| No. 09-____ ___________________________________________________________________ Supreme Court of the United States. Milvertha Pinnick, Guardian and next friend of Manna Pinnick and Cortland Pinnick, minors, Petitioners, -v- Corboy & Demetrio, P.C., a Professional Corporation, On Petition for Writ of Certiorari to the Supreme Court of Illinois.
PETITION FOR WRIT OF CERTIORARI
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Questions Presented.
1. Are petitioners denied due process when one or more Justices of the Illinois Supreme Court hearing their appeal receive substantial contributions for their election campaigns directly from----and have close personal and professional ties with----the respondents, the parties opposing their appeal? 2. Do members of the Illinois judiciary hearing an appeal involving a party who makes substantial contributions to their election campaign----and with whom they have close personal and professional ties----lose, or appear to lose, their ability to decide the appeal fairly and impartially so that recusal is required as a matter of due process?
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Table of Contents Questions Presented For Review..................................................................................................... i Table of Contents.............................................................................................................................ii Table of Authorities........................................................................................................................iii Citations of Opinions and Orders....................................................................................................1 Basis for Jurisdiction in this Court..................................................................................................1 Constitutional and Statutory Provisions Involved...........................................................................1 Statement of the Case..................................................................................................................... Argument Supporting Allowance of the Writ................................................................................
Conclusion..................................................................................................................................... Appendix.....................................................................................................................................post
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Citations of Opinions and Orders.
The unpublished and unreported Order of the Illinois Supreme Court in Milvertha Pinnick et al. v. Corboy & Demetrio, P.C. et al. (Docket No. 107359), filed and decided on December 22, 2008, denying petitioners’ Motion for Recusal of Supreme Court Justices Pursuant to Supreme Court Rule 63(C) and dismissing as moot petitioners’ Motion to Find Limitations of Appointment of Temporary Justices to the Illinois Supreme Court Unconstitutional, is set forth in the Appendix hereto(App. 1-2). The unpublished Motion by petitioners for Recusal of Supreme Court Justices Pursuant to Supreme Court Rule 63(C) and Motion to Find Limitations of Appointment of Temporary Justices to the Illinois Supreme Court Unconstitutional in Milvertha Pinnick et al. v. Corboy & Demetrio, P.C. et al. (Docket No. 107359), filed in the Illinois Supreme Court on November 24, 2008, is set forth in the Appendix hereto(App. 3-13). The published decision of the Illinois Supreme Court in Milvertha Pinnick et al. v. Corboy & Demetrio, P.C. et al. (Docket No. 107359), reported at 904 N.E.2d 985(Ill. 2009), filed and decided March 25, 2009, denying petitioners’ Petition for Leave to Appeal, is set forth in the Appendix hereto(App. 14). The unpublished and unreported modified ruling of the Appellate Court of Illinois, First Judicial District, in Milvertha Pinnick et al. v. Corboy & Demetrio, P.C. et al. (Docket No. 1-07-0533), filed and decided on October 20, 2008, affirming the rulings of the Circuit Court of Cook County, dismissing most of petitioners’ malpractice claims and holding that petitioners could only recover $100,000 for their injuries, is set forth in the Appendix hereto(App. 15- 48). The unpublished judgment of the Appellate Court of Illinois, First Judicial District, in Milvertha Pinnick et al. v. Corboy & Demetrio, P.C. et al. (Docket No. 1-07-0533), filed October 7, 2008, is set forth in the Appendix hereto(App. 49).
Basis for Jurisdiction in This Court. The decision of the Supreme Court of Illinois, the highest State court in Illinois in which a decision could be had, denying petitioners’ Petition for Leave to Appeal and leaving petitioners with no further appellate remedy in the State courts concerning the refusal of four of the Supreme Court Justices to recuse themselves from this case, was decided and filed on March 25, 2009(App.14). The ruling denying petitioners’ Petition for Leave to Appeal finally disposed of petitioners’ right to the recusal of these Justices based upon the due process clause of the federal constitution, all consistent with the language of 28 U.S.C. § 1257(a). On June 13, 2009, petitioners applied to Mr. Justice Stevens of this Court for an extension of time of forty-five (45) days, or until August 7, 2009, to file their petition for certiorari from the decision of the Illinois Supreme Court on March 25, 2009, denying petitioners’ Petition for Leave to Appeal. On June 17, 2009, Mr. Justice Stevens extended the time for petitioners to file this petition until August 7, 2009. This petition is filed within the time for filing as extended by Mr. Justice Stevens. The jurisdiction of this Court is invoked pursuant to the provisions of 28 U.S.C. § 1257(a). United States Constitution, Amendment XIV, § 1:
28 U.S.C. § 1257(a):
28 U.S.C. § 455:
Illinois State Constitution, Article VI, § 3:
Illinois State Constitution, Article VI, § 16:
Illinois Code of Civil Procedure 735 ILCS 5/2-1001:
Illinois Senate Joint Resolution Constitutional Amendment 10 (SJRCA10):
