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High-File Docket: The politically refigured Illinois Supreme Court has begun hearing cases

Illustration by Mike Cramer using photographs fo the newly elected justices taken by Terry Farmer, Todd Mizener and Paul McGrath
Mike Cramer

It's bound to be interesting. With four new justices and a high-profile docket, that's about as definitive a prediction as can be made about a politically reconfigured Illinois Supreme Court.

Assessing the partisan balance might be the easiest way to begin. After all, the Democrats picked up a seat on the state's seven-member court last November, giving that party a 5-2 edge. The shift came in the Ottawa-based 3rd District, where Thomas Kilbride, a Democrat, replaced James Heiple, a Republican. Meanwhile, Bob Thomas, a Republican, replaced another Republican, S. Louis Rathje, in the Elgin-based 2nd District, and Thomas Fitzgerald, a Democrat, replaced another Democrat, Michael Bilandic, in one of the three Cook County seats.

Adding to the uncertainty. Justice Benjamin Miller, the most senior member, retired last month after 16 years on the state's high court. The Springfield Republican had presided over the 4th District since being elected to his first term in 1984. His current term would have expired in 2004. His replacement, Appellate Judge Rita Garman, will serve until the next election in 2002. The Danville Republican says she intends to run for a 10-year term at that time. 

The newly elected justices, who will serve 10-year terms, took their seats in December and, together with their colleagues, started hearing cases last month.

But what, if anything, can we know about how they might rule? Most keen court watchers agree it will take some time, likely several years, to gauge this "new" court. "The only thing you can say for sure is that you have five Democrats as opposed to four," says Jim Collins, executive director of the Illinois Trial Lawyers Association. "What does that mean? I don't know."

Still, in a state where politics is a game that can have serious consequences, the attention of many observers remains fixed on party labels. That's especially so in this year of the remap, when Illinois officials must redraw political boundaries for the legislature and the state's congressional delegation. The court will almost certainly have a role to play in that process this year. And though partisanship is not a good indicator of how the court will rule on the vast majority of issues - judges must officially abandon party affiliation when they ascend to the bench - some maintain the justices nonetheless tend to fall back on party affiliation when they consider redistricting, a process that will affect the fortunes of both parties through the next decade.

But while the remap is likely to be the most politically charged issue the justices might face this year, there are other contentious issues on the court's docket, including recommended reforms in the administration of the state's death penalty statute and a review of statutes authorizing judges to extend sentences for some convicted felons. 

The review of the sentencing laws follows a ruling by the U.S. Supreme Court in Apprendi v. New Jersey. Those justices held that any fact increasing a sentence beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. The only exception is a prior conviction.

What that decision will mean for Illinois' extended-term sentencing laws will be up to this state's Supreme Court. And the justices will have plenty of opportunity. Defense attorneys already have used Apprendi to challenge several laws permitting enhanced sentences based on factors separate from the underlying offense. One such law permits a judge to tack extra time onto a defendant's sentence if the underlying crime was "accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty." Another permits a longer sentence when the victim is under 12 years old, over 60 or physically handicapped. 

Illinois lawmakers have already begun to address this issue, too. The legislature approved a measure designed to make the state's sentencing laws comply with Apprendi, and Gov. George Ryan last month was considering whether to sign it into law. Still, there's not much state officials can do to stop courts from striking down laws passed prior to the June decision.

Justice Bob Thomas
Justice Bob Thomas

"This is going to make Cervantes look like child's play," says Rep. James Durkin, referring to the Illinois Supreme Court's 1999 decision in People v. Cervantes that struck down an anti-crime statute, the so-called Safe Neighborhoods Act, as a violation of the state Constitution's single-subject requirement. That ruling cut short the sentences of an estimated 2,800 inmates.

"I would say there are thousands of people in the Department of Corrections who have been sentenced under the extended-term section of our code," adds the Westchester Republican. "If [Apprendi]is ruled to be retroactively applied, I would assume that every individual whose sentence has been extended would have the inherent right to go before that sentencing court for a new sentencing hearing."

The justices also are expected to hear arguments on Gov. Ryan's sweeping anti-gun initiative, the so-called 15-20-Life law. Circuit judges in three counties have invalidated the law, which requires longer sentences for offenders who use guns to commit crime. State lawmakers, meanwhile, have talked about rebuilding the law. 

