Thursday, March 23, 2023

Why the "Weeping Angels" method of passing legislation works in Illinois -- and what may be done about it

I have here complained, futilely, from time to time, about the breathtaking speed with which significant leglislation zips through the Illinois Leglislature, in the closing hours of a legislative session, in the dead of night, free of all public scrutiny.

I have even offered a case study or two, illustrating the process. This one remains my favorite:
This was how SB 825 began its legislative life before massively mutating into PA 102-0015, a behemoth more than 440 pages long, which (among many other things) moved last year's primary from March to June. And, as laid out in my linked June 3, 2021 article, it almost all happened on May 31 of that year, as the legislative session was ending.

Indeed it seems that this is the only way the General Assembly actually passes major legislation these days.

I was reminded of that unhealthy reality when, earlier this month, I listened to the oral arguments before the Illinois Supreme Court in the SAFE-T Act case, Rowe v. Raoul, No. 129248 (you can find the parties' briefs and more on the Supreme Court's high profile cases page). One of the Appellees' attorneys made a snide, though passing, reference to the fact that the SAFE-T Act was also passed in the dead of night, in the dying moments of the legislative session. It was just a statement of fact, apparently not urged as a grounds for affirmance.

The legislative cognoscenti must chortle when they see well-meant, earnest articles like "How to Support or Oppose a Bill in Illinois," which appeared recently in a BGA newsletter, or the recent article in the Chicago Daily Law Bulletin about pending legislative deadlines. As if any of that stuff matters, they must chuckle, knowing there are any number of shell bills locked and loaded, ready for 100% "amendment" when the time comes.

So how do they get away with this? Why is it allowed?

The bitter and the cynical may see this as just another consequence of one-party rule.

But these late-night, last minute legislative lalapaloozas are entirely unnecessary if merely steamrolling The Other Side is the goal. That's what veto-proof majorities are for.

Nor should anyone think for a nanosecond that The Other Side would not take advantage of the same procedure if the situation were reveresed. If some member of The Other Side could be found, he or she might sputter furiously that they would never do such a thing. But don't be fooled: Using and abusing the levers of power wherever and whenever possible are among the last areas of true, bipartisan agreement. Tactics are only wrong or bad when THEY do it; when WE do it, it's just smart politics. See, e.g., gerrymandering.

It has been ever thus ever since the Optimates and the Populares battled, eventually quite literally, for control in the Roman Republic. There was some precedent, however shaky, in the mos maiorum, the tangled web of myth and history that served as Rome's unwritten constitution, for every office created or abolished, for every prosecution undertaken or thrwarted, and for every increasingly violent outrage perpetrated by The Other Side. Just as there was precedent for every even more violent response to said outrage. This is why the Founding Fathers immersed themselves in Roman history: They were seeking to put the American Republic on a firmer, safer, more lasting footing. More specifically, this is a primary reason why we have written constitutions in this country; it wasn't just the constitutional excesses of King George that animated the Founders, they were also thinking of those committed by Lucius Cornelius Sulla, Gaius Marius, and (of course) Marius' nephew, Julius Caesar. It's a shame we don't study that stuff anymore.

But we do still (allegedly) study constitutions.

And the place to start, when trying to understand why the Weeping Angels method of passing legislation is permitted, is Article IV, Section 8 of the 1970 Illinois Constitution. Section 8 provides:
 (a)  The enacting clause of the laws of this State shall be: "Be it enacted by the People of the State of Illinois, represented in the General Assembly."
 (b) The General Assembly shall enact laws only by bill. Bills may originate in either house, but may be amended or rejected by the other.
 (c) No bill shall become a law without the concurrence of a majority of the members elected to each house. Final passage of a bill shall be by record vote. In the Senate at the request of two members, and in the House at the request of five members, a record vote may be taken on any other occasion. A record vote is a vote by yeas and nays entered on the journal.
 (d) A bill shall be read by title on three different days in each house. A bill and each amendment thereto shall be reproduced and placed on the desk of each member before final passage.
   Bills, except bills for appropriations and for the codification, revision or rearrangement of laws, shall be confined to one subject. Appropriation bills shall be limited to the subject of appropriations.
    A bill expressly amending a law shall set forth completely the sections amended.
    The Speaker of the House of Representatives and the President of the Senate shall sign each bill that passes both houses to certify that the procedural requirements for passage have been met.
One might think that the first sentence of §8(d) would outlaw the Weeping Angels approach -- a wholly new, mutated bill, one that has gone, say, from a single page to more than 440 pages, could not be read, even by title, on three different days in each house, especially if the 100% amendment and final passage take place on the same day. But then the impact of the last sentence of §8(d) must be considered: "The Speaker of the House of Representatives and the President of the Senate shall sign each bill that passes both houses to certify that the procedural requirements for passage have been met." Even in cases of obvious disregard for the three-readings rule, once these worthies sign off, is all inquiry into constitutional infirmity foreclosed? Must Illinois indefinitely suffer the Weeping Angels method of passing legislation?

