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High Court, High Cost: It's Time Illinois Changes the Way Justices Take the Bench, Critics Say

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Illinois Supreme Court Chief Justice Thomas Kilbride could breathe a sigh of relief last November when he earned a 66 percent retention vote in his Third Judicial District, after detractors had tried to remove him during an unusual and expensive election in which he faced no opponent. It was a different story for three of Kilbride’s high court colleagues in neighboring Iowa: Voters dumped them after being inundated with provocative anti-retention messages.

All of the top judges had been targeted for ouster under a trend that sees outside groups spending increased sums of money in hopes of influencing voters who normally are apathetic to judicial contests. Some of the attack money in 2010 came from national organizations with axes to grind in the Midwest. Kilbride, a Rock Island Democrat, was beset by special interests largely for his role in overturning an Illinois law that capped medical malpractice awards. In Iowa, social conservatives sought payback for the high court’s legalization of gay marriage.

Good-government advocates in Illinois say the new era is dangerous to the judiciary and a threat to the public’s already shaky faith in it. They hope the latest high-profile skirmishes will persuade state lawmakers here to reconsider legislative or constitutional remedies, though they concede no alternative may be foolproof. Previously discussed ideas include the public financing of judicial elections or the merit selection of high court judges, which is done in 24 states.

“The elections are going to get more and more expensive and nastier,” says Dawn Clark Netsch, a former Illinois comptroller and state senator who is a director of the American Judicature Society. “People don’t believe they can trust their judges, their impartiality, their fairness, their lack of bias. This is just a disaster for our whole system in this country because the independence of the judiciary is almost totally dependent on the acceptance of the fact that they are to be trusted.” 

Even Ed Murnane, who coordinated the controversial attacks on Kilbride, agrees a change may be warranted. But he also contends that candidates who seek the bench should be subject to voter scrutiny. 

“A judge has the authority to sentence someone to death in Illinois. A judge has the authority to take a child away from his parents,” says Murnane, head of the Arlington Heights-based Illinois Civil Justice League and its campaign-finance arm, JUSTPAC. “Judges have more authority than any legislator has, and they have the opportunity to do this single-handedly.”

Nationally, spending on state supreme court races more than doubled between 1999 and 2009, compared with the previous decade, to $206.9 million from $83.3 million, according to a Justice at Stake Campaign study released over the summer. Deep-pocketed special interest groups, from trial lawyers to insurance companies to unions, dominated the pool of contributions, the watchdog coalition reported. The cash infusions were increasingly used on expensive broadcast advertising. 

In 2004, the Illinois Supreme Court contest between Republican Lloyd Karmeier and Democrat Gordon Maag set a record $9.3 million for spending in a U.S. judicial race. Their Fifth District battle was centered in Madison County, long reputed to be a mecca of huge jury awards. Tort reform became the dominant issue, and Karmeier, whose campaign was backed by the state GOP and proponents of caps on “pain and suffering” awards, prevailed. Unions, plaintiffs’ attorneys and the Illinois Democratic Party were on the losing side. 

“I think there’s a lot of concern among elected officials about the way these races have escalated,” says Cynthia Canary, executive director of the Illinois Campaign for Political Reform. “The parties have to be looking at this and saying, ‘We’ve got to call a truce on this arms race somewhere.’” 

Last fall, JUSTPAC and its national allies targeted Kilbride after he voted with a 4-2 majority in early 2010 to overturn statutory caps on jury awards. The high court’s Democrats ruled that lawmakers had exceeded their authority under the separation of powers. Had Kilbride failed to get at least 60 percent of a favorable retention vote — normally a slam dunk for a sitting justice — the stage would have been set for a partisan, contested election. That, in turn, could have tipped the Supreme Court’s balance to the GOP.

Two other justices, Republican Robert Thomas and Democrat Charles Freeman, each received roughly 80 percent of voter approval after their own quiet retention campaigns. In contrast, Kilbride was dogged by ads that questioned his competence in criminal case rulings. In JUSTPAC’s visceral broadcast commercials, actors portraying convicted murderers and rapists told voters that Kilbride was their ally. 

Prosecutors and police officials defended the judge in rebuttal ads, and the originals were deemed so egregious that they prompted a rare rebuke from an Illinois State Bar Association panel that reviews fairness complaints in appellate and Supreme Court races. Robert Cummins, chairman of the ISBA’s Tone and Conduct Committee, says the anti-Kilbride spots were “not only false but were crafted to be misleading.” 

Canary, the government-reform advocate, says the JUSTPAC ads did not accurately reflect the role of a review judge. Moreover, she says, there was a “total disconnect” between the crime theme of the ads and the civil law issues — particularly tort reform and product liability — that truly interested Kilbride’s detractors.

Murnane disagrees. He says the Illinois Civil Justice League analyzed Kilbride’s record on criminal cases and determined he often ruled against “the people,” or the law enforcement professionals who bring cases on the public’s behalf. Murnane, who did not provide case examples, acknowledges crime was the most potent topic to take to the electorate. 

“We were trying to remove him,” he says. “You have to go for the message that’s going to resonate with voters, and that’s what we tried to do.”

The Kilbride election, which generated more than $3 million in spending, ranks as the second most expensive retention election in the nation, says Charles Hall, a spokesman for the Justice at Stake Campaign.

JUSTPAC’s contributors in the second half of 2010 included the U.S. Chamber of Commerce, which donated $150,000, and the American Justice Partnership (AJP), which gave $180,000, according to the latest state campaign-disclosure filings. The Washington, D.C.-based AJP says its mission is to offset the influence of “the trial bar, unions and other liberal opponents of free enterprise” by partnering with like-minded organizations at the state level.

