Saturday, January 29, 2011

Judicial election reform in the wake of the Emanuel case

Rahm Emanuel said, "You never let a serious crisis go to waste," and, whether one calls it irony or karma, the now-resolved crisis over Mr. Emanuel's ballot status has provided an opportunity for critics of the way we choose judges in Illinois to once again pitch merit selection as an alternative.

While waiting for Thursday's Supreme Court decision, the Tribune announced that it was shocked, shocked to find out that politics was involved in the selection of judges.

From David Kidwell's article, posted on the evening of January 24:
Longtime Appellate Court Judges Thomas E. Hoffman and Shelvin Louise Marie Hall — who on Monday ruled that Emanuel's stay in Washington precludes him from running for mayor this year — were both judicial candidates slated for election by the Cook County Democratic Party judicial slating committee chaired by Ald. Edward Burke, 14th.

Burke, one of Chicago's most powerful politicians, holds huge sway in the election of judges at every level, including the Illinois Supreme Court, where his wife, Anne, sits as a justice and where the Emanuel ballot question is now headed for a final decision.
An article by Kidwell and Rick Pearson, posted on the evening of January 26, was headlined "Will Emanuel ruling rise above politics?" The article carried the breathless subhead, "The 4 Democrats, 3 Republicans on state Supreme Court all have political ties." (Who knew?) And from the article:
"This is not something that is unique to these judges," said Malcolm Rich, executive director of the Chicago Council of Lawyers, a group that pushes for merit selection. "For all judges, there is a strong likelihood that once you are slated by the political organization, you will become a judge."

"Does that political influence find its way into decisions? I don't know. We may never know," Rich said. "But as long as we live in the political reality under which the election of judges operates, we will never be able to escape these kinds of inherent conflicts."
In his blog for Crain's Chicago Business, Greg Hinz wrote:
[T]he amount of chatter surrounding this case ought to make reasonable folks wonder whether electing judges in highly partisan, extremely expensive races truly serves the interest of justice.

Put a different way, our justice system will work only if people are convinced it's not gamed.

I don't know if appointment of judges — a.k.a. "merit selection" — is the way out. It, too, has its own flaws.

But it really is time to take a look to see if we can devise a better means to select at least the high court. Illinois' justice system ducked a bullet this time. But surely others will be fired in years to come.
If there's really a serious groundswell for reform of Illinois judicial election system, retired Illinois Appellate Court Justice Gino DiVito has suggested a practical, achievable reform: In December's Illinois Bar Journal, Justice DiVito suggested (ISBA membership required) that Illinois make judicial elections non-partisan.

Justice DiVito isn't as enthusiastic about his idea as I am (he's a dedicated proponent of merit selection) but I think this proposal has (*ahem*) merit:
Every registered voter, regardless of party affiliation or lack of it, would have access to a judicial ballot and would be eligible to vote in the judicial election. Thus, Democrats, Republicans, and members of any other political party could cast votes in the separate judicial election held concurrently with the primary election.

Those who choose not to declare political party affiliation - independent voters - also could vote in such elections. Because any registered voter could vote, election by a fraction of one party's voters would end.
As Justice DiVito notes, such a reform would require a constitutional amendment (he suggests language for such an amendment in the Bar Journal article).

Amending the constitution is a difficult process. But it's a struggle worth undertaking. Why should Republican voters in Cook County be almost entirely disenfranchised when it comes to selecting judges? Why should Democratic voters in DuPage or most other Illinois counties be similarly disenfranchised?

And, truth to tell, a lot of voters skip the primaries. But most of the judicial races are decided in the primaries -- and voters who turn out only for general elections are also shut out of the process of judicial selection. Under Justice DiVito's proposal, general elections could again become relevant:
Only a candidate receiving more than 50 percent of the vote [in the non-partisan primary] would be elected to judicial office. This would eliminate the current phenomenon of electing candidates with a small percentage of the votes from a single dominant political party, a frequent occurrence in current primary elections with numerous candidates.