The answer given by the case law -- for now -- is most definitely "yes." But there may be hope for the future.

Let's address the settled law first.

In Benjamin v. Devon Bank, 68 Ill.2d 142 (1977), the Illinois Supreme Court considered the constitutionality of a provision tucked in an appropriations bill that would have prevented funds appropriated by the bill from being used "for the opening and staffing of an Unemployment Insurance, Employment Service or Work Incentive office if the office space or facility rented is located within 500 feet of a school in any city with a population over 1,000,000."

So... this was a provision designed to torpedo the opening of one particular office in one Chicago neighborhood, an office which the State had already leased shortly before the appopriations bill was thus amended. The North Town Community Council and a few of its members sued to enjoin the opening of the office, citing this provision. It was almost as if the whole thing was set up in advance....

The Circuit Court of Cook County held the appropriations act and "particularly" the anti-office-opening provision to be "valid and effective and issued the injunction." (68 Ill.2d at 148.)

On direct appeal, the Supreme Court reversed.

The Court's ultimate reason for reversal was that the office-torpedoing provision [§5.1] "purported to change the existing general substantive law, that it was therefore itself substantive in nature, and could not be included in the appropriation bill" (68 Ill.2d at 148). Section 5.1 was in direct conflict with this sentence of §8(d) of Article IV: "Appropriation bills shall be limited to the subject of appropriations."

But the published opinion represents the Supreme Court's second stab at a disposition. In its original opinion the Court "held that section 5.1 violated section 8(d) of article IV for the reason that it was a restriction on the location of facilities to be used by the Department of Labor and was not limited to the subject of appropriations" (68 Ill.2d at 144). After granting plaintiffs' petition for rehearing, the Supreme Court allowed "a majority of the party leadership of both houses of the General Assembly, the leadership on the appropriations committees, and other concerned members of both houses representing both major political parties" to appear as amici (68 Ill.2d at 144, emphasis mine).

The aggrieved legislators argued that "the 'certification' or 'enrolled bill' provision of article IV, section 8(d) [the last sentence of that provision, quoted above] precludes judicial inquiry concerning compliance with [all] the requirements enumerated in section 8(d)" (68 Ill.2d at 145).

To evaluate this contention, the Supreme Court reviewed the relevant proceedings of the 1970 Constitutional Convention (68 Ill.2d at 145-147). This is the key quotation (68 Ill.2d at 145):
Presently [under the 1870 Constitution] Illinois has the 'journal entry' rule as distinguished from an 'enrolled bill' rule. It is proposed that Illinois adopt the 'enrolled bill' rule.

The 'journal entry' rule means that a piece of legislation can be challenged in the courts by pointing to a defect in its passage as reflected in the journal. Under this rule, a statute [duly] passed by the General Assembly and signed by the Governor may be attacked in the courts, not necessarily on its merits, but on some procedural error or technicality found in the legislative process. The 'journal entry' rule, as a result, leads to complex litigation over procedures and technicalities.

The 'enrolled bill' rule would provide that when the presiding officers of the two houses sign a bill, their signatures become conclusive proof that all constitutional procedures have been properly followed. The 'enrolled bill' rule would not permit a challenge to a bill on procedural or technical grounds regarding the manner of passage if the bill showed on its face that it was properly passed. Signatures by the presiding officers would, of course, constitute proof that proper procedures were followed.
The bipartisan legislative amici argued that §8(d) should be read as five procedural requirements, so that the signatures of the House Speaker and Senate President were sufficient to preclude judicial inquiry on any of those topics.