Statement of the Case. In August of 1995, Johnny Waites rented a 1994 Mitsubishi Diamante station wagon from McFrugal Auto Rental in Atlanta, Georgia. The next day, Ms. Constance McNair and Ms. Melissa Pinnick (“Melissa”), cousins and both mothers, drove the vehicle from Atlanta to Joliet, Illinois, to visit members of their family. With them on the trip were four children including two of Melissa’s young children, a daughter Manna, one and one-half years old, (“Manna”) and a son Cortland, then six years of age(“Cortland”)(“petitioners”). During the trip to Illinois, Melissa encountered trouble with the Diamante and she phoned Waites to tell him that the automobile was stalling and could only be restarted after several attempts. After arriving in Joliet, Melissa’s father unsuccessfully attempted to determine the cause of the stalling problem or to have McFrugal replace the vehicle while in Joliet. On August 17, 1995, Melissa and her cousin together with their children headed back to Atlanta in the Diamante. McNair was driving the vehicle and Melissa was in the front passenger seat with their children located in the backseat. At about 2:30 A.M., McNair was driving southbound on Interstate 65 in Indiana when she heard a noise, felt the left tire “shift” and then lost control of the car. According to McNair, the vehicle completely shut down—the car’s lights went out and the brakes and steering did not work. The Diamante slid across the road out of control, then through the median separating the southbound from the northbound lanes of the Interstate and came to rest in the passing lane of the northbound traffic lanes. Without lights and with doors which would not unlock, frantically McNair tried to restart the car. As she did so, a northbound Cadillac driven by James Dinsmore struck the disabled Diamante. The collision killed Melissa and critically injured her two children. Manna sustained a spinal cord injury and Cortland suffered traumatic psychological injuries, still endured today, as the result of waking up in the crushed automobile to see his deceased mother’s head facing backwards. In the aftermath of the accident, Melissa’s father, Robert Pinnick, contacted an attorney and family friend, Vincent Cornelius, who recommended that respondent Corboy & Demetrio, P.C.(“the Firm”) represent the Pinnick family. On August 30, 1995, Cornelius contacted respondent Robert Bingle, Esq., the Firm’s managing partner(“Bingle”). Cornelius told Bingle that the Diamante’s owner, McFrugal Auto Rental in Atlanta, Georgia, was attempting to retrieve the damaged car which was being stored in an auto pound in Indiana. On September 1, 1995, Bingle met with Robert Pinnick and Cornelius and told both of them that the Firm would obtain a court order to preserve the automobile in its present state (for the purpose of forensic analysis) and that he would have someone from the Firm investigate the vehicle. The Firm through Bingle then agreed to take the case; Milvertha Pinnick executed three retainer agreements as the personal representative of the petitioner Estate of Melissa Pinnick and the next friend of both children Manna Pinnick and Cortland Pinnick(“petitioners”). On the facts as he knew them, Bingle apprehended the potential for several causes of action on behalf of petitioners: (1) an action against McFrugal Auto Rental in Atlanta for its negligent maintenance of the Diamante; (2) an action against both McNair and James Dinsmore for the negligent operation of their respective vehicles; (3) a product liability suit against Goodyear, the tire manufacturer, for any discovered defects in the tire(s) which may have contributed to the accident; and (4) a product liability suit against the Diamante’s manufacturer (Mitsubishi) for any defects eventually discovered in the automobile itself. Following the meeting, Bingle telephoned the investigative firm Spahn-Breckinridge to find and photograph the Diamante. The vehicle was located that afternoon and the following day, Saturday, September 2, 1995, its private investigator (Edmund Rooney) ordered the police report of the accident and visited Highland Towing in Highland, Indiana where he photographed the wrecked Diamante and left his business card with instructions to contact him if anyone sought to remove the vehicle. In the meantime, Bingle dictated a memo to the case file that the Firm needed “to check out whether or not we need to get a protective order on the vehicle,” that the Firm “need[s] to follow up on this end of aspect [sic] of the case immediately,” and that the Firm “may need to file a lawsuit in order to get a protective order.” Bingle opted to enjoy the Labor Day weekend without obtaining the protective order and assigned the case to respondent G. Grant Dixon, III, Esq., (“Dixon”), an associate at the Firm. Dixon’s “to do” list included obtaining a protective order prohibiting anyone, including McFrugal Auto Rental, Mitsubishi or Goodyear, from removing, altering or in any way changing the physical state of the Diamante pending its examination by the Firm’s experts in order to determine the cause of the accident. By September 12, 1995, investigator Edmund Rooney filed his report of the accident together with photographs he took of the Diamante. Rooney noted that there were defects in the automobile’s flat right rear tire and that these defects were probably not caused by the impact of the collision. Thereafter, respondents never obtained the protective order to preserve the Daimante and, obviously without the vehicle, failed to engage a forensic auto or tire expert to add to Rooney’s rudimentary investigation, analyze the vehicle and determine with scientific probability the cause of the accident. Without a protective order in place, McFrugal, on September 27, 1995, took possession of the vehicle from Highland Towing in Indiana. Thereafter, the vehicle was never located, although a salvage title was issued by the State of Florida in late January of 1996. Compounding this careless lack of oversight by respondents about the whereabouts of the Diamante during this crucial period in September