Keefe, Campbell & Associates, LLC

Editor’s comment: We saw an excellent article in the Daily Herald we want to share with our Illinois readers. If you take a look at it on the web, you will note it has a nice picture of former IWCC Commissioner David Akemann who is running as a judicial candidate in Kane County.

The article points out there are three Kane County judicial candidates in the Feb. 2, 2010 primary who say they’re limiting or refusing campaign contributions from other attorneys to avoid the appearance of bias in the courtroom, if they win. The rest of their competitors say the move is a publicity stunt, and is reflective of the candidates’ insecurities about making impartial decisions.

The debate ensued after Republican David Akemann and Democrat John Dalton issued news releases pledging to forego attorney donations out of ethical concerns. At issue is whether a campaign contribution could present a conflict of interest or the appearance of one at least if the donor-attorney later argues a case in front of the candidate.

We are telling everyone who will listen we consider impossible for someone to take a campaign donation of $1,000 to $100,000 from a law firm and then be unbiased if the lawyers from that firm later appear before the candidate. We will always remember the debate that raged in the Illinois Supreme Court election between Gordon Maag and Lloyd Karmeier with literally millions coming into Illinois from outside the state. When Justice Karmeier won, he later appeared at oral argument and participated on a majority that tossed out a multi-billion dollar ruling on behalf of the tobacco companies. His participation stoked criticism from the Illinois Trial Lawyers Ass’n until someone pointed out Justice Karmeier’s opponent also took literally millions from the Plaintiff bar.

We would point everyone to comedian Robin Williams current comedy special on HBO—he suggests judges and politicians be decked out like NASCAR drivers with the names of their sponsors on their robes, jackets, shoes and outerwear. If they did so, it might make it easier to understand their decision-making processes.

The problem we have with the judicial candidates in Kane and Will and DuPage and Grundy and every other Illinois county who sanctimoniously contend they are certain to be unbiased is to have them ask attorneys from other parts of the state how they feel when they wander into a courtroom with a local veteran attorney who not only knows the judge but actively contributed to his/her campaigns. Under Illinois’ current ethical canons, the existence or amount of the campaign contribution to a judicial candidate does not have to be disclosed at all.

There is one other factor we want all of you to understand. Defense attorneys aren’t on a level playing field in making campaign donations to judges and justices. We sporadically appear before numerous judges in lots of venues. There is and will always be an imbalance when you compare that sort of legal practice with a Plaintiff attorney who lives and practices law in a smaller county with a few judges. It is much, much easier for such an attorney to wisely sprinkle the local infield during each election with cash to insure the judges and justices remember him/her when they walk into a courtroom. It isn’t unethical, yet. But we are starting to see the more enlightened members of the bar notice it is truly tantamount to legal “bribery” because if the judicial candidate doesn’t use the money, he/she can pay the taxes and keep it.

We appreciate your thoughts and comments. We also hope the local WC community in Kane County steps up to support our WC alumnus in David Akemann.

Editor’s comment: They didn’t provide any guidelines!! This is a major political football that may keep getting kicked around for years to come. We are confident this is one of the reasons Illinois is such a judicial mess or what has been called a “hellhole” in the judicial arena. It is fascinating to see nothing has been done to stop the practice. We aren’t even aware of any Illinois Bar Association committee meeting or anyone looking into the new problem. It is impossible to contemplate any judge who has accepted a significant campaign donation from a litigant wouldn’t be favorable to their donor. We assure you this is the major problem with getting a defense ruling in either Cook or Madison Counties in this state. Some members of the judiciary appear to be bought and paid for at every step of their handling of litigation.

