Conflict of interest is a hot topic of discussion in modern politics, particularly with the rise of big money and hyper-partisanship. But it’s usually brought up in the context of the legislature and executive branches. However, the judiciary has its own complications.
At the national level, the Supreme Court was intended to be a more moderating influence. These justices are appointed for life and don’t have to face the pressure of running for a new term.
In Illinois, Circuit Court judges may appoint associate judges who serve for four years. It’s also possible for the judges to appointed a new jurist if there’s a mid-term vacancy.
But all Circuit Court judges are chosen initially by partisan election -- where they can receive campaign contributions.
Paul Logli, President and CEO of the United Way of Rock River Valley, is a former Illinois Circuit Court judge and former Winnebago County State’s Attorney. He said that, whether elected or appointed, judges have to run for retention at the circuit court level. That can lead to campaign expenses -- and contributions to help pay for them.
"Even at the appellate court level, judges can be appointed by the Supreme Court," he said, "but then all the judges have to run for retention, as Circuit or Appellate Court judges."
Any qualified candidate can run against these judges during their initial election at circuit level and above. Circuit Court justices are elected for six years, while Appellate and Supreme Court justices judges have ten-year terms. Almost all elections are partisan.
These campaigns are no different from executive or legislative races but, Logli noted, judges aren’t officially allowed to discuss future decisions. At the same time, he admitted that lawyers donating money to specific judicial candidates can, at minimum, create the appearance of a conflict. This is especially true if these attorneys will be involved in future cases with the same judge.
“So you have a judge on the bench who had a campaign budget of $100,000 and somebody gave them $5,000 to 10,000," Logli said. "I think that does create the appearance of impropriety.”
But, for Logli, the most troubling aspect is that judicial races are getting significantly more expensive. This is especially true when interest groups start giving money based on what side they believes a judge favors. He recalled a downstate Supreme Court race where both candidates raised about $2 million.
“So the insurance industry weighed in and gave a lot of money to the Republican judge, and the plaintiffs attorneys weighed in and gave a lot more money to the Democratic judge. You didn’t just have a party partisan election. You had an election that was partisan between the focus of the lawyers and their practices.”
Thus, if a district is seen as especially favorable to a certain type of client, more interest groups will inject their money into a race. Fortunately, Illinois law does allow clients in a case to file a motion for substitute judges if they believe one received too much money from specific groups to remain impartial.
However, the rules aren’t as straightforward in Wisconsin. All of its judges run in elections, but don’t declare a party.
Janine Geske is a retired Wisconsin Supreme Court Justice and currently teaches law at Marquette University. She said that, like Illinois, elections are getting more expensive and money is flowing in from many different interests.
“Now our supreme court races in Wisconsin, it’s not infrequent that there are two to three million dollars spent between the direct money that is given to the campaign and the indirect money that comes in through the advocacy groups," she said.
With the increased funds coming into state races, Geske, like Logli, is concerned about how things look.
"We’ve always worried about what’s the appearance of conflict or what’s the appearance of impropriety," she said, "and the influx of this large amount of money relevant to cases that the court is hearing is really giving a lot of pause to people that, in fact, it appears as though it could potentially influence the court."
However, unlike Illinois, Wisconsin has no mechanism for parties in a case to request different judges. There also aren’t any provisions that would force judges to recuse themselves. To address this, Geske and more than 50 other retired judges at various levels pushed for a measure that would address how much money was contributed in specific cases.
“We proposed on some kind of limit...the justice would have to recuse himself, and it would have to be made public," she explained.
For a Supreme Court justice, the proposed limit was $10,000. This would mean a justice who received contributions above that amount from a party in the case or an affiliated interest group would be legally required to recuse themselves. But the Wisconsin Supreme Court rejected the rule change in Apri, and, according to Geske, didn’t even want a public hearing on the measure.
The decision came after a January ruling which stated that monetary contributions in and of themselves aren’t enough to be considered a conflict of interest. Geske was disappointed and said the lack of recusal standards needs to be addressed for the sake of court integrity.
"We want not only to have a good operating court system, which we have," she said, "but people also have faith in that court system and that they’re not, even on the appearance level, being influenced by any of the money being put into those races."
Despite this setback, however, Geske said there’s still momentum toward recusal reform, even among those outside the legal system.
"There are lots of people in the state who are not lawyers who feel strongly about this. There have been lots of editorials on it," she said. "I just can’t believe we’re going to continue with no parameters on contributions and sitting on cases."
Thus Geske aims to continue efforts at reform. It’s possible for Illinois to implement a similar limit on contributions, but Logli doesn't believe it's a practical option for the state.
"If they did that," he said, "that would knock judges out of cases left and right.”
Instead, he wants a merit-based appointment system where judges are nominated based upon evaluation by bar associations, colleagues, and the current executive administration.
“The politics of the governor will enter into it; the majority in the legislature will enter into that in certain states where that occurs," Logli said, "but it takes away the whole specter of money and campaign fundraising and the things people have to do to get money to support their candidacy.”
Such a reform, however, would require a constitutional amendment, and Logli doesn’t think that’s feasible in the current political environment. Nevertheless, he wants judges to be selected beyond simple party and name recognition -- and without anything that would entangle a judge beyond simple name and party recognition, as compared with the current structure.
And, unless money is completely eliminated from the selection of judges, there will be a continual struggle to ensure a truly impartial judiciary in both Illinois and Wisconsin.
Since retiring from the Supreme Court, Geske has spoken much about the topic of restorative justice in her work at Marquette University. It's a justice system that focuses on rehabilitating offenders by reconciling with victims and their community at large.