Under the proposal, if no candidate reaches the required percentage, a run-off election between the two top vote-getters would be held in the November general election - without party designation. This should focus attention on the relative merits of the two candidates rather than their party affiliation.
Neither Justice DiVito's proposal nor any merit selection scheme (nor any scheme involving human beings) will entirely remove political considerations from judicial selection. Party endorsements would still be very important, but at least more voters would have a say concerning the worthiness of the dominant party's choice. That alone might be an important reform.

Perhaps a crisis involving Rahm Emanuel's hopes to run in a non-partisan mayoral primary create an opportunity for non-partisan judicial primaries in the future.

45th Ward Aldermanic debate to be rebroadcast on Internet radio next week

Per Facebook message received from Merril Miller, this week's 45th Ward Aldermanic Debate will be rebroadcast Monday, January 31 from 7:00 to 9:00pm and again on Wednesday night from 10:00pm to midnight on Slam Internet Radio. (There's a "listen live" button if you follow that link.) Miller also advises that Slam Internet Radio President Joshua Modaressi is offering edited copies of the debate "archived on ustream" for sale. As a card-carrying Luddite I do not know what that really means, but additional information is available by contacting Mr. Modaressi through the Slam Internet Radio website.

Tuesday, January 25, 2011

Supreme Court takes Emanuel appeal; decision on the merits can come at any time?

Here is the text of the Order entered earlier this afternoon by the Illinois Supreme Court in the Maksym case:
The emergency motion by petitioner Rahm Emanuel to expedite consideration of the petition for leave to appeal is allowed. The petition for leave to appeal is allowed. This Court is taking the case on the briefs filed by the parties in the appellate court. No additional briefs will be filed in the Supreme Court. Oral argument will not be entertained.
The key sentence here, I believe, is that, "This Court is taking the briefs filed by the parties in the appellate court."

The attorneys for the parties may be somewhat relieved at this: It is difficult enough to craft a persuasive appellate brief; attempting to craft one under the extraordinary time pressures necessitated by the fixed dates for the upcoming primary election would be extraordinarily stressful.

On the other hand, this one sentence suggests that the Supreme Court is comfortable that it has all it needs to issue a decision -- and because it is not taking any additional briefs, chances are that a decision may be forthcoming soon.

The probability that a decision will be issued very soon, without additional briefs or argument, only means that the Court has a clear idea of where it wants to go. It does not tell us which way it will go -- or, even, whether the justices are all agreed on what the outcome should be.

Ballots will be printed with Emanuel's name after all?

This does not mean that the Supreme Court will accept Mr. Emanuel's appeal (though it certainly could be taken as an indication that the court may be leaning in that direction, but the Capitol Fax Blog is reporting at this hour that the Supreme Court has stayed the Appellate Court's decision and has instructed the Chicago Board of Elections that if it is going to print ballots while the Supreme Court decides whether to take the case, it must include Mr. Emanuel's name on those ballots.

Here is the emergency motion filed in the Supreme Court.

Linked here is the response to the emergency motion.

Here is the Petition for Leave to Appeal filed on Mr. Emanuel's behalf.

Updating: Here is a link to today's Supreme Court order allowing Emanuel's name to be printed on the ballot.

Residency questions not always clear -- and do not always arise in the context of elections

The Appellate Court's decision yesterday in Maksym v. Board of Election Commissioners, No. 1-11-0033 (the Rahm Emanuel case), has got the Tribune in a positive dither this morning. The paper accuses the Maksym majority of "startling arrogance and audaciously twisted reasoning" and ignoring "more than 100 years of legal precedent" to boot. The Sun-Times is much more temperate -- though it accuses the majority of "employing a rather narrow reading of state law and city ordinance."

Whether Maksym will remain good law will be determined -- soon -- by a petition for leave to appeal already filed in the Illinois Supreme Court.