In the 2004 Supreme Court election race between now-Illinois Supreme Court Justice Lloyd Karmeier and his opponent Gordon Maag, millions of dollars flowed into Illinois from all over the United States. Illinois set a record when over $9 million was spent on a judicial election. All of your favorite “1-800-Call-Plaintiff” class-action lawyers from New Jersey, Texas, California and elsewhere donated heavily to candidate Maag’s war chest to ostensibly seek favor with someone who might soon be providing important rulings in their behalf. In response, many businesses across the country ponied up funds. Later, when a multi-billion-dollar verdict was reviewed by the Supreme Court and reversed, criticism was raised due to the fact Justice Karmeier accepted campaign donations from tobacco companies who had the major stake in the claim. At the time, we pointed out the Supreme Court race was a crossroads of money moving on both sides. We considered it completely nonsense to claim Justice Karmeier had a conflict because he won and his opponent lost.

Now, in their ruling in Caperton, et. al. v. A.T. Massey Coal Co., Inc., the U.S. Supreme Court ruling reversed a West Virginia judge’s refusal to step aside in the case of a million-dollar campaign supporter. In the courts below, a state Supreme Court judge took $3 million in campaign contributions from a coal executive with Defendant but would not recuse himself from a case concerning the executive’s company. The nation’s highest court responded, saying judges can’t appear impartial in cases involving major donors and therefore have to recuse.

“The probability of actual bias on the part of the judge or decision-maker is too high to be constitutionally tolerable,” wrote Justice Anthony Kennedy for the Supreme Court majority in a 5-4 ruling.

In Illinois, our campaign finance system has no limits on contributions. This flawed system of selecting judges/justices has produced record-setting fundraising well into the millions of dollars in judicial contests. The U.S. high court’s ruling in Caperton renders it impossible to determine whether we now need to establish new thresholds for impartiality. While the high court made it clear judges shouldn’t hear cases involving big-time donors, it didn’t establish an amount of campaign donations that should disqualify a judge or require recusal. We argue what is “reasonable” is in the eye of the beholder.

We also point out our system of law has no ethical requirement in this state requiring counsel for a litigant to even disclose $1 of contributions to a judge or justice, as part of court documents, discovery or pleadings. Try to imagine going into a courtroom where one’s opponent or their law firm had donated thousands of dollars to the judge. Good luck getting a fair hearing. We feel Justice Kennedy’s quote would apply—there would clearly be a “probability of actual bias.”

We want everyone to understand you can independently search for all campaign donations online at http://www.elections.state.il.us/campaigndisclosure/Welcome.aspx. As defense counsel, we always perform such a search.

Please also understand raising the issue of campaign contributions from your opponent is like spitting on a judge’s gavel—it is tantamount to calling them a crook. Good luck with that judge/justice moving forward unless you have a major claim and your client is willing to fight the issue into the reviewing courts. We assure our readers everything about this issue only benefits the Plaintiff’s bar. Everything about it for the defense industry is bad and worse but the question is—will the defense industry do anything to stop the bias present in Illinois courtrooms?

In states such as Missouri, the ruling isn’t an issue because a nonpartisan commission submits judicial nominations to the governor, who makes the final choice. We vote that system would be a much better alternative to the judicial elections in Illinois—we would get political appointees as judges/justices but they wouldn’t be bought an paid for, as Illinois does now. Our current Governor prefers judicially funded elections. We also would support that approach.

We ask all of you for your thoughts and comments.

Editor’s comment: Why would our liberal Plaintiff bar give up the dominance they have with the judiciary? We point out there is no group in the Illinois body politic that has more money or a bigger stake in controlling the judiciary. Many Plaintiff firms donate literally hundreds of thousands of dollars to get judges favorable to their needs and desires. We assure you they will work quietly to avoid this reform as being “bad for their business.” What drives the defense industry nuts are the massive egos of the Plaintiff bar who strut around like they are geniuses when their rulings are bought and paid for long before oral argument takes place.

