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When recusal leads to deadlock: a constitutional cure: a recent U.S. Supreme Court's opinion may increase the number of recusals in Illinois, which could lead to important cases not being decided by our state's highest court. This article proposes a constitutional amendment for replacing Illinois Supreme Court justices when recusal results in deadlock.


The United States Supreme Court's recent opinion in Caperton v A. T. Massey Coal Co, Inc (1) addresses when judges must recuse themselves because a litigant has contributed to their election campaign. Caperton may result in more recusals in the 39 states, like Illinois, that elect judges.

This in turn may reignite the debate over what procedures to use when recusal leaves the Illinois Supreme Court unable to muster the constitutionally required four votes for a decision. This has happened in several cases, and there have been "close calls" where important rulings nearly missed supreme court review.

A constitutional amendment is needed to address the problem, and Senator Kirk W Dillard has introduced such a measure. But the proposed amendment should be modified to apply only when the court will be unable to garner four votes.

This article briefly reviews Caperton, looks at Illinois cases where recusal led--or nearly led--to the court's failure to resolve an important issue, reviews a proposal for a constitutional amendment to address the problem, and suggests a narrowing of that amendment to address only recusals that result in less than a four-justice quorum.

The Caperton ruling

In Caperton, the United States Supreme Court held that when a litigant has made substantial campaign contributions to a judge's election campaign during the case--and those contributions pose a serious risk of actual bias based on an objective inquiry-the Due Process Clause of the Fourteenth Amendment mandates recusal.

There, a justice of the West Virginia Supreme Court refused to recuse himself from the appeal of a $50 million verdict entered against Massey Coal Company, even though the CEO of Massey had contributed $3 million to the justice's election effort, or more than two-thirds of the amount the justice raised to defeat the incumbent. (2) After winning a seat on court, he cast the deciding vote in favor of overturning the verdict.

The question presented to the Untied States Supreme Court was whether the justice's failure to recuse himself violated due process. The Supreme Court ruled that "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 by raising funds or directing the judge's election campaign when the case was pending or imminent." (3)

The "inquiry centers on the contribution's relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election." (4) The temporal relationship between the campaign contributions, the judge's election, and the pendency of the case is also critical. (5) The Court concluded that the justice should have recused himself but emphasized that the case before it presented "extraordinary" facts. (6)

The dissent argued that the majority's new rule does not specify when recusal is constitutionally required. "This will inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be." (7)

The dissent wrote that "[e]very one of the 'Caperton motions' or appeals or [section] 1983 actions will claim that the judge is biased, or probably biased, bringing the judge and the judicial system into disrepute. And all future litigants will assert that their case is really the most extreme thus far." (8) The dissenters observed that "the principal consequence of today's decision is to create vast uncertainty with respect to a point of law that can be raised in all litigated cases in (at least) those 39 States that elect their judges." (9)

If the dissenters' predictions bear out, more motions for recusal will be filed when a litigant has contributed to a judge's campaign. Such allegations have already been made in several high-profile Illinois cases. Whether or not these claims have merit--and we do not suggest they do merely by mentioning them--Illinois should put measures in place that enable the Illinois Supreme Court to muster enough votes to render a decision if there is a recusal.

Deadlocked cases following recusal in Illinois

Section 3 of Article VI of the Illinois Constitution requires four justices for a quorum in the Illinois Supreme Court and the concurrence of four justices to render a decision. (10) If four votes cannot be mustered, the lower court decision effectively stands affirmed, though it has no precedential value and the legal effect is as if the appeal was dismissed. (11) Recusal is not an issue in the trial or appellate court because the recused judge can be replaced. The problem is unique to the supreme court. (12)

Some have suggested that deadlock after recusal is an illusory problem. The Chicago Sun Times found that since 2007 there was one instance where three justices recused themselves, there were six times when two justices recused themselves, and there were 20 cases where one justice recused himself or herself. (13) It also has been reported the court has been unable to reach a decision because of recusals only four to six times in the last 20 years. (14)

But while the number of recusals may seem insignificant at first blush, the issue has loomed in several recent landmark cases. With no remedies available, important issues could have been deferred to future cases.