of 1995, Bingle in September or October lied to Cornelius, the Pinnick’s family attorney, telling him that the vehicle actually had been “checked out and that there was no issue with the vehicle.” As part of this subterfuge, Bingle denied Cornelius’ offer to take over the case, preventing Cornelius from examining file documents showing none of respondents had secured the automobile or obtained an expert forensic analysis of the Diamante or its tires before it was taken by McFrugal and then destroyed. Bingle’s lie that the vehicle had “checked out” was made while simultaneously respondent Dixon had his investigative firm scouring Illinois’ Mitsubishi dealerships for the Diamante or a replacement, a search which continued until the Circuit Court dismissed the case three years later. On November 29, 1995, the Firm’s Dixon on behalf of petitioners filed suit in the federal district court for the Northern District of Indiana against James Dinsmore based upon his negligent operation of his vehicle. The suit proceeded for three years until December 9, 1998, when the district judge dismissed petitioners’ complaint as a sanction for the Firm’s “lengthy pattern of discovery abuses” and its failure to abide by the trial judge’s discovery orders. In the wake of this dismissal in federal court, petitioners sued respondents Corboy & Demetrio, P.C., Bingle and Dixon in the Circuit Court of Cook County, Illinois, for spoliation of evidence under Count I; legal malpractice under Counts II through V; and for fraudulent concealment under Count VI in lying and failing “to inform [the petitioners] that they had neglected to perform an investigation of the car or its tires for the purpose of pursuing claims against Mitsubishi, Goodyear or McFrugal.” The State trial court entered summary judgment against petitioners on Count I’s spoliation claim because it ruled, after melding the spoliation count into the product liability counts, Counts III-V, there was no duty to secure and on all the legal malpractice claims except Count II for lack of proof. It dismissed Count VI’s fraudulent concealment claim because it could not be proven independent of any legal malpractice claim. As for Count II, the legal malpractice claim stemming from the dismissal of petitioners’ claims against Dinsmore in the Indiana federal district court on account of the Firm’s discovery abuses, the Firm at trial admitted liability. However, the trial court granted respondents’ motion to cap its liability under this count at $100,000, Dinsmore’s limits of coverage on his automobile policy. On February 12, 2007, a judgment was entered consistent therewith. Upon petitioners’ appeal from these rulings, the Appellate Court of Illinois for the First Judicial District issued its modified order on October 20, 2008, affirming all of the trial court’s ruling with minor revisions(App. 15-48;49). The Illinois Supreme Court then allowed petitioners’ motion for extension of time allowing them until November 24, 2008, to file their Petition for Leave to Appeal in that court(App. 4). Pursuant to Illinois Supreme Court Rule 315, petitioners instituted a Petition for Leave to Appeal to the Supreme Court of Illinois, on November 24, 2008, challenging each and every ruling of the Illinois intermediate appellate court(App. 4). Concurrently, petitioners moved for the recusal of four (4) of the seven (7) Illinois Supreme Court Justices pursuant to Supreme Court Rule 63(C) and for the appointment of temporary Justices for those Justices who should recuse themselves(App. 3-13). Specifically, petitioners claimed that respondent Firm is “the most recognized and renowned plaintiffs’ product liability law firm not only in Chicago and Illinois, but throughout the country” (App. 4). More important, petitioners alleged that the Firm through its attorneys, its experts and its witnesses has exercised pervasive personal and professional influence over the Illinois judiciary generally and the Supreme Court of Illinois in particular by establishing a close, confidential relationship with at least four (4) of the Justices of the Supreme Court(App. 4-5). It has done so by making substantial election campaign contributions-----clearly more than the de minimis amount requiring disqualification under Illinois Supreme Court Rule 63(C)(1)(d) and (e)(iii)-----to some of its Justices:
In addition, petitioners contended that the Firm’s legal experts Robert Clifford of the Clifford Law Offices and Joseph Power of Power Rogers & Smith, P.C., “have contributed substantial amounts to the abovementioned Justices including $25,000 to Justice Charles E. Freeman and $17,000 to Justice Robert Thomas”(App. 6). Besides these campaign contributions, petitioners alleged that Justice Robert Thomas recently received $7,000,000 in a defamation lawsuit where he was represented by the Firm’s legal expert Joseph Power of Power Rogers & Smith, P.C.(App. 6). Petitioners concluded that all of these campaign contributions by respondents, well in excess of $100,000 and sometimes approaching 20% of the total contributions received by a given Justice, together with Justice Thomas’ close relationship with the Firm’s legal expert Joseph Power of Power Rogers & Smith, P.C., prevent these four Justices from fairly and impartially hearing this appeal (App. 6-8). They accordingly sought their recusal “from hearing any arguments or rendering any decision in this matter including, but not limited to, ruling on [their] Petition for Leave to Appeal and [their] appeal to the Illinois Supreme Court if Leave to Appeal is allowed”(App. 8). Petitioners argued that the risk that these campaign contributions will compromise the four Justices’ ability to fairly or impartially hear this appeal, or have caused their fairness and impartiality to be reasonably questioned in the circumstances, is even more compelling than the risk of bias or prejudgment considered by this Court in the then pending case of Hugh M. Caperton et al. v. A.T. Massey Coal Company, Inc. et al., U.S. Supreme Court Docket No. 08-22, decided at 556 U.S. ___; 129 S.Ct. 2252(June 8, 2009)(“Caperton”)(App. 