The Benjamin court, however, noted that Con-Con's Committee on the Legislature did not consider all the requirements of §8(d) to be merely procedural. It quoted the committee's report on the "single subject" rule (68 Ill.2d at 147):
"Since the judicial branch may review challenges that the 'single subject' rule has been violated, both members of the General Assembly and the public retain sufficient protection from a provision in a bill which may be unrelated to the overall thrust of the bill." 6 Proceedings 1386.
The Benjamin court explained that the purpose of the "enrolled bill" rule "is to preclude impeachment of a bill 'certified' in accordance with section 8(d) by use of the Senate and House journals to show legislative noncompliance with constitutionally mandated procedural requirements. Examination of the journals is not necessary, however, to test the General Assembly's compliance with either the "single subject" or the "subject of appropriations" requirement of section 8(d), and we have reviewed statutes to determine legislative compliance with these requirements."

The Supreme Court returned to the "enrolled bill" rule in Polich v. Chicago School Finance Authority, 79 Ill.2d 188 (1980), a rare case which the court accepted as an original action pursuant to Supreme Court Rule 381.

Among the many constitutional defects urged by several objectors to the Legislature's creation of the Chicago School Finance Authority in P.A. 81-1221 was that it "could not, as required by article IV, section 8, of the Constitution, have been read 'on three different days in either house for the reason that it is obvious that it came into existence and 'traversed the whole legislative process in one day, January 11, 1980'" (79 Ill.2d 208-209).

Sound familiar?

The Supreme Court summarized the objectors' complaint on these grounds as follows (79 Ill.2d at 209):
House Bill 1264 [as] filed in March 1979 dealt solely with the retirement age of certain school personnel. It was at that time entitled "An Act to amend the School Code." It was read on three different days in the House, passed the House, and was sent to the Senate. In the Senate it received a first reading and was assigned to committee. On January 9, 1980, the bill was discharged from committee and given its second reading in the Senate. On January 11, 1980, everything but the title and the enacting clause was deleted from House Bill 1264 and the contents of what became Public Act 81-1221 were substituted. On that same date House Bill 1264 was given two readings in the Senate, passed the Senate, and was sent to the House, which passed it as received. Subsequently it was approved by the Governor. Petitioners argue that the foregoing procedure "is such a wilful and gross violation of article IV, section 8(d) that no categorization of these actions as being merely 'procedural' and as somehow absolved by the 'enrolled bill' rule seems adequate under the circumstances."
Quoting the Con-Con proceedings set out in the Benjamin case, the Polich court stated (79 Ill.2d 211-212), "This case is distinguishable from Benjamin in that the alleged defect argued by petitioners would require examination of the Journal, whereas in Benjamin, failure to comply with the constitutional provision was apparent from the face of the bill. The enrolled bill rule is clearly applicable here, and we hold the legislation was properly enacted."

The enrolled bill rule was reaffirmed in People v. Dunigan, 165 Ill.2d 235 (1995) (rejecting a three-readings rule challenge to an habitual criminal statute), and in Geja's Cafe v. Metropolitan Pier and Exposition Authority, 153 Ill.2d 239 (1992) (rejecting a challenge to an amendment to the Metropolitan Pier and Exposition Authority and a tax ordinance enacted by the Authority pursuant to that amendment).

But the Geja's Cafe court fired a warning shot across the Legislature's bow. While the court declined plaintiffs' "persuasive argument" urging the Court to "abandon the enrolled bill doctrine because history has proven that there is no other way to enforce the constitutionally mandated three-readings requirement," the Court also cautioned that, if "the General Assembly continues its poor record of policing itself, we reserve the right to revisit this issue on another day to decide the continued propriety of ignoring this constitutional violation" (153 Ill.2d at 260).

The Geja's Cafe court noted that the Framers of the 1970 Constitution did not anticipate that the Weeping Angels method of passing legislation would become dominant. In Geja's Cafe, the Supreme Court stated that the Framers "enacted the enrolled bill doctrine on the assumption that the General Assembly would police itself and judicial review would not be needed because violations of the constitutionally required procedures would be rare. '[W]e determined, in accordance with many other states that have adopted the enrolled bill rule and have found no difficulties, that * * * if they were to commit any fraud or chicanery, the legislature would certainly take care of them.' 4 Proceedings 2881." However, the Court stated, "it is apparent... that the General Assembly has shown remarkably poor self-discipline in policing itself. Indeed, both parties agree that ignoring the three readings requirement has become a procedural regularity." (153 Ill.2d at 260.)

Things have not improved in the subsequent 30 years, as the Supreme Court has, from time to time, noticed.