Contrary to the clear expectations of the newspaper editorialists and the TV talking heads, the Illinois Supreme Court need not weigh in on this case. The Illinois Supreme Court turns away 98 or 99 cases for every one it accepts. Regardless of the merits of his cause, Mr. Emanuel is not automatically entitled to Supreme Court review.

Whether or not review is granted, people should realize that questions of residency (or the related, but not identical, concept of domicile) frequently arise in the courts of this state. There is a lot of law on this subject -- and, contrary to what you may have gathered from this morning's Tribune editorial, figuring out which of these cases may apply in a given case and how to apply those cases is not always easy.

For example, the Illinois Supreme Court just heard arguments (on January 18) in the case of Goodman v. Ward, a case where a candidate for judicial office in a Will County subcircuit was knocked off the ballot because he was not a resident of that subcircuit when he filed for office, though he expressed every intent of moving into the subcircuit before the election. That case turns on the proper construction to be given to sections 11 and 12 of Article VI of the Illinois Constitution.

To cite just one other area of the law, insurance cases are frequently complicated by residency issues. If his parents are divorced, does the child reside with a non-custodial father for purposes of making a claim on the father's underinsured motorist carrier? (See, Coriasco v. Hutchcraft, 245 Ill.App.3d 969, 615 N.E.2d 64 (5th Dist. 1993), for an affirmative answer.)

If an older child drops out of school, takes a job, and moves into an apartment, does he still 'live with' his parents for purposes of an auto liability claim? What if the father signed the lease for his son, and both father and son acknowledged that the son could not make it financially on his own? What if the son was still on his father's health insurance, if he still got his mail at his father's house, if he used his father's address on his driver's license and income tax returns? What if he left many of his possessions behind at his father's house? Is it not as easy a call to make when all of these other facts are considered? (In State Farm v. Taussig, 227 Ill.App.3d 913, 592 N.E.2d 332 (1st Dist. 1992), the Appellate Court found that, despite these additional facts, the son did not 'live with' the father for purposes of the auto liability claim.)

The truth of the matter is that in just about any case involving people, there may be an issue about where those people live or where they intended to live. The fair resolution of these questions may (and usually will) excite strong feelings on either side. A decision in such a case is not 'arrogant' merely because it is adverse.

Saturday, January 22, 2011

Questionnaire responses for 41st Ward aldermanic candidates

Following up on a post I'd done at the end of December (updated a couple of times since) providing links to 41st Ward aldermanic candidates' web sites, Facebook pages, and so forth, I thought I'd search for candidate questionnaire responses.

Herewith, in ballot order, are the results of my search.

If I've missed anything, it is due solely to my lack of skills as an Internet sleuth and not on account of any intended slight. I will be pleased to update this post to add sites I may have missed. Feel free to send me an email or leave me a comment.

Thomas Patrick Murphey
Chicago Sun-Times questionnaire
Chicago Tribune questionnaire

Daniel T. Lapinski
None found

James J. Schamne
Chicago Tribune questionnaire

John Joseph Quinn
Chicago Tribune questionnaire

Mary O'Connor
Chicago Sun-Times questionnaire
ABC 7 questionnaire

Richard Gonzalez
Chicago Sun-Times questionnaire
Chicago Tribune questionnaire

Maurita E. Gavin
Chicago Sun-Times questionnaire
Chicago Tribune questionnaire
ABC 7 questionnaire

George Banna
None found

Barbara Ateca
Chicago Sun-Timesquestionnaire
Chicago Tribune questionnaire

Jim Mullen
Chicago Sun-Times questionnaire
Chicago Tribune questionnaire
ABC 7 questionnaire

Brock Merck
Chicago Sun-Times questionnaire
Chicago Tribune questionnaire

Links to 45th Ward aldermanic candidates

Updated 1/29/11

I recently published a list of links for all aldermanic candidates in my own 41st Ward. Herewith a list of links for candidates in the 45th Ward. Candidates are listed in ballot order and, if sites are omitted, it is solely because of my inadequate computer skills and not because of any intentional omission or intended slight.

