The Journal of The DuPage County Bar Association

Back Issues > Vol. 24 (2011-12)

The Importance of an Independent Judiciary: An Essay on Judicial Selection in Illinois
by Sean McCumber[1]

When the founding fathers began the arduous task of creating a government for this nation, arguments and discussions and debates ensued about the who, the what, the how, the why, and the where.  It was decided that the powers of the government would be divided into three separate branches, the legislative, the executive, and the judicial.  It was decided that no one branch would have greater power than the other two branches.  Alexander Hamilton opined that the Judicial Branch might possibly be the weakest of the three branches, noting that it had neither the power of the sword, like the Executive Branch, nor the power of the purse, like the Legislative Branch.[2] However, in reality, the Judicial Branch may be the most important branch to the people; the reason why stems from what the judiciary is called to do.  

The Judicial Branch is the one branch of government that every citizen likely has some contact with, be it serving on a jury, or dealing with traffic or minor infractions, or going through personal litigation, such as divorces, estates, and other civil disputes.  The Judicial Branch is bastion of liberty for the people from the abuses or encroachments of government.   To understand that statement, one need only turn to such landmark decisions as Brown v. Board of Education,[3] Miranda v. Arizona,[4] Griswold v. Connecticut,[5] and Tinker v. Des Moines Independent Community School District.[6]  In each of these cases, as well as countless other federal and state court decisions, the Supreme Court of the United States protected the fundamental rights of the people from abuses of police power, from restrictions on marital privacy, from restrictions on speech, and even from its own past decisions that formed the basis for legislative segregation.

However, just as people likely have more regular contact with the Judicial Branch, how the judges, who hear their cases, protect their rights, and resolve their disputes, are selected remains part mystery and part misunderstanding.  The Illinois Code of Judicial Conduct addresses this concern of judicial independence in Canon 1:  “An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should personally observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved.  The provisions of this Code should be construed and applied to further that objective.”[7]  Yet this rule speaks only to how a judge should conduct himself or herself, not how those judges are selected, nor how that selection process promotes judicial independence. 

Judicial Selection.  Across the 50 states, there are four primary methods of judicial selection: 1) appointment selection; 2) partisan elections; 3) nonpartisan elections; and 4) merit selection.  Currently, four states (South Carolina, Missouri, New Jersey, and Virginia) use an appointment system for selection of judges, from trial court to state supreme court.[8]   When judges are selected by appointment, either the governor, or sometimes the state legislature, appoints a judge to the bench.   Sometimes these appointments are made after receiving input from a committee of reviewing members; sometimes the appointment is made when a list of the governor’s choices are selected by the reviewing committee.[9]  In some circumstances, the appointments must be approved by the state legislatures and may be made directly by the state legislatures.[10]

In approximately 32 states, including Illinois, trial (or circuit/district) judges are selected by popular election contests, either partisan or non-partisan.[11]  In a partisan election judicial selection system, judges run in contested party primaries and contested general elections.  In other words, voters first nominate candidates for the judiciary under one political party whom the voter affiliates with.  In the general election, the opposing candidates run against each other for the judgeship in which the candidates are aligned with the political party that nominated them and voters select from among these remaining candidates.  In a nonpartisan election, judicial candidates run initially on the general election ballot, unaffiliated with any party. Thus, they are not exposed to a party primary election and are not assigned implicit bias according to the party affiliation with which they choose to align.

The remaining states use a merit selection process to place judges on the bench.[12]  The merit selection plan, also known as the Missouri Plan, began in 1940 as a response to the question of qualified judges serving on the bench.[13]  This plan involves a special commission that reviews applicants for the bench, who are then rated and sent to the governor for selection; the selected judge must then run for retention in the general election one year later.[14]

Proponents for merit selection plans are typically in favor of stronger campaign finance laws or disclosure laws. Opponents of merit selection state that the system is less democratic than an elective based system wherein the voice of the people is the strongest.  As a result of differing options, the selection, appointment, or election, of judges is a perennial political firestorm among politicians, lawyers, judges, and members of the public.[15]