7-8). While the campaign contribution in Caperton represented 60% of the appellate judge’s total contributions, only one appellate judge of the West Virginia Supreme Court was affected by the contributions in that case and there were four (4) other appellate judges who could minimize the taint of prejudice(App. 7-8). Here, on the other hand, the campaign contributions by respondents have compromised the ability of four of the seven (7) Justices of the Illinois Supreme Court to fairly and impartially consider petitioners’ Petition for Leave to Appeal(App. 8). The resulting bias of four sitting Justices renders it impossible that petitioners could ever collect the four votes necessary to have their petition for Leave to Appeal granted(Id.). Moreover, in Caperton, the campaign contributions were not made by the party itself but rather by its major shareholder and one of its officers(App. 7). Here, however, respondent Corboy & Demetrio, P.C., itself together with respondents Bingle and Dixon as well as its legal experts have directly contributed to four Justices’ election campaigns or allied themselves directly with these Justices so that their ability to fairly and impartially decide this appeal has been compromised or appears to have been compromised(App. 7-8). Finally, petitioners asked the Illinois Supreme Court to reconsider its previous decisions determining that it was incapable of appointing or designating temporary substitute Justices to replace a Justice who could not hear an appeal because of a disqualifying bias or interest (App. 9-11). As petitioners argued, if this failure to appoint substitute Justices results in a lack of a quorum to even consider a petition for Leave to Appeal under the Illinois Supreme Court Rules, thus preventing any relief whatsoever for petitioners seeking further appellate review from the State’s highest court, the resulting lack of a meaningful appellate remedy violates the due process clause of the fourteenth amendment to the federal constitution “and must be found unconstitutional”(App. 11). On December 22, 2008, the Supreme Court of Illinois denied petitioners’ Motion for Recusal of Supreme Court Justices Pursuant to Supreme Court Rule 63(C), and dismissed as moot the petitioners’ Motion to Find Limitations of Appointment of Temporary Justices to the Illinois Supreme Court Unconstitutional(App. 1-2). On February 3, 2009, following the Illinois Supreme Court’s denial of petitioners’ Motion for Recusal of Supreme Court Justices Pursuant to Supreme Court Rule 63(C), the Illinois State Senate’s Executive Committee recommended to the Executive Subcommittee on Constitutional Amendments an amendment to the Illinois Constitution Art. VI, § 3, which would allow for temporary appointments to the Illinois Supreme Court when a sitting justice recuses him or herself because of an actual or perceived conflict of interest. The recused justice would be replaced by a judge of the appellate court selected in a random manner to be determined by Supreme Court Rule.
While petitioners’ petition for certiorari was pending before this Court, the Illinois Supreme Court proceeded to deny petitioners’ Petition for Leave to Appeal on March 25, 2009, leaving petitioners with no further appellate remedy in the Illinois State courts in order to have the judgment entered against them either reviewed or reversed(Milvertha Pinnick et al. v. Corboy & Demetrio, P.C. et al., 904 N.E.2d 985(Ill. 2009)(App. 14). Petitioners apprised this Court of the Illinois Supreme Court’s ruling in a supplemental Brief (Milvertha Pinnick et al. v. Corboy & Demetrio, P.C. et al., U.S. Supreme Court Docket No. 08-1129, Supplemental Brief). On June 8, 2009, while petitioners’ petition for certiorari was still pending, this Court decided Hugh M. Caperton et al. v. A.T. Massey Coal Company, Inc. et al., 556 U.S.___; 129 S.Ct. 2252(2009). In Caperton, the Coal Company’s chairman, CEO and president contributed $3 million toward the successful election of Justice Brent Benjamin of the West Virginia Supreme Court. Id. at ___;129 S.Ct. at 2257. In the wake of Justice Benjamin’s election, the State’s highest court considered an appeal by the defendant Coal Company from a jury verdict awarding the plaintiffs in that case the sum of $50 million in compensatory and punitive damages for the Coal Company’s fraudulent misrepresentations, concealment, and tortious interference with existing contractual relations. Id. at ___;129 S.Ct. at 2257. After denying the plaintiffs’ motion to recuse himself from considering the Coal Company’s appeal because of the contributions made to his election campaign by its chairman, CEO and president, Justice Benjamin cast the deciding vote in a 3-2 decision by the West Virginia Supreme Court reversing the $50 million verdict against the Coal Company. Id. at ___;129 S.Ct. at 2257-2258. A rehearing by the West Virginia Supreme Court produced another refusal by Justice Benjamin to recuse himself and another 3-2 vote reversing the jury’s $50 million verdict. Id. at ___;129 S.Ct. at 2257-2258. Mr. Justice Kennedy, writing for a majority of five Justices, vacated the ruling by the West Virginia Supreme Court and remanded the case to that court because “in all the circumstances of this case, due process requires [Justice Benjamin’s] recusal.” Id. at ___; 129 S.Ct. at 2254. Drawing upon Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 823-824(1986), Withrow v. Larkin, 421 U.S. 35, 47(1975), Ward v. Monroeville, 409 U.S. 57, 60(1972) and Tumey v. Ohio, 273 U.S. 510, 535(1927), the majority held that the objective standards contained in the due process clause provide more reliable guideposts for the discovery of a judge’s actual bias than his own personal inquiry into such matters. Id. at ___;129 S.Ct. at 2262-2265. These objective due process standards do not require proof of actual bias but instead ask whether “under a realistic appraisal of psychological tendencies and human weakness,” the interest “poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.” Id. at __; 129 S.Ct. at 2263 quoting Withrow, 427 U.S. at 47.
