Injustice Watch out with its "Check Your Judges" Guide

I've spent some time today reviewing Injustice Watch's "Check Your Judges" Guide.

The key feature of the Guide is this info button; information (including the ratings offered by every bar association, both the CBA and every Alliance member) is available for every retention candidate and for the two candidates in the one contested judicial election, in the far northwest suburban 13th Subcircuit. Some retention candidates provided questionnaire responses for Injustice Watch; others did not. Where a response was provided, an excerpt is included in the information summary, along with a link to the full candidate questionnaire.

For those who don't want to read all the details about each candidate, Injustice Watch provides these handy symbols. Former public defenders get nice, robust shields; former ASAs get pointed fingers. I'm guessing these are supposed to be accusatory fingers, consistent with a prosecutor's statutory function. Given the editorial bias of the publication, I wonder if a different pointed-finger-symbol might not have been considered.

Of course, I realize that might sound a tad mean-spirited. And I don't mean it that way. It might make me sound a little envious, too, and I suppose I might be: But I also recognize and appreciate what an involved and substantial undertaking this Guide represents.

If you've been following this year's retention election at all, you know that nearly all the members of the retention class have 100% favorable ratings. There are a number of instances where, for a given candidate, Injustice Watch has gone back and documented where a candidate, who now is favorably reviewed, was initially elected with negative or even strongly negative ratings. It has always been the perception that most (not all) judges elected despite bad ratings wind up with good ratings come retention time; Injustice Watch has collected the actual data that backs up this perception.

The little rotation symbol has generated its share of controversy among the retention judges.

Last week, Injustice Watch's Maya Dukmasova tweeted that some judges were "livid" about possible links to old news stories about their decisions. A couple of days before that she had tweeted a question: "Who's a good expert to ask about the meaning of appellate court reversals?"

The problem with considering a trial judge's reversal rate is the implicit assumption that the trial judge who is reversed was wrong... and the Appellate Court was necessarily right.

But if ever the lawyer's clichéd fallback response to almost any question (it depends) applies, it is on the question of whether a judge should be subject to criticism in any given case because a higher court reversed that judge's decision.

The Illinois Supreme Court sits atop the Appellate Court of Illinois in the judicial pyramid, but in any given term it agrees to hear roughly 1% of the cases in which review of an Appellate Court decision is sought. And that dismal figure does not, and can not, take into account the number of disappointed litigants who are dissuaded from even seeking Supreme Court review because of the daunting odds against being accepted for further review.

Thus, our Appellate Court is effectively the court of last resort for Illinois litigants. But just because that court disagrees with a Circuit Court judge in a given case does not mean that the Circuit Court judge really erred. The Appellate Court is not final because it is always right; rather it is only "right" because it is (almost always) final. And a Circuit Court judge who makes decisions with a view toward avoiding reversal in a higher court probably is unworthy of the robe.

Anyone who has handled any significant number of appeals can point to instances where the trial court erred and the Appellate Court failed to correct the error -- at least in the practitioner's opinion. (Funnily enough, I can't recall a single instance where the trial court erred in a way that redounded to my client's benefit and where that judgment was affirmed....) But the bottom line is that Appellate Court panels can err, too, and do.

Also, there really is often no one 'right' answer in any given set of facts. If there were, we could just turn the justice system over to some all-powerful computer (and anyone who has ever watched Star Trek or Dr. Who knows what a bad idea that would be). In many cases, the way the issues are framed determines the outcome -- and reasonable judges can disagree on how the issues should be framed in a given case. It may be that the dispositions of both the trial court and the Appellate Court are reasonable -- but the Appellate Court has the last word.

True story: Some years ago I got involved in a case at the Petition for Leave to Appeal (to the Supreme Court) stage. The trial court had dismissed the case. The Appellate Court had unanimously affirmed in an unpublished Rule 23 Order (the Appellate Court's equivalent of 'nothing to see here, citizens, move along'). But, against all the odds, the Supreme Court took the case and reversed the Appellate Court in a 4-3 decision. (This was certainly not solely due to my efforts; the late William J. Harte handled the argument and signed the brief -- but I did get to drive the car to Springfield and whole paragraphs of my drafts were included in the final product.)

Anyway, in due course, the case made its way back to the Circuit Court of Cook County, and, when the defendant brought another motion to dismiss, I wound up appearing before the judge who'd originally dismissed it. The trial court made a point of telling me that six out of 10 reviewing court judges had viewed the case as she had -- and she was not wrong.

Earlier today, in promoting the release of the Guide, Dukmasova tweeted that the Guide "takes thousands of hours of our team's time to research." I believe it. And I believe it shows, too.

But I can't imagine how many more hours would be necessary to fairly evaluate whether a given judge really should be criticized because of the number of times that judge was reversed -- even if that judge was (as Dukmasova also tweets) reversed more than twice as often as that judge's next-most-reversed peers. Reversals alone do not make a judge unworthy of retention. Even if those reversals are occasionally accompanied by a 'bench slap' that gets picked up by a reporter.

With that caveat, the Injustice Watch "Check Your Judges" Guide is a valuable tool and well worth the consideration of the voter looking for help in navigating the retention ballot.