Is Justice for Sale?

Thursday, June 18, 2009 | 0

By Eugene F. Keefe

Synopsis:  U.S. Supreme Court rules on conflict of interest arising from large campaign donations to judges/justices. However…

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 more than $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 multibillion-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 fund-raising 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.
 

Synopsis: Cigarette smoking doesn’t provide a defense to surgery. Not sure why it would be a defense to penalties and fees.

Editor’s comment: We have carefully reviewed this ruling. We have no idea why or how the Appellate Court didn’t affirm about $50,000 in penalties and fees.
 

In Global Products v. Workers' Compensation Commission, (No. 1-08-1914WC June 9, 2009), the Appellate Court was faced with a case that started with an injury in August 1999. Claimant had an undisputed fall-down and two lumbar surgeries, one of which was a fusion. As a result of the Commission’s ruling, claimant will now receive 323+ weeks of TTD and all his medical bills. Substantial additional TTD is now due along with voc rehab. From our review, there was no real defense present in the reported ruling. We have no idea why an insurance carrier would pay defense counsel to fool around with an undisputed and compensable case for 10 years.

But it gets better. The “defense” focused on the fact an IME doctor said claimant’s failure to quit smoking may have contributed to the failure of his first and second surgeries. The defense argued this was an injurious practice, citing Section 16D of the Illinois Act. The Appellate Court, in its wisdom ruled smoking did not break causal relationship between his work related injury and need for further treatment; nor did it constitute injurious practice entitling employer to refuse further surgical intervention. They completely rejected the defense.

However, the Appellate majority found the employer’s examining physician stated what they felt was a compelling although failed case for a defense of injurious practice. With respect to the Court, we consider that argument blurring but the Appellate Court found the award of fees and penalties was an “abuse of discretion” and reversed them. The whole matter was returned to the arbitrator for consideration of voc rehab and more TTD.

Our vote is to bring such a dispute to a head much sooner. Voc rehab was a virtual certainty based on these facts. Why wait five to 10 years to do what you will have to do anyway?

Understanding we are considered conservatives, as law professors and court observers, it is painful to agree with the dissent from the very liberal justice of the Fifth District, but we truly cannot understand the reasons for reversal of penalties and fees. Take a look at the case and give us your thoughts http://www.state.il.us/court/Opinions/AppellateCourt/2009/1stDistrict/June/1081914WC.pdf

 
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Eugene F. Keefe is a partner in the Chicago law firm of Keefe, Campbell & Associates.
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