Close calls: Avery and Philip Morris

In the last five years, the constitutionally required four-vote majority was just met in two cases. In one, the Illinois Supreme Court apparently took measures--including delaying its decision until after an election campaign--to help reach the requisite majority.

In Avery v State Farm Mut Auto Ins Co, (15) the Illinois Supreme Court vacated a $1.05 billion judgment against the insurer. Initially, Justice Robert R. Thomas and Justice Philip J. Rarick recused themselves. Neither was present at the oral argument, which occurred in 2003.

Looking back at the recusals and how the final votes were cast, it is clear that the court could not muster the requisite votes for a decision following oral argument. But Justice Rarick decided not to seek election in 2004 for the seat he was appointed to fill, thus creating an opportunity for a new justice to participate and for the court to reach a decision.

The two candidates for the supreme court vacancy were judge Lloyd Karmeier, a sitting circuit court judge, and Justice Gordon E. Maag, an appellate justice in the fifth district. Presumably, if justice Maag had been elected, he would have recused himself since he was the author of the Avery decision in the appellate court. Justice Karmeier was elected and the Avery decision was ultimately rendered by a 4-2 vote in 2005--almost two years after the oral argument.

The two dissenting justices would have remanded the case for further proceedings, so without Justice Karmeier's vote and with no mechanism to address the one remaining recusal, there could not have been a decision. That would have resulted in an affirmance of the appellate court opinion with no precedential value. The very important class-action issues decided in Avery would have had to wait, and a $1 billion judgment would have been affirmed by default.

In Price v Philip Morris, Inc, (16) the plaintiffs won a $10.1 billion judgment against Philip Morris in the Circuit Court of Madison County, the largest in Illinois history. The Illinois Supreme Court granted a direct appeal, acknowledging that the case was one "in which the public interest requires prompt adjudication by the Supreme Court." (17)

When the plaintiffs filed their appellate brief, a new law firm first appeared as their counsel. In moving to bar the new firm's participation, the defendant maintained that the firm's appearance could result in one justice's recusal because of an attorney-client relationship between the justice and the new law firm. That, the defendant argued, could mean that four votes could not be garnered to overturn the judgment.

The motion was denied and the parties were informed that the justice indeed did not participate in the disposition of that motion. That raised the fear that the justice would recuse himself from deciding the merits and the case would end in a 3-3 deadlock.

Had that occurred, the principle behind Supreme Court Rule 302(b)--that the Illinois Supreme Court be the last word on matters of public interest--would have been undermined. Although the deadlocked case could have been transferred to the appellate court to determine the merits of the appeal, the remand would have caused additional delay, and a case of "public importance" would not have been decided by the state's highest court.

The justice did recuse himself, but the court was able to achieve a majority and the case was decided 4-2. (18) Still, this was another close call where important issues of Illinois jurisprudence were decided by less than a full court.

Cases where the court could not render a decision

While the Price and Avery cases were ultimately resolved, in other cases the inability to muster the necessary votes actually deprived litigants of review from Illinois' highest court.

Perlman v First Natl Bank of Chicago was the first case in which the Illinois Supreme Court addressed the effect of a deadlock and, perhaps, the first time it considered what to do if that happened. (19) There, the court dismissed an appeal because it was unable to reach a decision. Two justices had recused themselves and the remaining court was divided, so it was impossible to assemble four concurring judges.

The court said that m such situations it would follow United States Supreme Court procedure and affirm the judgment of the lower court. It wrote that "[s]uch an affirmance is a conclusive determination and adjudication as between the parties to the immediate case, but it is not authority for the determination of other cases, either in the Supreme Court or in any other court.... [and] is not 'entitled to precedential weight.'" (20) The legal effect of such affirmance, the court stated, is the same as if the appeal was dismissed. (21)

Justice Underwood, one of the justices who had recused himself, lodged a dissent to express his "disagreement with the methods chosen by a majority of the court for disposing of those cases in which the constitutionally required four votes ... cannot be mustered for a resolution on the merits." (22) He stated that for sake of uniformity, when at least four members of the Illinois Supreme Court are unable to agree because of disqualification, "I would assign to our court appellate court judges who would sit in place of our disqualified members and only for the purposes of deciding the case in which four of our members could not agree." (23)

Justice Underwood proposed that the court "select now a list of seven appellate court members and list their names alphabetically, or in the order drawn by chance. Those judges would then be assigned to our court, as the need arose, in rotation." (24)

In South 51 Develop Corp v Vega, (25) the litigants offered a similar solution: appoint a replacement justice. There, the supreme court was equally divided after one justice's recusal and not able to secure the constitutional concurrence of four justices for a decision. The decision of the appellate court therefore was affirmed.