The ultimate sentence will be under review, too, as the justices consider reform recommendations from their own special committee on the death penalty. The court created the committee in April 1999 amid nationwide concern over whether the death penalty in Illinois and other states has been fairly administered. Most of that concern has centered on so-called prosecutorial misconduct - when prosecutors break or ignore the law to win convictions - and ineffective assistance of defense counsel. The committee was headed by Justice Fitzgerald, then a Cook County circuit court judge.

The panel has recommended, first and foremost, that all attorneys handling capital cases - defense attorneys and prosecutors - be required to meet certain experience standards. The rule would not apply o elected state's attorneys and the state attorney general. In addition, the committee has recommended that prosecutors be required to make a "good faith effort" to identify evidence favorable to the accused and that defense attorneys be allowed to depose the state's witnesses prior to trial.

Chief Justice Moses Harrison II says considering those recommendations will be one of the court's top priorities in the first months of the new term.

Court watchers disagree on whether new justices, each with his or her own learning curve to negotiate, will present an administrative challenge. But

 

ON THE DOCKET

The Illinois Supreme Court will face some controversial issues in the coming year. The seven justices will be asked to decide:

- Whether lawyers hired by state Attorney General Jim Ryan to handle Illinois' participation in the national tobacco settlement are entitled to some $900 million in fees. A national arbitration panel awarded them $121 million, but they argue that under their contract with Ryan they're entitled to 10 percent of the state's recovery, which is expected to top $9 billion. 

Officials in the attorney general's office don't dispute the contract, under which the lawyers were promised a 10 percent contingency fee, but they argue the lawyers must seek legislative approval if they want more than what was awarded by the arbitration panel. The lawyers filed a lien action against the settlement, and the attorney general's office brought the appeal to the high court. 

- Whether the Gift Ban Act, the state's most far-reaching ethics reform legislation since the Watergate era, is constitutional. The law prohibited most gifts to public officials from lobbyists or contractors and restricted campaign fundraising by banning contributions on state property and fundraisers within 50 miles of Springfield in the legislature's final days. It also required immediate reporting of large, last-minute contributions.

Will County Circuit Judge Thomas Ewert invalidated the law in August, saying it was too vague.

- Whether the Southwestern Illinois Development Authority exceeded its authority when it used its statutory power of eminent domain to take property from a private landowner and give it to Gateway International Raceway to use as a parking lot.

The 5th District Appellate Court ruled in 1999 that the authority, which the General Assembly created in 1987 to promote economic development in the East St.Louis region, did exceed its powers. The appeals court justices ruled the land had not been acquired for a "public use." And one of those justices added in a special concurrence that the law creating the agency is itself unconstitutional.

The high court's justices might also address a high-profile administrative issue: whether to require special nominating commissions to evaluate candidates for interim judicial vacancies. There's no rule requiring that candidates for vacancies be subjected to background checks or detailed investigations; the seven-member court depends on the justices to recommend appointments within their respective judicial districts. 

Justices Thomas Fitzgerald and Thomas Kilbride, two of the high court's new members, have said they will use special commissions similar to those employed by Justice Benjamin Miller, formerly the court's most senior member, to evaluate candidates for vacancies in their respective districts.

The Chicago Council of Lawyers last year asked the court to require the commissions through its rule-setting powers as a way to ensure that only qualified attorneys get appointed to the bench. The request came amid news reports that suggested a number of appointments to temporary judgeships in Cook County were determined by political patronage, not the qualifications or integrity of the lawyers who were appointed.

"The idea is to try to remove, as much as we can, the politics from the selections," says Paul Mollica, the group's president.

 

Harrison says managing the court under those circumstances shouldn't be too difficult. "These people are all experienced lawyers or judges, and I don't anticipate any problems," he says. In fact, there is a precedent for the number of new faces on the bench. The high court gained three new justices in 1990 and again in 1992. But it's the first time in recent history that the court has taken on four new justices at once.

This time, though, the state couldn't have asked for a more diverse group of new justices. Kilbride comes with no experience on the bench. He spent most of his career as a general practitioner representing a variety of clients in the Quad Cities area. He also served as city attorney for Silvis and represented a host of other cities and townships. He had not previously been elected to office and was widely considered the underdog against state Sen. Carl Hawkinson, chair of that chamber's Judiciary Committee and former Knox County state's attorney.

"I'm just a regular guy," Kilbride says. "I'm 47. I'm married. I have three daughters. I've worked in the Quad Cities for almost 20 years. I come out of a general practice, handling both civil and criminal work. It's that simple. I don't think I'm anything special or dazzling."