Since the contributions here eclipsed all of the other contributions by supporters of Justice Benjamin and therefore had a significant and disproportionate effect on the electoral outcome and because the temporal relationship between the campaign contributions, the justice’s election and the pendency of the case was “critical,” the majority ruled that the risk that these contributions may have engendered actual bias by Justice Benjamin in the case was “sufficiently substantial that it ‘must be forbidden if the guarantee of due process is to be adequately implemented.’” Id. quoting Withrow, supra. As the majority concluded, “[j]ust as no man is allowed to be a judge in his own cause, similar fears of bias can arise when—without the consent of the other parties----a man chooses the judge in his own cause.” Id. at ___;129 S.Ct. at 2264-65. Applying this principle to the judicial election process, there was on this record a serious, objective risk of actual bias that required Justice Benjamin’s recusal. Id. Chief Justice Roberts, joined by Justices Scalia, Thomas and Alito, filed a dissenting opinion arguing that the majority’s “probability of bias” standard for requiring a judge’s recusal was too elusive and unpredictable a standard upon which to grant relief in this context. 556 U.S. at ___;129 S.Ct. at 2267-2274. Justice Scalia also filed a separate dissenting opinion. 556 U.S. at ___;129 S.Ct. at 2274-2275. On June 29, 2009, the Court denied petitioners’ pending petition for certiorari in Milvertha Pinnick et al. v. Corboy & Demetrio, P.C. et al., U.S. Supreme Court Docket No. 08-1129. 557 U.S.___; 2009 US LEXIS 4751(2009). On June 13, 2009, petitioners applied to Mr. Justice Stevens of this Court for an extension of time of forty-five (45) days, or until August 7, 2009, to file their petition for certiorari from the final decision of the Illinois Supreme Court on March 25, 2009, denying petitioners’ Petition for Leave to Appeal. On June 17, 2009, Mr. Justice Stevens extended the time for petitioners to file this petition until August 7, 2009.
Argument Supporting Allowance of the Writ.
The Illinois Appellate Proceedings Deny Petitioners Due Process Because They Allow Participation By Appellate Judges Who Receive Substantial Campaign Contributions Directly From—And Have Close Personal and Professional Ties With----the Parties Opposing Their Appeal, Circumstances Which Prove The Objective Probability of Actual Bias Or Provide the Basis Upon Which The Judges’ Impartiality Might Reasonably Be Questioned. A. The Due Process Deprivation After Caperton. As the majority in Caperton made clear, due process requires a neutral and detached judge both at the trial and appellate level. Hamdi v. Rumsfeld, 542 U.S. 507, 533(2004) quoting Ward v. Vill. of Monroeville, 409 U.S. 57, 61-62 (1972). Withrow v. Larkin, 421 U.S. 35, 46-47(1975). In re Murchison, 349 U.S. 133, 136 (1955). Trial and appellate judges are more than mere umpires----in fact, they are the governors of the proceedings before them----and they cannot become an advocate or otherwise use their judicial powers to advantage or disadvantage a party. Quercia v. United States, 289 U.S. 466, 470(1933). Nor “should [they] give vent to personal spleen or respond to a personal grievance.” Offutt v. United States, 348 U.S. 11,14(1954). See 28 U.S.C. §§ 455(a) and (b)(1). The Court in Caperton established that the due process clause provides a constitutional floor in analyzing when recusal of a judge is required, i.e., “when the probability of actual bias on the part of the judge or decision-maker is too high to be constitutionally tolerable”----when, that is, there is a “serious, objective risk of actual bias.” 556 U.S. at ___;129 S.Ct. at 2257;2265. The objective due process standards do not require proof of actual bias but instead ask whether “under a realistic appraisal of psychological tendencies and human weakness,” the interest “poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.” Id. at __;129 S.Ct. at 2263 quoting Withrow, 427 U.S. at 47. The circumstances in Caperton combined to convince the majority that the respondent Coal Company had effectively chosen the judge—one of five—who would hear its appeal. Through its chairman, CEO and president, the Coal Company made $3 million in campaign contributions to Justice Benjamin, much more than his other supporters at a time when the case was sure to be heard by the West Virginia Supreme Court, a temporal nexus which it called “critical” to its conclusion that these contributions may have engendered actual bias by Justice Benjamin in hearing this appeal. As the Caperton majority concluded, “there is a serious risk of actual bias----based on objective and reasonable perceptions----when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case...[because] no man is allowed to...choose[] the judge in his own cause.” Id. at ___;129 S.Ct. at 2263(emphasis supplied). While the thrust of the Court’s objective due process analysis in Caperton was whether the respondent Coal Company had effectively chosen the judge who would hear its appeal by offering that judge through its principal an excessive amount of contributions for his election campaign, the Court’s analysis did not exhaust the circumstances under which a party with a personal stake in a case could have “a significant and disproportionate influence in placing the judge on the case” for purposes of its due process calculus. The principle emerging from this due process analysis by the Caperton majority is that a party may not consistent with due process choose the judge who will rule on his appeal, however it is brought about, i.e., either by excessive campaign contributions or by other factors influencing the selection of the judge, so that, objectively viewed, “the risk that [the Firm’s] influence engendered actual bias [by the judge] is sufficiently substantial that it ‘must be forbidden if the guarantee of due process is to be adequately implemented.’”Id. at __; 129 S.Ct. at 2263 quoting Withrow, 427 U.S. at 47. This petition comes clearly within this principle enunciated by the Caperton majority. Not only have four Justices of the Illinois Supreme Court received significant campaign contributions directly from a party rather than its proxy but also these same four Justices have close personal and professional ties to the Firm and are beholden to it for their selection as justices in the first place. In these circumstances, objectively viewed, the risk that the Firm’s influence engendered actual bias on the part of these four Justices is sufficiently substantial within Caperton’s