In their petition for rehearing, the plaintiffs asserted that the appellate court had misinterpreted Illinois Supreme Court precedent, thereby necessitating supreme court review, and that the supreme court should use its appointment power and replace a justice to break the tie. The Illinois Supreme Court implicitly refused the plaintiffs' request by denying the petition for rehearing. (26)

The court's inability to acquire four votes because of recusal has also arisen in the context of petitions for leave to appeal. In PHL, Inc v Pullman Bank and Trust Co, (27) two justices recused themselves, and the court could not get four votes to either allow or deny the PLA. The petitioners filed a motion to appoint a replacement justice, but it was denied.

Justice Heiple, joined by justice McMorrow, dissented, stressing the need for replacement procedures and noting that not being able to replace a judge who disqualifies himself or herself penalizes the litigants. (28) Specifically, if fewer than seven justices are available, the number of votes needed to reach a decision--whether on a petition for leave to appeal or on the merits--changes from the typical four out of seven (a 57 percent majority) to four out of six (67 percent), four out of five (80 percent), or even four out of four (100 percent). (29) The petitioner's/appellant's threshold for success thus increases if a recused justice is not replaced.

A solution: a constitutional amendment

Some jurists have suggested that such structural changes must be addressed by amendment to our Illinois Constitution. (30) On February 3, 2009, Senator Kirk W Dillard introduced a bill providing for a constitutional amendment to allow appointment of an appellate court justice as an "Interim Supreme Court judge" to hear a case where a member of the Illinois Supreme Court recuses himself or herself because of an actual or potential conflict of interest. (31) The bill provides:

(b) If a Supreme Court judge recuses himself or herself in a particular case or matter before the Court because of an actual or potential conflict of interest, then the judge shall notify the Clerk of the Supreme Court in writing of the recusal. A Judge of the Appellate Court shall then be selected to serve as an Interim Supreme Court judge to hear that particular case or matter until it is resolved or otherwise disposed of by the Court. The Interim Supreme Court judge shall be selected in a random manner from a pool of Appellate judges as determined by Supreme Court Rule. (32)

As proposed, the language would be incorporated into section 4 of Article VI of the Illinois Constitution, the provision that mandates the four-justice concurrence. The amendment would give the court a constitutional basis to act in circumstances of recusal. (33)

Narrowing the proposal

While the proposal would provide a uniform method to resolve deadlocks, as written it would apply whenever there is a recusal by a justice. We believe it should be narrowed to apply only if the court cannot muster the four votes necessary for an opinion or to determine a petition for leave to appeal. We also suggest that the details and procedures for replacement be determined by the Illinois Supreme Court itself.

The constitutional amendment should be modified as follows:

(b) If a Supreme Court judge recuses himself or herself in a particular case or a matter before the Court because of an actual or potential conflict of interest, and where such recusal results in an inability of the Court to render a decision in the case in accordance with subparagraph (a) of this provision, then an Interim Supreme Court judge shall be selected in accordance with procedures as determined by Supreme Court Rule to hear that particular case or matter until it is resolved or otherwise disposed of by the Court.

Only when the court is unable to garner the four votes needed for a decision is a replacement supreme court justice truly needed. Thus, the procedure would only be a last resort.

Also, the court, not the legislature, is in the best position to determine the method of appointment. The court can resolve all issues associated with the replacement procedure, including the administrative matters (such as compensation, etc.) that would necessarily accompany such a procedure.