I will be pleased to update this as candidates add new sites. Send me an email (there's a link from the Sidebar) or leave a comment.

Don Blair
Don Blair for 45th Ward Alderman (web site)
Aldermanic Candidate Don Blair (Facebook page)
DonBlair45th (Twitter site)
DonBlair2011's Channel (YouTube site)

John Garrido
John Garrido for 45th Ward Alderman (web site)

John Arena
John Arena for 45th Ward Alderman (web site)
John Arena for 45th Ward Alderman (Facebook page)
JohnArena445 (Twitter site)
JohnArena45's Channel (YouTube site)

Anna Klocek
Vote Anna (web site)

Marina Yolanda Faz-Huppert

Marina Faz-Huppert for 45th Ward Alderman (web site)
Marina Faz-Huppert for 45th Ward Alderman (Facebook page)

Bruno Bellissimo
Bruno Bellissimo for 45th Ward Alderman (web site)
Bruno Bellissimo for 45th Ward Alderman (Facebook page)

Michael Fitzgerald Ward
Michael Fitzgerald Ward for 45th Ward Alderman (web site)
Wardforthe45th (Twitter site)

Thursday, January 20, 2011

FOP releases endorsements in aldermanic races

The Fraternal Order of Police - Chicago Lodge No. 7 made an endorsement in the mayoral race yesterday that was a lead story on most TV newscasts.

But the FOP has also released a list of endorsements in several aldermanic contests. That's a link to the .pdf list, posted on the FOP site. "[K]eep in mind," says a statement on the FOP site, linking to the list, "that some candidates did not request the endorsement of the Lodge."

Among the aldermanic candidates endorsed by the FOP are Timothy M. Cullerton in the 38th Ward, Jim Mullen in the 41st Ward, and John Garrido in the 45th.

Wednesday, January 19, 2011

38th Ward candidate forum January 20

Noticed on the Old Irving Park Association website this evening, candidates for 38th Ward Alderman have been invited to appear at a candidate forum on January 20 at 7:00pm at the Irish American Heritage Center, 4626 North Knox Avenue.

Eight candidates are trying to replace former Ald. Thomas Allen, who became a Cook County Circuit Court judge in December. The candidates are (in ballot order):

Timothy M. Cullerton
Tom Caravette
Carmen Hernandez
John R. Videckis
Edmund "Ed" J. Quartullo
Mahmoud Bambouyani
Bart Goldberg
Sheryl M. Morabito

The City Council recently approved Mayor Daley's nomination of Timothy M. Cullerton to the vacancy created by Allen's judicial appointment.

The Old Irving Park Association and the Portage Park Neighborhood Association are co-sponsoring the 38th Ward forum.

45th Ward Candidate forum set for January 26

Per Facebook message received from Meril Miller, a consortium of neighborhood organizations are co-sponsoring a candidate forum for candidates running for Alderman in Chicago's 45th Ward.

The forum is scheduled for Wednesday January 26 at 7:00pm (with, Miller says, a "meet and greet" at 6:30) at the landmark Copernicus Center, 5216 W. Lawrence Avenue. According to the Old Irving Park Association website, Ben Joravsky of the Chicago Reader will serve as moderator.

Candidates vying to replace outgoing Ald. Patrick J. Levar are (in ballot order):

Don Blair,
John Garrido,
John Arena,
Anna Klocek,
Marina Yolanda Faz-Huppert,
Bruno Bellissimo, and
Michael Fitzgerald Ward.

Miller advises that groups sponsoring next week's forum include the Copernicus Center, the Jefferson Park Neighborhood Association, the Portage Park Neighborhood Association, the Old Irving Park Association and the Mayfair Civic Association.