Everyone should note it is perfectly legal in Illinois for a law firm to donate $1 million to a judge’s campaign. If the judge doesn’t use the money in their campaign, he/she can cash the check, pay the income taxes and spend the money. If that isn’t legalized graft, we are not sure what would be. It is inconceivable to think such a judge could be fair and impartial in litigation involving such a lawyer but we assure you that same concept happens every day in this state. It is not considered a conflict of interest for a lawyer to appear before a judge to whom they have donated thousands of dollars—they don’t even have to disclose such contributions to the other side!!

Please remember in many types of litigation, judges approve the legal fees earned by Plaintiff lawyers. It is comical to think such judges aren’t influenced by campaign monies. Please recall the judge in tiny Madison County, Illinois who provided one of his “favorite” plaintiff lawyers with a legal fee of $1.1 billion dollars or what we felt would have been an hourly rate of over $100,000 per hour. The interest on the appeal bond on that judgment and attorney fee bought the county a brand-new courthouse and lots of other fun stuff no other Illinois county has.

An amendment to Senate Bill 352 is available for review online at http://www.reformillinoisnow.org/DB/IRC%20-%20Campaign%20Finance%20-%20Judicial%20Public%20Financing.pdf. The funding proposed is to come from assessing each Illinois lawyer a $50 surcharge on his or her ARDC registration fees and a $1 fee on litigants who file civil actions. The only problem is whether Illinoisans have the common sense and intelligence to push for its passage.

We vote for anything that creates an honest and independent judiciary in this way-too-crooked state. Please send your thoughts and comments.

Editor’s comment: Graft occurs when a public official obtains something of value, not part of his/her pay, for doing work that is a part of the job. In Illinois, judges run for office. There are some restrictions on campaign contributions but not a lot. To our knowledge, any public official can take monies donated to their campaign, pay the taxes on it and put the money in their pocket. Please understand we are not accusing anyone of committing a crime but how can anyone say giving a judicial candidate or group of candidates $100,000 or more during a campaign wouldn’t affect their impartiality during any subsequent hearing?

We have gone on record numerous times asserting it should be a conflict of interest for a judge to whom a lawyer has donated campaign funds to allow the attorney to appear before them. Please note the vast majority of judges don’t even disclose substantial campaign donations to all parties prior to a contested hearing.

Now, four Illinois Supreme Court justices have been asked to withdraw from hearing an appeal of a legal-malpractice case against Corboy & Demetrio, one of the nation’s top personal-injury firms, because the justices have gotten major political contributions from the firm’s attorneys. The matter involves a hotly contested case alleging Corboy lawyers mishandled a lawsuit brought on behalf of the family of a woman who was killed and her two daughters who were injured in a car crash in 1995.

The motion seeking the recusal of four Illinois Supreme Court Chief Justices comes just after the U.S. Supreme Court agreed to hear arguments in a West Virginia case testing whether elected judges can take part in cases involving their campaign contributors. In the West Virginia case, Justice Brent Benjamin won election after the chief executive of the Massey coal company contributed $3 million to his campaign and raised half a million more; amounting to 60 percent of the justice’s campaign funds. After the election, Benjamin twice cast the deciding vote to set aside a $50 million judgment against the coal company. Similar complaints were raised involving the campaign between current Illinois Supreme Court Justice Karmeier and his opponent Gordon Maag. Justice Karmeier accepted monies from the tobacco defendants and then ruled in their favor. His opponent raised several hundred thousand dollars from class actions lawyers outside of Illinois that we assure you was implicitly or explicitly designed to curry favor in future class action rulings.

In the Corboy suit, because there are only seven justices on the Illinois court, the motion sets up the possibility that, should the four justices recuse themselves, there would not be enough jurists left to hear the case, rendering the appeal meaningless. The Illinois Constitution requires four votes for any Supreme Court ruling to be official, and the constitution has no provision for appointing substitute justices.

The motion for recusal states some members of the Corboy firm and two of the firm’s experts in the car crash case donated well over $100K to the four justices or their families. That is a substantial amount of money. We invite your thoughts and comments.