rationalethat it must be forbidden if the guarantee of due process is to be adequately implemented. Stated another way, these four Justices have objectively lost, or have appeared to lose, their ability to decide petitioners’ appeal fairly and impartially so that recusal is warranted as a matter of due process. The Firm together with the other respondents in this case not only furnished each of these four Justices with substantial campaign contributions but also provided them with the political machinery, the “slating,” and the votes so that these justices were selected to run and then elected to their positions in the first place. This is more than Caperton’s very substantial campaign contributions; here the substantial campaign contributions are coupled with the Firm’s established political power in assuring that the judges it “slates” for election are, in fact, elected. This combination of political power and campaign contributions far surpasses the leverage which the Coal Company brought to bear in Caperton and argues persuasively for a finding of actual bias under Caperton’s objective due process standard. This constitutional standard for recusal, i.e., that recusal is required as a matter of due process when the appearance of partiality is serious enough to generate an objective “probability of actual bias,” Caperton, supra; Withrow, supra, is supplemented by a more stringent non-constitutional standard expressed in federal law and various state and federal judicial codes, i.e., that recusal is mandated where a judge’s “impartiality might reasonably be questioned.”See 28 U.S.C. §§ 455(a); Illinois Supreme Court Rule 63(C)(1)(“ A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned....”); ABA Model Code of Judicial Conduct R. 2.11 (A)(2007)(same). Petitioners submit that the Justices’ recusal was required here under either standard. In the first place, as the Court made clear in Caperton, Tumey and Lavoie, the ability of the judicial officers to rule fairly and impartially is fatally compromised by the possibility of a financial interest in the outcome of the cases before them. In Lavoie, the Court determined that it was a violation of due process for a State supreme court justice to participate in the court’s review of a verdict of bad-faith refusal to pay an insurance claim because this justice was pursuing his own bad-faith suit against another insurance company and the outcome of the case before the court might have had a direct effect on the outcome of the justice’s case. 475 U.S. at 825. The Court noted that the “possible temptation” suggested by these attenuated facts was enough to conclude that a probability of actual bias existed sufficient to constitutionally impugn the proceedings.Id. For the record, the respondent Firm and their legal experts have given at least $115,750 to three of the Justices’ political committees—$52,500 for Chief Justice Fitzgerald, $33,250 for Justice Thomas, $30,000 for Justice Freeman-----as well as $26,500 to Justice Burke and her husband, City of Chicago alderman Edward Burke who is also Chairman of the Cook County Democratic Party’s judicial “slating” committee. He presides over and greatly influences the individuals nominated in Cook County for judicial “slating” (Chief Justice Fitzgerald, Justice Burke and Justice Freeman were all “slated” and elected from Cook County). Second, the Firm and its principal partners are the primary determinants of who will be “slated” for judgeships county and state-wide, who will receive the most money for their respective election campaigns (depending on whether their elections are contested) and who will eventually be elevated to the State’s judicial appellate tier. “Slating” by party means that the candidate has the support of the ward boss who can deliver votes and, in a judicial election where the winning candidate may need only 30,000 votes to win, guaranteed votes are crucial to success. Loyalty is expected to be shown by those judges who benefit from this support by the Firm. Besides “slating” favored judges for appellate judgeships, the respondent Firm’s partners maintain a broad range of personal and professional relationships with members of the State judiciary. The Firm’s partners and the Justices of the Supreme Court are frequent invitees at each other’s social and professional gatherings and the Firm’s partners have served numerous terms as president of various bar associations including the Illinois State Bar Association, the Chicago Bar Association and the Illinois Trial Lawyers Association as well as presiding over county and state judicial selection and qualification committees. In this environment, the Justices’ receipt of substantial financial contributions directly from a party appearing before it----a party who enjoys an ongoing personal and professional relationship with these same Justices----is sufficient to prove an objective probability of actual bias warranting their recusal as a matter of due process. These same facts provide a sufficient basis for reasonably questioning their impartiality under both state and federal judicial codes. Recusal was therefore warranted as a matter of due process. Caperton, supra. Withrow v. Larkin, supra. In re Murchison, supra. Indeed, recent research by political scientists at the University of Pittsburgh and Utah State University shows a strong correlation between campaign contributions and decisions by the State Supreme Court judges in states that elect those judges, especially in states where judges are elected in partisan contests (e.g., Michigan and Texas) as opposed to being listed on a nonpartisan ballot (e.g., Nevada). In an environment where attorneys and law firms make campaign contributions, the study found that judges notice those who contribute relatively large sums of money so that when liberal attorneys contribute more money to a judge’s election campaign, the likelihood of a liberal decision increases; the same is true for contributions made by conservative attorneys; and the contribution advantage does not have to be that high for the likelihood of victory to increase significantly. Thus substantial contributions to an appellate judge’s election campaign inevitably influence his or her decision-making process and a rule which disqualifies a judge in a proceeding in which there is an objective “probability of actual bias” because of such substantial contributions or where his partiality might reasonably be questioned on the same ground, including instances where he has a close personal or professional relationship with a party appearing before him—indeed, the judge is beholden to the party for being selected as a judge in the first place----guarantees a fair hearing consonant with due process. In his dissent, Chief Justice Roberts argued that the majority’s decision would open the floodgates for a wide variety of Caperton-styled disqualification motions, positing a series of forty (40) questions which he contends identify the imprecision of the majority’s analysis. 