Judicial Selection in Illinois.  The climate in Illinois is no different, especially after judicial candidates in Illinois raised over $1.15 million for their campaigns.[16]  In Illinois, the public elects Circuit, Appellate, and Supreme Court judges in a partisan process.  Supreme Court and Appellate Court Judges are elected for ten-year terms, while Circuit Judges are elected for six-year terms.[17]   There are currently 23 Circuits in the Illinois Court System.[18]  In the circuit courts, Associate Judges are selected and appointed by the circuit judges of that circuit.[19]  Associate Judges never face the voters.  Vacancies in the Supreme and Appellate Courts are not filled by the governor, but again by appointment by the Illinois Supreme Court.  Those appointed candidates must face the voters in a partisan election in the next general election cycle after appointment in order to remain in office.[20]  Illinois, while primarily operating under the partisan election method of judicial selection, maintains a public control of the judiciary: voters select the judges; associate judges and vacant elected judicial offices are filled by appointment by the Illinois Supreme Court; and retention elections are held for elected judges and judges appointed to fill vacancies.

Judicial Campaigns and Influence.   With that background in mind, the question becomes, “whom to vote for?” or “why are judges elected anyways?” or “where is the information about these candidates?”  During a campaign, candidates for judicial office will do many of the things associated with other candidates seeking political office. They will likely do most if not all of the following: appoint a treasurer and campaign committee; raise and spend money; file the required D-2 forms;[21]  issue and distribute campaign literature; host fundraisers and meet-n-greets; display signage in every conceivable location; get to know the electorate in a public events; and disseminate candidate information by email, mail, or even Facebook.  All of this costs money, and money sometimes calls influence and impartiality into the election process.  Another often-cited evil of elections – campaign contributions was the subject of a recent United States Supreme Court case.   As noted previously, in 2008, Illinois judicial candidates raised over $1.15 million for their campaigns, with money coming from lawyers, businesses, and yes, even members of the public, some with more money than others.  

While the case involved recusal of a judge who received substantial campaign contributions, Caperton v. Massey Coal Company, Inc.[22] raises the specter of what money means to the issue of judicial independence.  In Caperton, there was a dispute between two companies in West Virgina, Harman Mining Company and A.T. Massey Coal Company.  The trial court found in favor of Harman Mining Company (its President was Hugh Caperton) and awarded $50 million in damages.   While the case was mired in the appellate court, West Virginia Supreme Court Justice Warren McGraw faced a contested election against lawyer Brent Benjamin.  One of the executives for Massey Coal created a non-profit corporation that contributed approximately $3 million to Benjamin’s judicial campaign.   Benjamin won the election before the trial court verdict came to the West Virgina Supreme Court on appeal.   Despite a request for recusal, Benjamin refused to recuse himself, and was part of the majority decision that overturned the $50 million dollar verdict.[23]  In vacating the discussion of the West Virginia Supreme Court, Justice Anthony Kennedy, writing for the majority, held that Justice Benjamin’s failure to recuse himself brought the due process provisions of the 14th Amendment to an unconstitutional level.[24]

Free Speech in Judicial Campaigns.  Campaigns also bring issues to the forefront.   People often want to know where candidates stand on particular issues.  Judicial candidates find themselves in a unique position because they are seeking an office where impartiality one of the fundamental tenets of the office.   The Illinois Code of Judicial Conduct states that a judicial candidate may not make statements that commit or appear to commit the candidate with respect to cases, controversies or issues within cases that are likely to come before the court.[25]  Opponents, the media, or the public may take offense or become confused when a judicial candidate declines to offer a position, or instead of personal position, simply reiterates the state of the law.  In Republican Party of Minnesota vs. White, the Court held that Minnesota’s announce clause, which prohibited judicial candidates from discussing issues that may come before them, was an unconstitutional restriction on the First Amendment.[26]  Justice Antonin Scalia stated, “We think it plain that the announce clause is not narrowly tailored to serve impartiality (or the appearance of impartiality) in this sense. Indeed, the clause is barely tailored to serve that interest at all, inasmuch as it does not restrict speech for or against particular parties, but rather speech for or against particular issues.”[27]