In Cutinello v. Whitley, 161 Ill.2d 409, 425 (1994), the Court refused to revisit the enrolled bill rule, although requested to do so, because "judicial review of legislative procedure would raise a substantial separation of powers concern." More recently, in Friends of Parks v. Chicago Park District, 203 Ill.2d 312, 786 N.E.2d 161, 171 (2003), the Court stated, "We noted in Geja's Cafe and again in Cutinello that the legislature had shown remarkably poor self-discipline in policing itself in regard to the three-readings requirement. [Citations.] The same poor self-discipline is alleged to have occurred in this case. The record below has not, however, been sufficiently developed to support or contradict this claim. Nevertheless, because this court is ever mindful of its duty to enforce the constitution of this state, we take the opportunity to urge the legislature to follow the three-readings rule. While separation of powers concerns militate in favor of the enrolled-bill doctrine (see Cutinello, 161 Ill.2d at 425, 204 Ill.Dec. 136, 641 N.E.2d 360), our responsibility to ensure obedience to the constitution remains an equally important concern."

In Doe v. LYFT, Inc., 2020 IL App (1st) 191328, the Appellate Court was asked to answer two certified questions, namely, "(1) whether section 25(e) [of the Transportation Network Providers Act] exempts ridesharing companies from the heightened duty of care and standard of vicarious liability that apply to common carriers and (2) if so, whether section 25(e) violates the Illinois Constitution's ban on special legislation (Ill. Const. 1970, art. IV, § 13) or whether the Act itself was passed in violation of the Illinois Constitution's three-readings rule (Ill. Const. 1970, art. IV, § 8 (d))" (2020 IL App (1st) 191328, ¶1).

This was anything but an academic inquiry: Plaintiff Doe alleged that she was sexually assaulted by a knife-brandishing Lyft driver who was supposed to be driving her home. But when she sued Lyft, the company moved to dismiss arguing that it had no vicarious liability for the driver's conduct. Doe countered that Lyft could be liable as a common carrier which owed its passengers a heightened and nondelegable duty of care. But Lyft, in reply, invoked §25(e) which "declares that transportation network companies (or TNCs) and their drivers 'are not common carriers, contract carriers or motor carriers, as defined by applicable State law, nor do they provide taxicab or for-hire vehicle service.'" (2020 IL App (1st) 191328, ¶¶3-8.)

Doe noted that the bill that ultimately became the Transportation Network Providers Act began life in the Illinois Senate as "an unrelated bill to amend the Illinois Public Accounting Act." In this guise, SB 2774 sailed through the Senate and thence to the House, where it was read twice. (2020 IL App (1st) 191328, ¶52.) The opinion does not state whether SB 2774 was shelved for any period of time following its second reading in the House or, if so, for how long, but it does say that, after its second reading in the House, SB 2774 was amended by removing everything after the enacting clause and substituting the text of what eventually became the Transportation Network Providers Act. The newly reconstituted SB 2774 was read once more before being passed by the House and then returned to the Senate where it was debated and passed the same day" (2020 IL App (1st) 191328, ¶52, emphasis mine).

The Doe court rejected the three-readings challenge to the constitutionality of §25(e), relying, as it was bound to do, on the enrolled bill rule (2020 IL App (1st) 191328, ¶¶53-55). The Appellate Court noted that the Supreme Court "has lamented the General Assembly's 'remarkably poor self-discipline in policing itself in regard to the three-readings requirement' [Citation] and has 'reserve[d] the right to revisit' the enrolled-bill doctrine if the legislature's noncompliance persists [Citation]. Whether that time has come is a question only the supreme court can answer" (2020 IL App (1st) 191328, ¶55). But, the Doe court noted, "Doe has appropriately preserved the issue" for Supreme Court review.

And, for a time, it seemed as if the Supreme Court might be poised to revisit the enrolled bill rule; it accepted a PLA in the Doe case (No. 126605). But the case was settled before the Supreme Court disposed of the appeal.

So the enrolled bill rule still protects Weeping Angels legislation.

But maybe not forever.

Weeping Angels legislation may provide a nifty way to pass bills without pesky scrutiny from the press or public. Maybe, in some cases, this method provides an expedient means to pass socially significant, progressive legislation that might otherwise stall in a contentious legislative process. But the repeated and flagrant violation of the Illinois constitution can only undermine public confidence in the legislature. And courts that continue to countenance these constitutional shenanigans risk a loss of public confidence as well.

