PENSION APPEAL: Recused
Justice?
“Our founders
designed courts to be distinct from the other two branches of government. In
order to govern, state executives and legislators must woo popular majorities
and play the game of politics, Judges are assigned a different job: to protect
our rights, and to decide cases fairly and one at a time, based on the law and
the Constitution, not political pressure.
An independent judiciary is one of the crown jewels of our system of
government.” -Chief Justice William
Rehnquist
Nearly a decade ago, Supreme Court Justice Alito
belligerently shook his head as President Barack Obama unexpectedly and
publicly scolded the highest Federal Court for its recent decision regarding
Citizens United.
The President had seen similar disquieting trends in his
own native state of Illinois some years before.
Since then, the outside influences on judicial campaigns in Illinois
that a young state Senator Barack Obama characterized as “unseemly” have evolved
to flagrantly repulsive in the decade since he tried unsuccessfully to move a
bill to reform the judicial election process.
He had not counted on Speaker Madigan’s power to block it.
In fact, the current Justices on the Illinois Supreme Court
remain in office and seated for ten years through a partisan elective process
that bears the manipulation of significant political and monetary influence of
various groups and individuals – all vying for some type of consideration by
the Court if and when they so need it.
For those of us with public pensions, quite soon these
wealthy or self-serving strategic benefactors have much to gain (or lose) in
the upcoming appeal by Lisa Madigan (Speaker Madigan’s daughter) regarding the
November 27th ruling by Judge Belz that SB1 (PA98-0599) – the
pension theft bill – is unconstitutional.
You might remember that Speaker Madigan once boasted in
December of last year that he felt secure after his passage of SB1 that at
least four of the Justices in the Illinois Supreme Court would find SB1
constitutional. Like most of Madigan’s
observations, his announcement was cryptic but also illuminating.
Following Supreme Court regulation, even if one or two
Justices were to recuse themselves from hearing the pension appeal due to
possible conflicts of interest, it would still require the agreement of four
Justices to affirm or deny. It would not
be a majority of the remaining.
Furthermore, money from the Madigan controlled Democratic
Party of Illinois fund has heavily supported at least four of the seven current
Justices in their bids to attain seats or for retention in the Illinois Supreme
Court. Justices increasingly need
financial backing from parties and groups to secure judicial seats or retention
in Illinois.
Sadly, the partisan elective process, which becomes
addictive to monetary donation(s), now occurs in Illinois and happens in other
states as well. Since Obama has left his
home state and since the ruling of Citizens United, the result has been an
exponential delivery of exorbitant amounts of money to potential state Supreme
Court Justices during their candidacies in judicial elections. Political PAC’s and “dark money” have sought
and found new recipients, and they are no longer the least influenced branches
of government.
One political lobbyist put the entire plan on the
multi-state level quite simply: “We figured out a long time ago that it’s
easier to elect seven judges than to elect 132 legislators.” In other words, if you build it, they will
come; but if you build possible influence, they will buy it.
And, in Illinois, if money comes to an aspiring Justice with
strings attached, the strings web out in all directions to all political
persuasions, especially in the Pension Theft appeal: right wing PAC groups, labor unions,
educational groups, attorney groups, big business, etc.
Please excuse a Christmas metaphor, but in Illinois each of
our current Justices carry the ponderous weight of possible appearance of
monetary influence approaching the upcoming Pension Theft appeal like Dickens’
Marley struggling with the lumbering chains of past political
indiscretions.
In fact, connecting the political and accompanying monetary
dots in Illinois politics is quite enough to drive anyone to distraction – or
more likely cynicism. For example, many
will call for Justice Ann Burke to recuse herself in the upcoming pension theft
appeal. After all, Justice Burke has
already declared her position regarding the question of pension benefits in her
dissenting point of view in Kanerva v. Weems.
While the decision (6-1) found that the addition of health care was a
benefit that could not be diminished or impaired, Justice Burke argued that
such a decision was crafted out of “whole cloth,” and only what was promised
(salary, etc.) at the time of employment would be protected by Article XIII,
Section 5 of the Illinois Constitution.
Moreover, Justice Burke raised over $1.8 million in her 2008
campaign to ward off a possible challenger.
According to Follow The Money, groups in support of the current Pension
Theft Bill, like the Prtizkers and other business-minded leaders, supplied
nearly $1 million in her support. On the
other hand, labor unions also provided another $55,000. Candidate Committees, like Madigan’s
Democratic Party of Illinois, also provided a tidy sum.
Augmenting this cradle of strings, Justice Burke’s husband,
Alderman Edmund Burke is a consistent contributor to the architect “put on
earth” to pass Pension “Reform” – ex-Governor Patrick Quinn. After loaning Quinn over $200,000 and supplying
the candidate Quinn with another $50,000, the Burkes’ daughter Jennifer was appointed
by Quinn to serve in a $117,000 position on the Illinois Pollution Control
Board in 2011. (http://articles.chicagotribune.com/2011-07-27/news/chi-quinn-appoints-burkes-daughter-to-117000ayear-post-20110727_1_quinn-spokeswoman-annie-thompson-pat-quinn-ed-burke).
Unfortunately, in the political realm of Illinois, Justice
Burke remains no more indebted to conflicting and influential backers than most
if not all of the other Illinois Justices.