Historically, several methods for replacement have been suggested. One is to randomly elevate an appellate court justice from a pool of appellate judges, as in the proposed legislation. Another is to follow Chief Justice Underwood's suggestion and rotate through an alphabetical or randomly drawn list of appellate judges.

A third is to recall a retired Illinois Supreme Court Justice. As of today, there are retired Illinois Supreme Court justices from each of the five districts. A retired justice is obviously familiar with the court's procedures and processes, which should result in a relatively seamless transition.


Caperton may lead to more recusals, which will trigger the debate of what to do when recusals result in a deadlock in the Illinois Supreme Court. The rights of litigants should not be dependent on chance but on a well thought-out contingency plan. We urge the general assembly to consider and resolve this issue.

J. Timothy Eaton and Lynn A. Ellenberger are partners in the law firm of Shefsky & Froelich Ltd, with practices focusing on commercial litigation and appeals.

(1.) 129 S Ct 2252, 2009 WL 1576573 (US W Va).

(2.) Id at 2264, *11.

(3.) Id at 2263-64, *11.

(4.) Id at 2264, *11.

(5.) Id.

(6.) Id at 2265, *13.

(7.) Id at 2267, *15 (Roberts dissenting).

(8.) Id at 2272, *20 (Roberts dissenting) (emphasis in original).

(9.) Id at 2274, *23 (Scalia dissenting).

(10.) IL Const Art VI, 5 3.

(11.) Perlman v First Natl Bank of Chicago, 60 Ill 2d 529, 530, 331 NE2d 65, 66 (1975).

(12.) See Cheney v United States Dist Court for Dist Columbia, 541 US 913, 915 (2004) (memo of Scalia) (noting that the consequences of recusal are different on the United States Supreme Court than in a circuit court of appeals where a replacement judge could be found).

(13.) Maurice Possley, Plan Would Allow Fill-Ins on Supreme Court, Chicago Sun Times, A17 (March 1, 2009).

(14.) Stephanie Potter, State Bar Debates Creating 'Interim' High Court Justices, Chicago Daily Law Bulletin, Vol 155, No 46, 1 (March 9, 2009).

(15.) 216 111 2d 100, 835 NE2d 801 (2005).

(16.) 219 Ill 2d 182, 848 NE2d 1 (2005).

(17.) SCR 302(b).

(18.) See Price (Thomas took no part in consideration or decision of the case and Freeman and Kilbride filed dissenting opinions).

(19.) Perlnv,m at 529-530, 331 NE2d at 66.

(20.) Id at 530,331 NE2d at 66, quoting Neil v Biggers, 409 US 188, 192 (1972).

(21.) Perlman at 530, 331 NE2d at 66.

(22.) Id (Underwood dissenting).

(23.) Id at 531, 331 NE2d at 67 (Underwood dissenting).

(24.) Id (Underwood dissenting).

(25.) 211 Ill 2d 189, 809 NE2d 122 (2004).

(26.) Id, 211 Ill 2d at 191.

(27.) 181 Ill 2d 593, 721 NE2d 1119 (1999).

(28.) Id, 721 NE2d at 1120 (Heiple dissenting).

(29.) Id (Heiple dissenting).

(30.) Id, 721 NE2d at 1119 (Miller concurring) (opining that the composition of the Illinois Supreme Court is fixed by the Constitution, and the court does not have the authority to alter the number of judges on the court).

(31.) Synopsis to SJRCA0010 (Illinois Senate 2009) online at &DocNum=10&GAID=10&SessionID=76&LegID=40765.

(32.) SJRCA0010, Illinois Senate, 96th General Assembly (February 3, 2009).

(33.) See PHL, 721 NE2d at 1119 (Miller concurring) (opining that the Illinois Supreme Court did not have the constitutional authority to "enlarge our own number, even on a temporary basis, whether through the assignment power or any other means"). It should be noted that although the Illinois State Bar Association has debated Senator Dillard's proposal, it has not taken a position on the proposed legislation, deciding to seek more input from committees and to await the Caperton decision. Potter, State Bar Debates at 1 (cited in note 14).
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Author:Eaton, J. Timothy; Ellenberger, Lynn A.
Publication:Illinois Bar Journal
Date:Oct 1, 2009
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