Fitzgerald, who most recently presided over the Criminal Division of the Circuit Court of Cook County, is regarded as one of the nation's top experts in criminal law. He also is considered to be reform-minded, given that he chaired the high court's special committee on the death penalty, was the first of the new justices to call for special committees to evaluate candidates for interim judicial vacancies - the high court was criticized recently for appointments made in Cook County - and was assigned to preside over traffic court in that county in the wake of Operation Greylord, an undercover federal investigation that led to the conviction of 15 Cook County judges in the 1980s. Thomas, who has been on the bench since 1988, most recently served on the 2nd District Appellate Court where, according to legal experts, his opinions were "middle of the road." The former Chicago Bears placekicker served on the DuPage County circuit court before serving on the appeals court and spent several years in private practice.

Garman has served on the bench for more than a quarter of a century. She was appointed to the Appellate Court from central Illinois' 4th District in 1995 and was elected to the seat the next year. She began her legal career by working with poor clients. She served in the Vermilion County state's attorney's office, where she handled juvenile and family cases. Garman was the first woman circuit judge in the 5th Circuit and the first woman to serve on the appellate court in the 4th District. 

Gauging the direction the court will take with its new justices won't be as easy as some would like to think because this court is asked to consider every conceivable legal question. What's more, Illinois justices have never tended to agree with one another on much. Campaign speeches don't provide much guidance either, as judicial candidates are precluded from signaling how they might rule on any given issue. And once on the bench, judges are supposed to make decisions based on the facts and the law. 

This requirement for judiciousness, however, hasn't stopped pundits from focusing on the high court's partisan balance, the remap and Kilbride's election. And that's because these justices will very likely rule on the most important political issue of the year. The court will only get involved in redistricting if it's asked to get involved, but it's widely expected that whatever map is approved will be challenged and end up with the court. 

The partisan balance on the court doesn't guarantee a map favorable to the Democrats, though. Ten years ago, one of the high court's four Democrats voted with the court's three GOP members to approve a map that was thought to favor Republicans. Nevertheless, some observers contend the additional Democrat on the court will ensure that won't happen again. They also believe the remap turned the contest for Heiple's seat into an unprecedented battle among the state's legislative leaders. GOP leaders, including Senate President James "Pate" Philip and U.S. House Speaker J. Dennis Hastert, directed more than $250,000 to Hawkinson's campaign, and the Illinois Democratic Party, chaired by Illinois House Speaker Michael Madigan, pumped more than $600,000 into Kilbride's committee. Huge spending on campaigns for the state Supreme Court wasn't all that unusual last year, but the Kilbride-Hawkinson race was the only high court race in which the leaders were so intensely and directly involved. For his part, Kilbride says he can't speculate on which way he will decide on any case. He also says the contributions his campaign received from the Illinois Democratic Party won't influence his decision-making and that he doesn't feel any pressure to repay the favor from the bench: "Nobody bought me."

Some legal experts say that, in any case, the remap may well end up in federal court and that the Illinois Supreme Court's expected role in redistricting has been exaggerated. One thing's for sure: With or without the remap, the justices have their work cut out for them. 

Aaron Chambers is a Statehouse reporter for the Chicago Daily Law Bulletin. His most recent article for Illinois Issues, "How high the bar?," appeared in October.

 

THE VETERANS

Three justices are continuing their terms on the Illinois Supreme Court. 

- Chief Justice Moses Harrison II, who presides over the Mt.Vernon-based 5th District, is in the second year of his three-year term as chief. The Democrat believes the Illinois death penalty is unconstitutional because an innocent person could be executed. Harrison was first elected to the high court in 1992 and has two years left on his current term.

- Justice Charles Freeman, one of the Illinois Supreme Court's three members from Cook County, is the first African American to serve on the court. The Democrat was chief justice from 1997 to 1999, during which time the court launched a judicial mentoring program. He was dogged last year by negative publicity over interim appointments he made to the Cook County bench. Freeman was first elected to the high court in 1990. He won retention in November and is now the senior member of the court.

- Justice Mary Ann McMorrow, the first woman to serve on the court, also holds a Cook County seat. The Democrat is chair of the Illinois Courts Commission, which tries disciplinary complaints filed against judges. McMorrow was first elected to the high court in 1992. She must decide whether to run for retention in 2002. 

Justice Benjamin Miller, formerly the high court's most senior member, stepped down January 29. Miller presided over the Springfield-based 4th District. The Republican served as chief from 1991 to 1994, when the court laid the groundwork for a far-reaching judicial education program. He was first elected to the high court in 1984, and his term was up for retention in 2004.

Illinois Supreme Court justices are elected to 10-year terms, after which they can run for retention. 

Aaron Chambers

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