition. In finding that it is appropriate to depose Justice Karmeier, in person, with regard to his campaign, including “how the campaign was financed”, the Court stated that “[w]ithout allowing the inquiry, there will never be light on the facts of this case”.

Our concerns in this case are with the rules and procedures for recusal when a litigant has made a considerable contribution—monetary or otherwise—to the election of a judge hearing the case. Not only is there a serious question about the integrity of the verdict because of State Farm’s contributions to Karmeier’s campaign, there is also, now, more than seven years of litigation related to concerns about the integrity of the verdict because of the Karmeier election.

We urge the Illinois Supreme Court to consider an update to the recusal standard where campaign financing is concerned.  The current Rule 63(c) is expansive, stating that “a  judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned” and thereafter enumerates some examples where impartiality becomes suspect. However expansive the language of the Rule is currently, we believe it would benefit from a specific acknowledgement of the threat to the appearance of impartiality that arises in campaigns. We proposed a new subsection to the Rule:

1. Disqualification.

 (1) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where:

 [. . . .]

 (f) the judge knows or learns by means of a timely motion that a party or its lawyer or law firm has given monetary or non-monetary support related to the judge’s election or retention such that the judge’s impartiality might reasonably be questioned . 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 non-monetary 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.

This modification provides clear guidance to judges faced with recusal questions and demonstrates to the public a strong commitment by the Court to proactively addressing questions of bias. The change incorporates the same standard for disqualification (“in a proceeding in which the judge’s impartiality might reasonably be questioned”) as the existing Rule 63(c)(1) and fits within the structure of the existing Rule. Judges and attorneys are already familiar with the general standard, and this language regarding campaign support matches that found in American Bar Association’s Model Code of Judicial Conduct.

It is a modest revision that parallels the disqualification standard adopted by the Tennessee Supreme Court in January 2012, which has been recognized as a national model for protecting the appearance and reality of impartiality in a privately-funded, elected judiciary. The Tennessee rule accomplishes this by giving judges a comprehensive list of factors to contemplate when handling cases involving litigants who have supported their campaigns. It provides judges with direction that will protect them from questions of bias by outlining the numerous factors they should consider when contemplating disqualification. The Rule and Commentary gives Tennessee judges flexibility so they can make decisions that are tailored to the situations in question. The Court’s adoption of this comprehensive and clear standard addressing those recusal questions will demonstrate to the public that justice is not to be influenced by campaign contributions. And it would do so without automatically disqualifying judges from every proceeding involving a litigant or party that has contributed or made expenditures supporting the candidate and without prohibiting attorneys from participating in the campaign process.

Adoption of a clearer recusal standard where campaign support is an issue will prevent costly litigation like the State Farm case. It will also go a long way toward restoring faith in the impartiality of the courts.