Judicial Recusal & Confidence in Our Courts
This fall, the issue of judicial recusal has returned to the forefront in Illinois, with the indictments against Supreme Court Justice Anne Burke’s husband, Chicago Alderman Ed Burke. In particular, WBEZ reported at least 10 instances in which Justice Burke decided cases involving parties who, at the time, were being represented as clients of Alderman Burke’s law firm, Klafter & Burke. Although Alderman Burke has stepped down from the law firm, the public is rightfully questioning when it’s necessary or appropriate for judges to recuse themselves.
Judicial ethics are covered in Canon 3 of the Supreme Court Rules, which says that a judge should perform the duties of judicial office impartially and diligently; and then sets out rules for doing so. Rule 63(C) in Canon 3 states:
[A] judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.
The Rule offers only five situations in which a judge’s impartiality might reasonably be questioned[1], but these examples are not intended to be exhaustive nor exclusionary. Therefore, they leave much discretion to the individual judge in the decision to recuse voluntarily from cases.
In 2013, Chicago Appleseed and The Illinois Campaign for Political Reform, now known as Reform for Illinois, proposed changes to the ethics rules concerning judicial recusal in Illinois. Our concern at the time was clarifying guidance on campaign contributions and improving the review process when a judge denies a request for recusal from a litigant. It’s clear from recent events that—regardless of individual concerns regarding recusal—the existing standard is too discretionary for the full confidence of the public. The judiciary could restore public trust with an expansion of the recusal canon.
A robust, transparent, and meaningful recusal process empowers both judges and litigants. Clear standards in the judicial Canon keep judges informed of their responsibilities and clarify the boundaries of their activities, while leaving them latitude to remain independent. Where the Canon discusses disqualification of judges, it should provide clear guidance for proper recusal decisions to protect judicial integrity.
We recommend adding language that specifically addresses campaign support to Rule 63(c) and creating additional procedural rules for Motions for Substitution of Judge for Cause filed in the trial court and criminal courts, in the appellate court, and in the Illinois Supreme Court. Denials of these motions are not subject to appeal until the case is entirely concluded. Creating a procedure for interlocutory appeal on Motions to Substitute for Cause would prevent accidental waiver of appeal. Additionally, it will promote development of a robust body of common law to guide judges in recusal decisions.
Lengthy discussion of these proposed changes in our policy brief from 2013 and the accompanying proposal submitted to the Court in 2013.
At this moment in time, the precise changes to the recusal Canons are less important than the Court’s understanding that the existing rules are no longer sufficient for public confidence in the independence of the judiciary. Courts cannot function when their communities do not believe they are impartial, ethical, and governed without bias. A court which remedies its own weaknesses may earn the trust of all of us.
[1] (a) The judge has personal knowledge of facts in the case or a personal bias against an attorney in the case; (b) The judge served as an attorney in the case, or with an attorney in the case, or as an attorney in the case; (c) The judge was employed by a firm in the case within the last 3 years; (d) The judge, their spouse, or children has an economic interest in the case; (e) The judge’s spouse, children, or other close relative is an attorney, witness, litigant or other person with substantial interest in the case.