In the end, pro-Kilbride forces easily outspent JUSTPAC. And while observers say Kilbride had a right to fight back, they worry that the sheer volume of money contributed on his behalf raises questions about what donors may expect in return.

The Kilbride campaign’s major financial supporter was the Illinois Democratic Party, which has a vested interest in the next legislative remap and its expected court challenges. The political organization transferred nearly $1.5 million to the Kilbride campaign between July 1 and December 31, 2010. The Illinois Federation of Teachers donated $450,000 toward Kilbride’s retention. IFT spokesman Dave Comerford says the union has long supported Kilbride for his education advocacy and anticipates that the high court may consider “a number of issues that are important to working families.”

Kilbride declined an invitation to be interviewed but released a written statement to Illinois Issues expressing frustration over his recent experience. 

“I hope no one else would have to go through the kind of campaign I just finished. It damages the judiciary by undermining its independence and questioning the fairness and impartiality of judges in their decision-making. As judges, we wear a black robe, not a red or a blue one,” Kilbride said. 

He indicated support for studying alternatives to Illinois’ current method of electing judges, but he warned there are no easy solutions.

Karmeier, his colleague who was involved in the expensive two-way race in 2004, echoed that sentiment in his own statement to Illinois Issues.

“Each approach has its proponents, and the debate can often be contentious,” Karmeier said. “Any calm, reason and experience that can be brought to the discussion is, therefore, particularly welcome.”

Reform proponents agree.

Illinois is one of only nine states that elect supreme court judges. Supporters of merit selection, which is already used to tap the state’s associate judges at the circuit level, say it would diminish the role of special-interest money and would free judges from the burden of having to raise campaign money, at least initially. As success stories, proponents cite the examples of Missouri and Delaware, where screening panels present a short list of judicial candidates to the governors. Judges typically stand for subsequent retention in merit- selection states.

The major hurdle in Illinois, of course, would be persuading lawmakers — and ultimately voters — to amend the state Constitution. That kind of ballot initiative failed in Nevada in November, presumably because residents there were leery of turning over their judge-making powers to a relative few. A common refrain among the skeptics of merit selection is: Who’s picking the pickers?

“Polls show that very few voters know much at all about supreme court justices. They often complain of feeling uninformed, and yet giving up the vote is inherently an emotional decision,” says Hall of the Justice at Stake Campaign. “In recent years, it’s been a more populist time in our nation’s history. In populist periods, people want to vote.”

Not everyone favors such a radical change here. The Illinois State Bar Association has supported keeping voters in charge of electing state Supreme Court judges. But the ISBA has recommended shifting appellate and district court judges to a merit selection system that would be administered by the Supreme Court, spokesman David Anderson says.

Observers say the reform proposals with the most realistic chances of gaining traction in Illinois are those that could be imposed through statute, such as transforming judicial elections into nonpartisan contests. In theory, that would diminish the influence of politics and money. But even the League of Women Voters of Illinois questions whether it’s possible to completely erase party influence in this state, issues coordinator Mary Schaafsma says. 

The organization is more vigorously pushing the idea of public financing in judicial elections, given the recent costs of Supreme Court contests in Illinois. Only four states have adopted a public financing model, but North Carolina has received favorable attention for the system it implemented in 2002. Under a program financed through legal license fees and a state income-tax checkoff, appellate and Supreme Court hopefuls can tap into a pool of public campaign money if they raise enough qualifying funds through small donations. Candidates in the nonpartisan elections must observe spending limits but can receive additional support if a privately financed opponent spends more money. 

Netsch, the former state legislator and constitutional officer, says a public-finance program could succeed here. But she notes it would not stop the type of independent expenditure that created a stir in Justice Kilbride’s retention election last fall. The U.S. Supreme Court recently strengthened the federal protections for independent campaign spending.

That’s no small point for some. The specter of a future barrage of commercials by a JUSTPAC or other group threatens to dampen any discussion about revamping judicial elections, says Steve Brown, spokesman for Illinois House Speaker Michael Madigan, the Chicago Democrat who also controls the state party.

“All of the limitations and different ideas sound good until you say, ‘What happens when a decent candidate is subject to attack?’ That argues against major change in the guise of reform,” Brown says. He adds: “Is Michael Madigan open to discussion? Sure.”

Maybe everybody has finally had enough. Murnane says he plans to reach out to state lawmakers this year to revive a concept he introduced in 2008: sort of a mix of merit selection and nonpartisan elections. 

Under his plan, an eight-member bipartisan commission appointed by legislative leaders would screen Supreme Court candidates for nonpartisan elections. Each judicial district would have a panel composed equally of lawyers and nonlawyers, and it would take six of eight votes — and bipartisan cooperation — to green light a candidacy. Nonapproved judicial candidates could get on the ballot through nominating petitions, but their names wouldn’t have the commission’s endorsement on the ballot, Murnane suggests.

“We will continue to elect judges, but let’s elect judges that have a little bit better track record or a little bit better evaluation,” he says. “I think there’s an appetite for change. I’m not sure there’s an appetite for this kind of a change just yet.”

Cummins, the ISBA representative who assailed the anti-Kilbride ads, says he’s intrigued by the concept. 

“It would be interesting to see if Murnane and his group would be willing to talk with others. I’ve got to believe he’d find some seriously positive response, at least among the Bar leaders. It’d be a great first step.” 

Mike Ramsey is a?Chicago-based free-lance writer.

Illinois Issues, March 2011

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