Violation of the three readings requirement should be raised as an additional grounds, where applicable, when the validity of any statute is challenged. As for the rest of us, we should at least demand that our elected representatives adhere to the express requirements of the Illinois Constitution that each has sworn to uphold. That shouldn't be too much to ask, right?

Monday, March 20, 2023

BREAKING: 22 new Cook County associate judges named

FWIW has learned that the winners have been announced in the current associate judge selection process.

The 22 new associate judges are:
  1. Mohammad Abedelal Ahmad
  2. Hilda Bahena
  3. Jerome Celis Barrido
  4. Sunil Shashikant Bhave
  5. Nicole Castillo
  6. Jennifer Frances Coleman
  7. Torrie Luciana Corbin
  8. Athena James Frentzas
  9. Michele Ann Gemskie
  10. Lakshmi Elkhanialy Jha
  11. Sharon Arnold Kanter
  12. Edward James Maloney
  13. Scott Norris
  14. Michael Nando Pattarozzi
  15. Mary Anna Planey
  16. Brian Randall Porter
  17. Mariano Ricardo Reyna
  18. Pamela Saindon
  19. Natosha Cuyler Toller
  20. John J. Tully
  21. Scott William Tzinberg
  22. John Wellington Wilson

Wednesday, March 15, 2023

Early Bird pricing ends today for 2023 Future Is Now: Legal Services Conference

The Illinois Supreme Court Commission on Professionalism, which is sponsoring this virtual event, warns that space is limited for the upcoming Future Is Now: Legal Services Conference (to be held, via "Hopin", on a screen near you from noon to 5:00 p.m. on April 20).

Wait a minute.... Space is limited at a virtual event? It can't be for the "TED-like talks"; it must have something to do with the "interactive town hall discussions from legal industry thought leaders."

Supreme Court Chief Justice Mary Jane Theis will speak first at the event. Other topics and speakers include:
Building a Client-Centered Business Model. Mark Britton (Advisor to Clio, Clearbrief, and Tangibly; Founder of will discuss how to build a client-centered business model that enables attorneys to address the overwhelming number of legal problems that go unmet.

Developing Cultural Competency to Serve Clients. Nkoyo-Ene Effiong Lewis (Director of Law Practice Management Program, State Bar of Georgia) will speak to how lawyers can more effectively serve clients and build their practices by embracing cultural differences and increasing their cultural competency.

Advocating for Your Mental Health & Well-Being as an Attorney. Kara Hardin (Chief Executive Officer, The Practice Lab) will teach attorneys how to advocate for their mental health and well-being at work, why the “Performance Paradox” impedes legal practice, and how system-based interventions (like trauma-informed lawyering) can promote attorney wellness and overall success.

Civility in Legal Practice: Why it Matters. This panel discussion will focus on the theoretical, practical, and public implications of civility in the legal profession. The panel will include perspectives on navigating and responding to incivility from judges and practicing attorneys including:
  • Deborah Enix-Ross, President of the American Bar Association
  • Justice Sharon O. Johnson, Illinois First District Appellate Court
  • Nathan B. Hinch, transactional/litigation attorney at Meyer Capel in Bloomington, Ill.
Attendees are eligible to receive 4.0 hours of professional responsibility CLE credit, including 1.0 hour of diversity and inclusion CLE credit and 1.0 hour of mental health and substance abuse CLE credit.

Today (March 15), the price of admission is $30.

Tomorrow, however, the price increases to $50.

To register, click here.

Monday, March 13, 2023

Children's Endowment Fund Dinner Thursday evening

The Justinian Society of Lawyers will hold its Children's Endowment Fund Dinner on Thursday, March 16 at the LUXBAR, 18 East Bellevue. A cocktail reception will start at 6:00 p.m.; dinner will follow at 7:00 p.m.

Tickets are $90 each for non-members ($80 for members and $60 for students) and are available via this link on the Justinian website.

The mission of the Justinian Children's Endowment Fund is to assist and aid disadvantaged or disabled children, without regard to ethnicity, race, or religion.

Friday, March 10, 2023

Northern District of Illinois announces application process for Magistrate vacancy

The United States District Court for the Northern District of Illinois is accepting applications for a full-time United States Magistrate Judge position in the Eastern Division, "with the Everett McKinley Dirksen United States Courthouse at Chicago, Illinois as the duty station."

Duty station? The Court has used this term before. Is this we should call courthouses now?

The deadline for applications for the current vacancy is March 28, 2023 at 5:00 p.m. The announcement of the new vacancy specifically provides that "all applicants for the vacancy that closed on November 23, 2022 will be automatically considered this vacancy."