Electoral Impact on Judicial Independence.  But can elections affect the impartiality and independence of the judiciary in other ways?  In Varnum v. Brien, the Iowa Supreme Court found that the Court’s “responsibility, however, is to protect constitutional rights of individuals from legislative enactments that have denied those rights, even when the rights have not yet been broadly accepted, were at one time unimagined, or challenge a deeply ingrained practice or law viewed to be impervious to the passage of time.”[28]  The Court overturned Iowa’s marriage laws on the grounds that it violated the Iowa Constitution’s provision of equal protection of the law.[29]  An extensive political campaign ensued to oust three of the Iowa Supreme Court Justices in the retention election the following year.   Iowa Supreme Court Justices are selected pursuant to a merit selection program, and then must run for retention.[30]  All three justices were not retained after the massive publicity campaign.[31]  Just as there is fear that campaigning and fundraising may affect the independence of judges, there is equal fear that reprisals for unpopular decisions may affect the independence of judges. 

Vetting the Candidates.  Additionally, lawyers in Illinois have a hand in judicial information dissemination.  Candidates for associate judge are often vetted by local bar associations in a process that involves an investigation by a select committee of lawyers.  In DuPage County, the bar association’s Judiciary Committee receives the candidate’s application, contacts references, and interviews the candidates.   The committee then issues a recommendation as to whether the candidate is highly recommended, recommended, or not presently recommended.   Candidates for judicial election often endure the same scrutiny.[32]  While it might be said that these evaluations do not matter, many members of the public seriously consider what lawyers say about judges before they cast their ballot in a judicial election.

Checks on Judiciary. In light of the concerns of money and opinions raised above, judicial selection in Illinois still has many checks and balances on the judiciary: 1) the retention process; and 2) the Judicial Inquiry Board and the Courts Commission.  Retention is the opportunity for voters to determine whether a previously elected judge should remain in office for another term.   The simple yes or no vote determines whether a judge will serve for another term.   The inquiry is whether this judge has done his or her job, being a fair, impartial, and expedient dispenser of justice.  It is an evaluation of the candidate’s record and duties by the public, to whom all branches of government answer.  A judge seeking retention in Illinois must receive 60% yes votes of the votes cast in the retention ballot to be retained in office.[33]  

While in office, whether or not in a retention election, all judges, of all levels of the judiciary are also monitored by the Judicial Inquiry Board, (“JIB”), a constitutional board that handles complaints about any judge in the State.[34]  The JIB consists of two Circuit Judges selected by the Illinois Supreme Court and seven members (four non-lawyers and three lawyers) appointed by the governor.[35]  If after investigation, the JIB finds that further action is warranted, the JIB will file a public complaint against the judge in question with the Courts Commission.   The Courts Commission consists of one Supreme Court Justice, two Appellate Court Justices, and two Circuit Court Judges (and three alternates, selected by the Supreme Court, as well as two citizens (and two alternates) appointed by the governor.[36]  The Courts Commissions hears complaints filed by the JIB publicly.  After hearing, the Courts Commission is authorized to remove from office, suspend without pay, censure or reprimand a judge for willful misconduct in office, persistent failure to perform his or her duties, or other conduct that is prejudicial to the administration of justice or that brings the judicial office into disrepute; or to suspend, with or without pay, or retire a judge who is physically or mentally unable to perform his or her duties.[37]  This check on the judiciary is very crucial, as it serves as a constant in the judicial independence process, never having to wait for an election, nor a retention, to maintain the integrity of Illinois courts.

Conclusion.  Whether judges should be part of the political process and whether they should be elected in a partisan process is a question that will persist ad infinitum.  The judiciary safeguards the people from abuses of government, and guarantees that order and rule of law endure.  However, this branch, like the others, must be watched to ensure that it neither overpowers the other branches, nor the people.  Regardless of the debate in Illinois, the system does maintain the founding principles of our country – that our government was created by the people, for the people, and to answer to the people.