556 U.S. at ___;129 S.Ct. at 2267-2275. Answering these questions presents this Court with the unparalleled opportunity to provide guidance to the Illinois Supreme Court as well as other appellate courts generally in determining when recusal is required as a matter of due process. For example, in response to how much money in campaign contributions is required before recusal is required because of the “probability of bias”(#1), the answer must be that it depends on how the amount of money combines with the power of the contributor, usually a top donor like the Firm, to determine judicial “slating” and the certainty of the judge achieving his/her judicial seat. A contribution is “disproportionate” (#2) when it is out of all relationship to the donor’s single standing; when it is made to signify a person as a “top donor” in order to be remembered by the judge as more than just another attendee at a fundraising event. Moreover (#3), all financial support must be considered as long as it can be identified as coming from the same source; and (#4) it should not matter if the donor makes large contributions in other elections. Further responding to Chief Justice Roberts’ questions (#5), the nature of the relief sought should be irrelevant to the analysis of whether there is an unconstitutional probability of bias since this inquiry depends primarily on the combination of factors (e.g., money, political power, personal alliances, etc.) which give a donor special leverage in obtaining a favorable ruling. Nor (#6) should it matter on what judicial tier the judge sits—the probability of bias warranting recusal can occur at the trial, intermediate appellate and the ultimate appellate level. As a matter of common sense and “a realistic appraisal of psychological tendencies and human weakness,” the probability of bias (#7) should last as long as the judge can be expected to remember his major contributors, his dominant political allies and his close friends. In both Caperton and this case, the votes of the affected justices’ were outcome determinative (#13). However, the propriety of recusal should not rest on this factor. The merits of the case should be irrelevant to the need for recusal by the original judge(#14) since a replacement judge, one free of the probability of bias, will be presumed to have made the “right” decision consonant with due process. However, if a trial judge refuses to recuse himself and his decision on the merits is affirmed by an appellate panel(#15), the result may be defensible if the burden of showing error on the merits of the controversy was not otherwise sufficient to warrant appellate reversal. Independent review by another judge of a recusal decision—as long as the other judge or panel is untouched by the probability of bias—would validate decisions refusing to recuse(#19). In making this calculus about the probability of bias, the close personal friendship between the judge and a party is a relevant consideration(#20). While it is unclear whether in Caperton Justice Benjamin had a friendship with the Coal Company’s principal, here the four Justices maintained for years—even decades---close personal friendship with the Firm, its partners and the other respondents, relationships which definitely should have been considered in measuring the probability of bias in this case. Furthermore, the objective test of Caperton has more resonance here because the donor is not a party’s attorney but rather a party itself in these proceedings(#22). Nor should this due process analysis vary among the several States(#23). The crucial inquiry after Caperton is whether factors such as money, campaign contributions, political power, personal friendships, etc. operate in combination or alone to create a probability of bias such that“a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case...[because] no man is allowed to...choose[] the judge in his own cause.” Id. at ___;129 S.Ct. at 2263(emphasis supplied). Strict causation plays no role in this objective analysis (#25); rather common sense together with “a realistic appraisal of psychological tendencies and human weakness” provide reliable guideposts. Moreover, the timing of the judge’s election should have no influence in determining a probability of bias in any particular case because the right to due process doe not depend on when the case was filed(#28). As far as attribution of campaign contributions is concerned(#29), any contribution by the Firm’s partners, associates or employees should be imputed to the Firm; and the same result should obtain when members of the same family make campaign contributions to judges. In addition, it should not matter whether the judge is running unopposed or in a contested race for the objective due process test to apply(#30). Here, Justice Freeman ran unopposed in 2000, yet received $5,000 from respondents together with $25,000 from respondents’ experts. Justice Anne Burke ran unopposed in 2008 and still received $1500 from respondents while her husband, Alderman Edward Burke, received $3,000 for his campaign. The contributions made to other judges during other campaigns do not “dilute the debt of gratitude”(#32). The test remains an objective one: substantial contributions, whenever made, should be considered in any calculus measuring the probability of bias. As state actors, the Justices here should be liable under 42 U.S.C. § 1983, if they refused to recuse themselves where there was a probability of bias(#33); and the same state limitations period and retroactivity principles should govern the reach of such actions(#34). As for relief in the wake of a “Caperton ruling” (#35), cases should be remanded to the affected court for further proceedings beginning with those proceedings which remain uncontaminated before the affected judge refused to recuse himself. Here, this Court could justifiably remand the matter to the Circuit Court of Cook County for a new trial of petitioners’ claims before Judge Susan Zwick. Finally, limited discovery should be available on Caperton motions, subject to appropriate sanctions(#37); and a judge’s personal view of his own bias, as in Caperton, ought to be irrelevant in an objective determination of actual bias(#39).
