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A Bump In The Road To Judicial Reform

No doubt about it: last week’s judicial elections in Illinois were a setback to the reform movement – but they were no where near a roll back and are easily explained. In fact, the outcome helps sets the stage for even more significant – and statewide – elections in 2016. I was quoted in the St. Louis Post-Dispatch on Thursday:

“I hope (this election) does not give undue encouragement to the plaintiffs’ attorneys who have a pretty tight grip on the courts in Southern Illinois right now,” said Ed Murnane, president of the Illinois Civil Justice League. “My advice to them, ‘Don’t read too much into this.'”

There is no doubt – there should be no doubt – in anyone’s mind that Tuesday’s election in Illinois and elsewhere was more about the big “R” and President Bush than it was about local issues, including continuing to move our court system in the right direction. Iraq was more important to voters than either Mt. Vernon or Edwardsville.

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In fact, to some extent in Illinois we may have been victims of our own success. The fervor of 2012 wasn’t there this year and in part that was because of what happened in 2012 and has taken place since.

As examples: much of the attention on the 2012 election in Southern Illinois was the result of a medical malpractice insurance crisis – and following the election (and because of the election) reforms have been enacted. In addition, much of the 2012 attention was focused on the judicial system in Madison County and following the election (and again, because of the election) local judges are enacting reforms that can improve the system.So the passion of 2012 was not there, even though the elections of 2006 were important extensions – continuations – of the reform movement. Voters, fickle creatures that they are, decided there were other priorities.But some good has come out of this judicial election and will carry forward into 2012 and beyond.

First, there is the issue of financing of judicial elections. We are one of the major players in that arena and I can tell you we would prefer not to be finding and spending hundreds of thousands of dollars and competing with trial lawyers who can (and do) write six figure checks each day of the week. Illinois has attracted attention as the site of three of the most expensive (1) Supreme Court; (2) Appellate Court; and (3) Circuit Court races in U.S. history.

There are ways to change that and we have some ideas, suggested here a few weeks ago. Although not an official authorized ICJL proposal, we are willing to talk about potential reforms to the system of electing and financing judicial selection in Illinois . We’re meeting wit Cindy Canary of the Illinois Campaign for Political Reform next week, just before Thanksgiving, to start some dialogue. While Ms. Canary is a pleasant person whom I met for the first time only a few weeks ago, she and her organization are heavily tied to and funded by trial lawyer interests and other influences, such as George Soros and Michael Moore so the discussions are not guaranteed to go anywhere. But it’s a start.

A second benefit of this year’s judicial election is the fact that some winners were so heavily funded by trial lawyers that it will be difficult for them to do anything without a bright – even intense – spotlight on them. David Hylla, who defeated Judge Don Weber in Madison County last week, is a plaintiff’s attorney and made no attempt to suggest that he would be anything but a plaintiff-friendly judge on the bench. He’ll be on the bench beginning next month and the whole world will be watching.

Same thing with Judge Bruce Stewart who moves on to the Fifth District Appellate Court in December. Although not a practicing plaintiff’s attorney himself (he’s been a judge for 11 years), he was their guy and was heavily funded by them. He’ll be under a bright light as he takes his seat in Mt. Vernon.

A third positive from 2012 has been identifying judicial candidates who didn’t win this year but who definitely should be encouraged to seek judicial office in the future. In fact, they should be high on the list for appointment when vacancies come along, as they always do. Three such candidates are Associate Judge Michael Powers of Will County , who sought the Third District Appellate seat; Attorney Paul Evans of St. Clair County, who took on Judge Lloyd Cueto; and Judge William Norton of Randolph County , an appointee of Justice Lloyd Karmeier who was not successful.

There were other good candidates but these three stand out.

One of them will be on familiar turf – another battle for the Appellate Court in the Fifth District may take center stage again. Because of the death of Justice Terrence Hopkins last month, Justice Karmeier will have another appellate seat to fill – with an election in 2008 to make it permanent. Depending upon whom Karmeier selects – there are good candidates in both parties – the Fifth District Appellate court could actually be more moderate than it was before the 2006 Election. Hopkins was very plaintiff-friendly. If the appointment to fill the vacancy is a moderate, it then almost comes to a situation in which Stewart has replaced Hopkins and the new appointee would replace McGlynn. Assuming the new appointee is no worse than a moderate, it could be a fairer and balanced court, at least for the next two years.

And in two years, the term of Justice Richard Goldenhersh is up for retention. Goldenhersh is the most hostile member of the Fifth District court and will certainly be the target of a “Vote NO” effort if he decides to seek retention (assuming he’s eligible). If Goldenhersh does not seek retention and the seat becomes an open election, there is no way trial lawyers would be able to slate anyone who would be worse than Goldenhersh so there would be a good chance that the Court would move even more slightly to the center. There are other interesting challenges brewing for 2016. One Supreme Court race will be on the ballot – the First District seat currently held by Justice Anne Burke. She should win easily. In addition to Goldenhersh’s seat, there are seven other Appellate Court seats expiring, including the seat of former trial lawyer Sue Myersough in the Fourth District. Myerscough ran against Justice Rita Garman in the Fourth District Supreme Court race in 2010.

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In the Fifth District, Appellate Justice Steven Spomer of Alexander County, faces retention to his Circuit Court seat. He was appointed to the Appellate Court but must be a sitting Circuit Court judge to be eligible and he must be retained in 2012. There also will be interesting retention questions in the Third Circuit. Madison County Judges Nicholas Byron and Edward Ferguson are on the schedule. There is no doubt that there will be massive campaigns against them or their designated successors.

And there are two added wrinkles.

Because of last year’s successful court challenge over the conflict between the Illinois Constitution and statute over the required date for judges to announce their retention plans, there will have to be some resolution and some modification to the system.
The second is this: If Illinois really wants to change the way judges are selected, a Constitutional Convention and change to Article VI (the Judicial Article) is the way to do it. It’s not an easy way – there is none – but it is the way.