Applications will be evaluated by a "Merit Selection Panel composed of attorneys and other members of the community." The panel will "recommend to the judges of the Court, in confidence, a list of the persons whom it considers best qualified." The judges of the Court, in turn, will make the final appointment, "subject to a Federal Bureau of Investigation full-field investigation and Internal Revenue Service tax check." All applications will be kept confidential, and will be examined only by members of the Merit Selection Panel and the district judges of the Northern District of Illinois.

Applicants for this vacancy must:
  1. be, and have been for at least five years, a member in good standing of the bar of the highest court of a State, the District of Columbia, the Commonwealth of Puerto Rico, or the Virgin Islands of the United States, and have been engaged in the active practice of law for a period of at least five years;
  2. be competent to perform all of the duties of the office; be of good moral character, emotionally stable and mature; be committed to equal justice under the law; be in good health; be patient and courteous; and be capable of deliberation and decisiveness;
  3. be less than seventy years of age; and
  4. not be related to a judge of the district court.
And there is one further requirement: "All new employees must be fully vaccinated (i.e., at least 2 weeks after last dose) for COVID-19 and, prior to the starting with the Court, present proof of vaccination or submit a request in writing for an exemption to this requirement on the basis of a sincerely held religious belief or medical condition."

The pay is good -- the present annual salary for a United States Magistrate Judge is $213,992 -- and the retirement plan is even better: A magistrate who reitres after turning 65 and serving 14 years in the position, whether continuously or not, gets an annuity equal to the salary being received at the time the United States Magistrate Judge leaves office.

Further details, and the application itself, are available at this page of the Northern District's website.

Tuesday, March 07, 2023

Guest Post: Dr. Klumpp takes a look at 2022 judicial campaign spending

FWIW is pleased to present this Guest Post by Albert J. Klumpp, a generous and frequent contributor to FWIW over the years, a research analyst with a public policy PhD, and the author of several scholarly works analyzing judicial elections.

by Albert J. Klumpp

Our final piece of business in examining Cook County’s 2022 judicial election cycle is a look at the campaign spending numbers. As in, how much was spent, who spent it, and how it all compares to previous cycles.

The 75 candidates who sought one of the county’s 29 judicial vacancies spent a total of $8,028,433 on their campaigns. Except for one November contest involving two candidates in the 13th Subcircuit, all of that total was spent for the June primary.

For the two Appellate Court vacancies, five of the six candidates reported totals of between $123,281 and $236,262. Raymond Mitchell was the highest spender; Devlin Schoop was the lowest (filed ISBE documents but reported $0 in spending).

For the 26 candidates for countywide Circuit Court vacancies, the median spending amount was $72,744. Rena Marie Van Tine was the biggest single spender at $317,879; this was the fifth-highest total for a countywide candidate since 1980, but was well short of the top four, each of whose inflation-adjusted totals exceeded $400,000 (Jack Hagerty 2018, Martin Leavitt 2000, Kerrie Maloney Leytin 2020, Chris Stacey 2020). The top ten countywide spending totals for 2022:
As for the subcircuits, the median spending amount for the 43 candidates who sought subcircuit vacancies was $50,840, slightly less than that of the countywide candidates. But as has become typical, certain individual contests produced some remarkable numbers.

The single most-watched subcircuit contest took place in the 4th Subcircuit and involved ShawnTe Raines-Welch, the wife of the current Illinois House Speaker. Not surprisingly, Ms. Raines-Welch was able to mount a substantial campaign, and ended up spending $697,356 during the primary cycle (and, as the chart below indicates, just a bit more besides for the uncontested general election). This easily outdistanced the previous record high for a subcircuit primary campaign (James Shapiro in 2018, inflation-adjusted to $574,619).

And yet... Ms. Raines-Welch is not the new record-holder. That distinction belongs to Stephen Swedlow, who faced one opponent in an 8th Subcircuit contest and spent a whopping $719,637. Roughly two-thirds of that amount was reported as direct mail costs, with smaller amounts spent on both robocalls, digital advertising, and consulting.

The top ten subcircuit spending totals:
As for the larger significance of these numbers: A few years ago, in an article for the CBA Record*, I presented an analysis of spending numbers covering candidates from 1980 through 2018. I showed how spending had trended upwards significantly in the decades of the 2000s and 2010s compared to the 1980s and 1990s. The decade of the 2020s has only two completed election cycles so far, so any sort of larger comparison to previous complete decades is premature. But as the following graph shows, there is no reason to think that the gradual increase in spending is leveling off.