If petitioners’ motion for recusal of the four Justices of the Illinois Supreme Court had been successful, the Court would have lacked a quorum under Article VI, § 3, of the Illinois Constitution to conduct further review of this case and because a clear majority of four votes out of seven is necessary to grant petitioners’ Petition for Leave to appeal, it would have lacked the power to grant the petitioners’ Petition for Leave to Appeal, leaving intact the ruling of the intermediate appellate court and leaving petitioners with no remedy at the highest appellate level in the State. The solution for this lack of a quorum and lack of a majority would be for the State Supreme Court to appoint replacement judges from the other appellate courts in the State to sit for those judges who have recused themselves. However, because the State Supreme Court has twice ruled that it does not have the power under Article VI, § 16, of the Illinois Constitution to appoint replacement judges when recusal takes place, see PHL, Inc. v. Pullman Bank & Trust Company et al., 721 N.E.2d 1119, 1120(Ill. 1999); Perlman v. First Nat. Bank of Chicago, 331 N.E.2d 65, 65(Ill.1975), there is no effective remedy in the State constitutional scheme to cure this lack of a quorum or of a majority in the Supreme Court, leaving petitioners permanently without an effective or fair appellate remedy in the State’s highest court. This incomplete State constitutional scheme for appointing temporary or replacement judges in the event that a Justice of the Supreme Court recuses himself or herself does not pass muster under the federal due process clause applicable to Illinois via the fourteenth amendment and without such substitute Justices, petitioners have been and will be denied a fair hearing on their claims. The Illinois Supreme Court’s cramped conception of its own power to appoint replacement judges when recusal occurs does not cure but compounds this constitutional impropriety. Once it is determined that the Due Process Clause applies to the State court proceedings, “the question remains what process is due.” Cleveland Board of Education v. Loudermill, 470 U.S. 532, 541(1985) quoting Morrissey v. Brewer, 408 U.S. 471, 481(1972). The Court’s decision in Mathews v. Eldridge, 424 U.S. 319, 334-335(1976) dictates that the process due in any given instance is determined by weighing “the private interest that will be affected by the official action” against the government’s asserted interest, “including the function involved” and the burdens the government would face in providing greater safeguards. Id. at 335. The Mathews calculus then contemplates a judicious balancing of these concerns, through an analysis of “the risk of an erroneous deprivation” of the private interest if the process were reduced and the “probable value, if any, of additional or substitute procedural safeguards.” Id. See Hamdi v. Rumsfeld, 542 U.S. 507, 528-529(2004). Employing the Mathews calculus to the circumstances here in order to balance the petitioners’ legitimate private interest in having a meaningful appellate remedy even if four of the Justices of the Supreme Court recuse themselves against the judicial system’s need for efficient administration, the petitioners submit that the process due them consists of the following, as represented by legislation being considered by the Illinois General Assembly to amend Article VI, § 3, of the Illinois Constitution:
Conclusion.
For the reasons identified herein, a writ of certiorari should issue to review the decision of the Supreme Court of Illinois denying petitioners’ Petition for Leave to Appeal and, ultimately, to vacate the Order by four of the Justices refusing to recuse themselves from this case and remand the matter to the Illinois Supreme Court for reconsideration in light of this Court’s decision. In the alternative or in addition, the Court should decide that as a matter of due process these four Justices were required to recuse themselves from this proceeding once it was shown that respondents made substantial contributions to their election campaigns or to their spouses and maintained close personal and professional relationships with these Justices, a combination which proved a probability of bias in favor of respondents and against petitioners. This Court should further declare that the Illinois Supreme Court’s practice of refusing to appoint replacement judges for Justices who recuse themselves denies petitioners due process of law; or provide petitioners with such other relief as is fair and just in the circumstances of this case, including remanding this matter to the Circuit Court of Cook County for a new trial of petitioners’ claims before Judge Susan Zwick.
Respectfully submitted,
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