[1] The author would like to thank Justice Ann Jorgensen, Presiding Justice of the Illinois Appellate Court for the Second District, for her invaluable assistance in reviewing, revising, and preparing this article.

[2]The Federalist No. 78 (Alexander Hamilton) (The Judiciary Department).

[3]347 U.S. 483 (1954).

[4] 384 U.S. 436 (1966).

[5] 381 U.S. 479 (1965).

[6] 393 U.S. 503 (1969).

[7] Ill. Sup. Ct. R. 61 (West 2012); see also American Bar Association Model Code of Judicial Conduct, R. 1.1 & 1.2 (2007).

[8] California uses the appointment system for appellate and supreme court judges.  Only Virginia uses the appointment system for renewal terms for judges, as well.

[9] Ware, Stephen J.  “The Missouri Plan in National Perspective.” 74 Missouri L. Rev 751, 753 (2009). 

[10] Id. at 754.

[11] Id. at 756. 

[12] Id. at 758.

[13] Id. at 759.

[14] Id.

[15] Schouten, Fredericka, “States Act to Revise Judicial Selection,” USA Today, March 31, 2010.

[16] Id.

[17] Ill. Const. Art VI, Sec. 10  & Sec. 12 (1970).

[18] However, effective January 1, 2013, there will be 24 Circuits, when the Sixteenth Judicial Circuit is divided.   Kane County will comprise the new Sixteenth Judicial Circuit and DeKalb & Kendall Counties will comprise the newly created Twenty-Third Judicial Circuit.

[19] Ill. Const. Art VI, Sec. 8 (1970); see also Ill. Sup. Ct. R. 39(b) (West 2012).

[20] Ill. Const. Art VI, Sec. 12 (1970)

[21] The D-2 form is the campaign contribution and expenditure disclosure form required by each candidate to file at the inception of the campaign, and at specified intervals during an election period.  See Illinois State Board of Elections, http://www.elections.il.gov/DocDisplay.aspx?Doc=Downloads/CampaignDisclosure/PDF/D2.pdf, accessed March 11, 2012.

[22] 556 U.S. ____ (2009).

[23] Each side sought recusals, and another judge recused himself on rehearing after vacationing with the same executive that funded Benjamin’s campaign.  At rehearing, the West Virginia Supreme Court affirmed its decision (and Justice Benjamin did not recuse himself at rehearing).

[24] 556 U.S. ____, at *15.  (And the risk that Blankenship’s influence engendered actual bias is sufficiently substantial that it “must be forbidden if the guarantee of due process is tobe adequately implemented.”)

[25] Ill. Sup. Ct. R. 67(A)(3)(d)(ii) (West 2012).

[26] 536 U.S. 765, 122 S. Ct. 2528 (2002).

[27] Id. at 774.

[28] 763 N.W.2d 862, 876 (Iowa 2009).

[29] Id. at 906.

[30] Iowa Const., Art. V, Sec. 16 & Sec. 17 (1857, as amended 1962).

[31] It should be noted that while Iowa permits judges up for retention to speak about their candidacy (Rule 51:4.2), none of the three justices spoke against their detractors.

[32] Some of the bar associations that conduct judicial evaluations, to name a few, include: the Illinois State Bar Association, the Chicago Bar Association, the DuPage County Bar Association, the Champaign County Bar Association, the Hellenic Bar Association, the Women’s Bar Association of Illinois, and the Puerto Rican Bar Association of Illinois.

[33] Ill. Const. Art VI, Sec. 12(d) (1970).

[34] Ill. Const. Art VI, Sec. 15 (1970).

[35] Ill. Const. Art VI, Sec. 15(b) (1970).

[36] Ill. Const. Art VI, Sec. 15 (e) (1970).

[37] Id.

Sean McCumber is a partner at Sullivan Taylor & Gumina, P.C. in Wheaton, Illinois and a long-time resident of DuPage County. He concentrates his practice in family law – divorces, paternity cases, child custody disputes, domestic partnerships, guardianships, adoptions, and juvenile law. He is active in the Family Law, Child Advocacy, and Legal Aid Committees of the DCBA.
 
 
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