In just this last election cycle, voters witnessed an expensive
battle in the fifth district race for the retention of Illinois Supreme Court
Justice Lloyd Karmeier. In a combat tailored
in the microcosmic result of a Citizen United decision, powerful factions of
attorney groups faced off with even larger groups of “dark money” supplied by
groups like the Chamber of Commerce to retain the Justice. The amount of money fueling this specific
race for judicial retention reached unheard of highs - nearly $2 million – after
receiving nearly $4 million in pro business interests earlier
(Judgepedia.org). In fact, according to
Politico.com, “during 1990’s, costs for Supreme Court races hovered between $20
million and $30 million per election; now, it’s routine for the annual haul to
exceed $55 million” (http://www.politico.com/magazine/story/2014/09/elected-judges-110397.html
- .VJUQT50EAA).
Influence? In
Karmeier’s election for retention, organized trial lawyer groups were doggedly fighting
to defeat a judge who had overpowered them in 2004 by taking untold donations
from Philip Morris through various front groups and PACs like the Chamber of Commerce, and then refused to recuse himself during later appeals to
the highest court in an earlier suit against the cigarette manufacturers claim
of “lite” as “harmless.” The Illinois
Supreme Court – and Lloyd Karmeier – overturned the earlier decision and found
in favor of the cigarette manufacturer.
Robert Clifford of Clifford Law Offices was part of the
trial lawyers’ consortium to defeat Karmeier’s retention. He expressed his concerns in a recent Tribune
editorial regarding the influences of big business in Illinois judicial retentions and
elections he has historically witnessed.
“I readily joined this battle because consumers’ rights are in jeopardy
every time Karmeier votes on an issue that could affect the interests of those
who helped to elect him…Insurance companies and large corporations have
funneled money through organizations such as the U.S Chamber of Commerce so
that specific identities of the donors remain anonymous. Voters can’t find out who funneled money to
the organizations for those purposes” (http://www.chicagotribune.com/news/opinion/commentary/ct-dark-money-judicial-elections-perspec-1211-20141210-story.html
).
Although caught between the various influences and
political/monetary pressures of those powerful entities who support or discourage
pension benefits, some Illinois Supreme Court Justices assert they’re
ideologically untouchable. The current
Chief Justice of the Illinois Supreme Court Rita Garman expressed her own
disbelief in the power of group(s) or PAC donations to influence legal decisions
in a Chicago Lawyer article heralding
her as “Person of the Year” in 2013.
Commenting positively on a more meritorious method for
judicial selection over an unsavory elective process inundated in cash, Justice
Garman nevertheless felt that the independence of the judicial branch in
Illinois was still functional and neutral.
“I think politics plays no role in any of the issues we have before
us…If a legislative challenge goes up or down, (it’s) based upon whether it
meets the standards of our constitution.
And I think our court will analyze it that way. I know that time to time
there is speculation about the party split on the court. That is not an issue with the court” ( .http://www.chicagolawyermagazine.com/Archives/2013/12/Person-of-the-Year-Rita-Garman.aspx”).
Of course, the particulars of the appealed bill PA 98-0599
remain wholly opposed to Justice
Garman’s more erudite imagination of immunity from political pressure or
distance from big business. The removal
of the Judicial Retirement System (JRS) from the proceedings in the bill and
its later passage as PA98-0599 appears intentionally and strategically designed to influence the
Justices by avoiding any immediate or direct consequences for those who would
deliberate. If
included, the Justices' awareness of their retirement program's less-than-30% funding as well their initial salaries of over $200,000 would probably weigh as heavily in the decision as their future backing by untold parties.
As one might expect, Speaker Madigan, who predicts a 4-3 win
for his daughter’s "sovereign powers argument," spins all of this quite
differently. “The intent was to
eliminate the possibility of judicial conflict during the adjudication of this
matter through the court system…”
Senator Bill Brady identified a simple contradiction in the
Speaker’s argument: "If it’s a conflict for the judges to be in the pension
bill, then it’s a conflict they’re taking money from the groups they’re making
rulings about” (http://www.suntimes.com/news/metro/24614346-418/story.html).
In other states, or at least 30 of them, voters have adopted
merit selection to pick judges at various levels. In most cases, non-partisan screening
commissions conduct interviews, review deliberation records, and recommend
qualified finalists to the state governor, who then makes an appointment. Retentions are often dealt with by simple
majority elections.
Unfortunately, in at least 21 other states like Illinois,
judges are elected in the same political process as we’ve come to expect for
our federal congress people after Citizens United or McCutcheon v. Federal Election
Commission.
Despite Chief Justice Garman’s proffering of independence, a
retired Supreme Court Justice from West Virginia (also an elective judiciary)
stated: “It’s pretty hard in big money races not to take care of your
friends…It’s very hard not to dance with the one who brung you” (http://www.politico.com/magazine/story/2014/09/elected-judges-110397.html).
How deeply Speaker Madigan resides in the darkness of
Illinois’ Justices robes is hard to say; however, he certainly will not be
alone. Pension supporters like AFCSME
and WeAreOne will be there, as will Sidley Austin, the Civic Committee and Winston-Strawn. We might even catch the shadows of twin brothers
with an oily nature to them.
And the Justices?
Caught between many voices and even more money from self-interested
backers, we can perhaps only hope they'll be controlled and guided the deep ruts of earlier (and recent) Constitutional decisions to guide them as they hear Lisa’s appeal – an attempt to break contractual
promises made by the state because the state has the power to do so?
There will be no recusing by any of the Justices, for in the
political circus called Illinois none are untouched.
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