Median Spending By Decade, Cook County Judicial Candidates (excluding Supreme Court candidates):
Finally, the usual fine print. The amounts reported here come from a review of every quarterly campaign finance report filed with the Illinois State Board of Elections by every candidate. The totals include items reported as in-kind contributions, and exclude items that are not directly relevant to the vote-getting objective of the campaign (for instance, loan repayments that are technically required to be reported as expenditures). All pre-2022 totals were adjusted for inflation basic standard Consumer Price Index data provided on Federal Reserve Bank websites.

*  "Campaign Spending in Cook County Judicial Elections," CBA Record, Vol. 33, No. 6, p. 30 (Nov/Dec 2019).

Dr. Wilson's campaign spending provides a cautionary tale for the would-be judicial candidate

I can only imagine what admixture of altruism and ambition courses through the veins of Dr. Willie Wilson (that's a screen shot of a recent Wilson Tweet above). Even if I had twice his money, I doubt that I'd be half so eager to go back out and start dishing out dough to an ungrateful electorate had it rejected me as thoroughly as it rejected Dr. Wilson in last week's Chicago mayoral primary.

In that sense, certainly, Dr. Wilson is a better man than I could ever be. And God bless him for it.

But whatever your opinion of Dr. Wilson, or his policies, or his giveaways, his several unsuccessful campaigns provide a cautionary tale for the would-be judicial candidate.

Wilson provides an extreme example of the old adage: No matter how much money you, the candidate, may have to spend, there's always someone around to spend all of it... and more besides. And the equally awaful corollary of that old adage: Spending money, even spending money by the bushel, does not guarantee victory.

Political consulting is one of the last bastions of caveat emptor. There's no regulation and, sometimes, seemingly, no shame. That is not to say there is no value in the consultant's work. There can be. The good consultant knows everyone and gets along with most. The good consultant can take a decent lawyer with limited political instincts and make him or her a judge.

And if a consultant occasionally fleeces a well-heeled candidate just to pay the bills, you, the prospective candidate, must understand that the candidate also needs his or her share of winners. No consultant is going to secure your business by telling you all the losing campaigns he or she has run, or helped run. If the consultant has a web site, it will boast about all the winners he or she has helped; the consultant's sales pitch will invite you to imagine yourself in this select company.

That's where the consultant wants you to be. The consultant, no less than the Democratic Pary of Cook County, is shopping for winners. You may be a lump of unfinished clay, but the consultant soliciting your business thinks he or she can mold you into something electable. You are not just buying a consultant's service, the consultant is trying to buy you, too.

You will notice, as you investigate those consultants that maintain a web presence (and many do not), that consultants often indicate that they will only work with those who share their worldview. They are quite selective (the ones who don't advertise may be even more so). I'm not saying you have to be an ideological soulmate in order to be taken on by a consultant, but if he or she uses all the progressive buzzwords of the moment and you are a Trumper, chances are pretty good that you will not connect. Even if you have a lot of money to spend. Remember, the consultant knows everyone and gets along with most -- and, for a consultant in Cook County, these relationships would surely be strained by taking on a Trumper.

(And, yes, there are conservative consultants, too -- but how could one help you in Cook County?)

Also, remember always, there is another side to this: I've heard from aggrieved consultants who lament that they lost this campaign or that one because they were obliged to follow their candidate's instructions. The candidate rejected the consultant's expert advice and insisted on dictating a strategy that worked for the candidate's mentor, who got elected to the bench 30 years ago.

There may be more than excuse-making in these sorts of complaints.

I don't want to overgeneralize: It is probably unfair to say that all lawyers are control freaks. At least some, surely, are merely micromanagers.

However, dear Prospective Candidate, when you give someone the keys to the car, you really do have to let them take the wheel.

Within reason, anyway.

Many of the consultants you may encounter will have cut their teeth on aldermanic or state legislative campaigns. These are, and should be, more rough-and-tumble affairs than judicial campaigns. Tactics that may seem acceptable, or at least all too common, in other races should be viewed with skepticism (and, in my opinion, revulsion) in judicial campaigns.

