CBA reconsiders O'Malley rating; Wright rating still "Pending" as of Saturday, Nov. 2

By now, everyone who regularly follows Cook County judicial elections knows that, on October 2, Injustice Watch published a story about two retention candidates, Judges Shannon O'Malley and E. Kenneth Wright, Jr., "Two Cook County judges claim homestead exemptions in Will County." The story, by Kelly Garcia and David Jackson, makes the case that neither Judge O'Malley nor Judge Wright actually live in Cook County. (My column about the controversy is here, if you haven't already read it.)

That phrase -- "everyone who regularly follows" -- translates, I realize, to only a small percentage of the electorate. The Injustice Watch story got significant coverage beyond our little "Everyone Who Regularly Follows" community, thanks to that publication's partnerships with other, broader-based outlets like the Chicago Sun-Times (which republished the story).

For us here in the EWRF community, the story about the Injustice Watch article was the impact of that article on the just-released or just-about-to-be-released ratings of the Chicago Bar Association and the 13-member Alliance of Bar Associations for Judicial Screening.

That's a difficult story to properly report because judicial candidate evaluations are confidential -- and should be confidential. We can report when a rating is 'pulled' or when a rating is changed or, when as happened here, two bar associations that release narrative explanations of all their retention judge ratings, the Illinois State Bar Association and the Chicago Council of Lawyers, refer to the Injustice Watch reporting in their evaluations.

For what it's worth, after consideration of the residency issues raised by Injustice Watch, the ISBA and CCL reached different conclusions about whether Judge Wright should be retained. The Council recommends a "Yes" vote on Judge Wright, stating, in pertinent part:

It was recently reported that Judge Wright claims a senior homestead tax exemption on a residence in Will County, Illinois, while maintaining residency in Cook County for purposes of meeting residency requirements to be a judge of the Circuit Court of Cook County. Judge Wright fully participated in the Alliance’s investigation process concerning this matter, and reported that he has corrected his tax exemption status.

Judge Wright's forthright handling of the matter, coupled with a strong history of professionalism on the bench, leads the Council to find him Qualified for retention.

On the other hand, the ISBA recommends a "No" vote on Judge Wright, stating, again in pertinent part, "The [Judicial Evaluation] Committee has concerns regarding his level of candor concerning the recently identified residency and property tax homestead issues."

Both the Council and the ISBA issued negative evaluations regarding Judge O'Malley's retention; the Injustice Watch report is not specifically mentioned in either of their narratives. On its website, however, the CCL that it "takes no position on the question of Judge O’Malley’s residency because we are recommending against his retention for judicial performance reasons."

The Chicago Bar Association had issued "Yes" recommendations for both O'Malley and Wright just as the Injustice Watch story was breaking. Soon after the Injustice Watch story was published, the CBA ratings on Wright and O'Malley were pulled. Visitors to the CBA website -- e.g. prospective voters seeking the guidance of the oldest, and, arguably, the most broadly based local bar group -- would find that the ratings for O'Malley and Wright had been changed to "PENDING."

The CBA's rating on O'Malley was updated over a week ago. Now the CBA recommends a "No" vote on O'Malley and, as it did with the only other negative recommendation it has so far given on a retention judge, issued an explanation of its finding. This is the CBA's explanation on O'Malley:

Judge Shannon O’Malley has been found “Not Recommended” for retention as a Circuit Court Judge. Judge O’Malley was admitted to practice law in 1992. He was in private practice prior to becoming a Judge in 2018 and being assigned to the First Municipal District. In May 2019, Judge O’Malley was transferred to the Child Protection Division where he currently presides.

Judge O’Malley did not seem to understand the seriousness of the issues raised by the Committee, answering with flip responses. Judge O’Malley blamed others for his assertion, for tax purposes, that his principal residence is in Will County while, for election purposes, saying he resides in Cook County. His responses to the Committee’s questions were short, vague, and evasive. The Committee found Judge O’Malley’s credibility severely lacking and his integrity highly questionable. His prior criminal history and sheer number of ARDC complaints are also very concerning. Significant concerns were also raised regarding Judge O’Malley’s lack of knowledge of the law, diligence, case and courtroom management, and legal ability. While the Committee appreciated his candor about his lack of excellence, he seems satisfied to be “not bad.” These reasons resulted in Judge O’Malley’s “Not Recommended” finding.

The reference to "prior criminal history and sheer number of ARDC complaints" in Judge O'Malley's evaluation is very concerning for me, inasmuch as I can find no indication that Judge O'Malley has ever been disciplined by the Illinois Attorney Registration & Disciplinary Commission or that he is the subject of any pending disciplinary proceedings stemming from his time in private practice. Nor do I find reference in my archives, or in an (admittedly not exhaustive) online search today, to any prior criminal proceedings regarding Judge O'Malley under that name or the name by which he was formerly known, Phillip Spiwak.

Though I never served as a judge, I did subject myself to bar association screenings on several occasions over many years in my futile efforts to become a judge. From that experience, I can state that prospective judges are required to report disciplinary episodes in their past that may not have resulted in any public discipline. We also must sign consent forms, allowing the bar groups access to ARDC records concerning matters that never became a matter of public charges -- you know, just in case we 'forgot' to mention something. This is because ARDC proceedings are confidential unless and until public charges are brought, so this is the only way bar evaluators can get the full disciplinary picture. I assume judges seeking retention are expected to make similar disclosures.

I also understand that criminal defense attorneys in private practice, as Spiwak was before his name change and ascension to the bench, draw a disproportionate number of disciplinary complaints that the ARDC finds unfounded or insufficient to pursue. So, without context or explanation, but as an almost gratuitous aside, this is not the sort of thing I would expect to find in a JEC finding ever. The residency allegations alone are sufficient, and substantive, and, if true, disqualifying. So it concerns me that these other vague, unexplained references were included.

But -- put all that aside -- I have been 'sitting' on the CBA's new statement regarding Judge O'Malley for some days now, expecting that it would be shortly followed, for better or worse, by a new statement regarding Judge Wright. But here is a screenshot of the CBA's website taken this morning (just after 10:30 a.m.):

This is written on Saturday, November 2. Although it may seem like it will never get here, Election Day is this coming Tuesday, November 5. What help or hindrance the CBA's recommendation may be for Judge Wright at this stage diminishes with each passing hour.

When the CBA issues any statement, I will have it here as soon as possible.