Remember, Prospective Candidate, it is your reputation that is at stake in your campaign, more so than the consultant's. The consultant will find other sheep to shear. Or, if things get really tough, he or she will seek a sinecure in some public agency. Meantime, listen to what the consultant recommends. Even though your great friend Judge Smith did not have to do what the consultant suggests, the consultant knows more about how to get elected today. That's the reason to pay the consultant in the first place.

Just remember, even if you do not win a robe in this campaign, you will still have your reputation. Get it back from the consultant at the end of the campaign, win or lose, as intact as it was when you started the campaign. Don't let the consultant risk your hard-earned reputation by doing something that makes your moral compass start spinning wildly.

Running for judicial office is often a process -- more than one campaign may be necessary (and, indeed, should ordinarily be expected).

In political campaigns as in so many other things, your results do not come simply from what you spend, but from how you spend it. From what you buy.

Caveat emptor.

On the subject of judicial candidates spending money, FWIW is pleased to announce that Dr. Albert J. Klumpp has completed his look into 2022 campaign spending numbers. His guest post on this topic will appear later today. Please stand by.

Monday, March 06, 2023

Some job security for incoming class of Cook County Associate Judges....

Until last week, Supreme Court Rule 39(a)(1) provided, in pertinent part, "The terms of all Illinois associate judges in office expire on June 30th of every fourth year subsequent to 1975, regardless of the date on which any judge is appointed."

No need to count on your fingers here... the last such "fourth year subsequent to 1975" was 2019, when 386 of the 391 associate judges statewide who asked for new terms were retained in office. (To be retained, associate judges must be retained by a vote of three-fifths of the sitting full circuit judges in their respective circuits.)

As the linked post relates, the 17 Cook County associate judges who had just been sworn in on June 29, 2018 were all compelled to seek retention in 2019 (they were all retained). But that was a pretty quick turnaround. It's easy for those of us on the outside to say that no anxiety was warranted... but I'd be astounded if at least some of the newly-minted jurists weren't just a little anxious anyway.

I won't ask lawyers to do math here -- most lawyers really can do some math besides dividing by 3, the old joke notwithstanding, but I'll just come right out and say it: 2023 is another of those fourth years subsequent.

The 22 Cook County associate judges who will presumably be sworn in next month were looking at a guarantee of only 10 weeks (or so) in the job before having to face a retention vote. If some in the Class of 2018 were apprehensive, imagine how much more the incoming group might be... especially since the last possible date on which to seek reappointment specified by Rule 39(c) might have expired before the current Short List was winnowed down.

But the Supreme Court has come to the rescue. In an order entered March 1, the Supreme Court amended Rule 39. Specifically, the first sentence of Rule 39(a)(1) now reads, "The terms of all associate judges in office shall expire on June 30th of every fourth year subsequent to 1975, unless the associate judge is appointed after April 1st during the reappointment vear and thereby subject to reappointment in the next quadrennial reapportionment period." And, of course, Rule 39(c) has been amended in conformance.

H/T to Jennifer Bae for calling my attention to this one.

Thursday, March 02, 2023

Chief Justice Theis announces application process for three Cook County judicial vacancies

In a press release issued yesterday, Illinois Supreme Court Chief Justice Mary Jane Theis announced that the Court will accept applications through 4:00 p.m. on March 30, 2023 for three countywide vacancies in Cook County.

These vacancies exist pursuant to the retirements of Judges Vincent Gaughan, William Raines, and Lorna Propes.

Only one application is required in order to be considered for any of these three vacancies.

These are temporary appointments that will expire on the first Monday of December 2024, when persons elected to these vacancies will take office.

Of course, appointees may be have an inside track for slating by the Cook County Democratic Party for the very vacancies they fill. It has happened in the past. It hasn't always.

Moreover, appointees, slated or not, will have the advantage of incumbency heading into the 2024 primary -- at least, it can be an advantage. Here, too, things do not always work out that way.

Persons interested in any of these appointments must submit an application (by no later than March 30 at 4:00 p.m. -- that's for folks with short attention spans -- and, yes, that is a link to the application).

Eligible persons are invited to apply even if they do not have current judicial evaluations. Applicants not already in possession of current ratings will be screened by the Chicago Bar Association and the Alliance of Bar Associations. Aspirants who have current ratings should include these with their applications..

Further review will be conducted by a special judicial screening committee that Justice Theis established in 2013 and revamped in 2021. To be eligible for consideration for appointment, applicants must be a lawyer in good standing licensed to practice law in Illinois and a resident of Cook County.

Completed applications should be sent to