On media, money, and recent headlines

Channel 11's Chicago Tonight featured a panel discussion a week ago Monday with Law Bulletin editor Marc Karlinsky, former Circuit Court Judge Edmund Ponce de Leon, and John Marshall Law School Professor Samuel V. Jones, a discussion that started with the current headlines---the indictment of Judge Jessica O'Brien and the resignation of Judge Richard Cooke---but was repeatedly steered (in my opinion) by moderator Carol Marin back to the typical local media talking points: "Merit" selection (and the public's ignorance of who serves in the judiciary), the unhealthy political control over the judicial election process, the inability to throw out judges in local retention elections, and the potentially corrupting influence of money in judicial races. Watch the video yourself to see if you agree.

Ms. Marin may have struck all the conventional notes but, in his discussions with the Chicago Sun-Times following his resignation, ex-Judge Richard Cooke departed from the traditional narrative:

Richard Cooke tells the Watchdogs why he quit his #CookCountyJudicial gig https://t.co/0eAquCRbfd via @suntimes

— Jack Leyhane (@JackLeyhane) May 5, 2017

Of course, FWIW readers are presumably unsurprised by allegations of politics going on behind closed doors at the county courthouses. We might prefer that our judges all be members of a contemplative commune of black-robed legal philosophers---or we might say that this is what we prefer---but the reality is that we choose these men and women in a political process. (Associate judges are chosen by the elected judges in a different, but at least equally political process).

I have no opinions about the alleged conflict that Cooke said made it inappropriate for him to report to Traffic Court. I have had no opportunity to independently assess whether Cooke's concerns were or were not well-founded.

I do know that almost all new judges start out in Traffic Court. Traffic courtrooms are generally high-volume courtrooms and I believe that handling a room like that would usually be quite different from anything a new judge might have done before. In Traffic Court, new judges get a crash course in commanding the attention of a busy courtroom, assessing witness credibility, functioning as a neutral (quite different from being an advocate of one side or the other), and in making prompt decisions (there's not a lot of room for let-me-get-back-to-you-on-this in Traffic Court). Most new judges have little or no specific Traffic Court experience before going on the bench, but Traffic Court is considered to present legal issues that most judges can pick up quickly -- after all, most judges at least drive cars and have some familiarity with traffic law if only from that.

But, if almost all new judges go through Traffic Court, that means that not all do. There is no statute or ordinance that has been called to my attention that requires new Cook County judges to serve an apprenticeship in Traffic Court. In fact, by coincidence, about six weeks ago, at an Appellate Lawyers luncheon, one of the justices at my table recounted how he had never sat one day in Traffic Court; because of his extensive trial experience he was put immediately in a small claims courtroom instead. These "11th floor courtrooms" -- non-jury civil courtrooms on the 11th floor of the Daley Center -- are often the second assignment for new judges after Traffic Court. But these rooms are also fairly high-volume courts where some of those same initial lessons in how to be a judge may also be learned.

I also know that our Cook County court system is one of the largest unified court systems in the world; there are a lot of different assignments. So I don't know that it was really necessary for Chief Judge Evans and new Judge Cooke to wind up at loggerheads. One can't help but think that there might have been some agreeable compromise available, if both sides were willing.

Having said all that, of course, I freely admit that, if I were offered the opportunity to sit in Traffic Court, I'd sprint for the Daley Center escalator before anyone could change their mind. I suppose that many FWIW readers would do the same.

In my case, I will never have to worry about it. Even if I did have $500,000 or $600,000 that I could squander on an election campaign (¡ojalá!), those funds would probably not pave the kind of uncontested path to a judgeship that Mr. Cooke had.

Cooke was well-known to the political leaders in the 6th Subcircuit; he'd donated time and money to causes they held near and dear; he'd gained favorable attention from the operation of his legal clinic. I, on the other hand, would be---despite running this blog for many years---a stranger to most of the political operatives in my backyard (at best I'd be a nodding acquaintance). Sixth Subcircuit politicians had reason to believe that Cooke could (and would, if forced) spend his enormous war chest wisely and run a good campaign; on the other hand, politicians in my neck of the woods would at least be sorely tempted to see if I knew how to use my money effectively. And professional politicians can bleed a candidate, make no mistake. Petition challenges may be unfounded, but they are fraught with peril for the uninitiated, and expensive for all concerned. If I survived the inevitable challenges, and knocked any phantom candidates off the ballot, there would still be at least one well-funded challenger. Probably one with a much better-sounding Irish name than mine. Would I have enough savvy to seek out and enlist the aid of experienced political operatives (and follow their good advice) -- or would I throw away my money on buttons and newspaper advertisements? In my quest for good advice would I take on an adviser who was really working on behalf of maintaining the status quo? As the old saying goes, politics ain't beanbag.

Money alone, even large stacks of the stuff, carries with it no guarantee of success in the quest for any political office. (Remember how much money Jeb Bush had? That's why people who fret about the corrosive influence of money per se in politics are focused on a single tree in a tangled forest.) Richard Cooke was smart enough, and connected enough, to use his money as leverage to obtain his goal.

Cooke was no political naif. Thus, whatever the accuracy or merit of his specific contentions, Cooke's comments to the Sun-Times about a different level or species of politics being practiced within the judiciary suggest that clout outside the courthouse does not necessarily translate to clout within. As someone who believes in the importance of judicial independence, I find some comfort in this. A little, anyway.

What does a slated judicial candidate get for $40,000?

A couple of comments to posts on Page One of the blog deserve a post of their own.

An anonymous commenter wrote:

"Chutzpah" is a Yiddish term that loosely means "shameless audacity" and on this Rosh Hashanah I can think of no better term than to describe the arrogance and imprudence of the Cook County Democratic Party.

First, the slating contribution was $30,000, then by mid-summer they raised it to $35,000, and finally by slating the party upped the contribution to a whopping $40,000. The reason for this 34% from one year to the next? Well, there was none. No explanation was offered.

Then today, the most galling e-mail was sent out by the party telling candidates that in addition to their $40,000 ... they needed to get petitions signed with 1,500 signatures!! If you got just 700 more signatures on your own, you can get on the ballot and save yourself $40,000!!

What exactly does the $40,000 get you? The party does not supply a lawyer, does not get your signatures, and does not pay for any ballot challenge you file or defend. Then on top of it, you are still shaken down by half the committeemen who invite you to attend their birthday party ... for $250, or ask you to join them for a day at the horse races ... for another $500, or invite you to attend their picnic ... for another $250, and on and on it goes. Then there are the extra charges you get from your "campaign consultant," even though you don't know what the hell she did with the first $6,000 you gave her. Then come election time, if you are in a tight race, committeemen will expect candidates to pony up more money if they want to be on that ward's palm cards, and some committeemen will tacitly imply that if you don't cough up a substantial amount of money, they will in fact offer you zero support ... that's zero with a "Z." Oh, and don't forget that there are some notorious committeemen who will also shake down the your opponent and print several sets of palm cards, just enough to make it look legit when you stop by. And there they will sit, in a back room of some ward or township party office gathering dust and mildewing.

Shanah Tovah everyone! May you be inscribed for a good year. That will be $1,500.

That comment is not just bitter, it's funny and, I think, thought-provoking. As was this subsequent comment, which read:

I echo what has been said above. I just received an invitation to Louis Arroyo's "candidates forum" and the "entrance fee" is $750!! In return, you will get to step up to a microphone with 20 other candidates and over the din of the talking guests tell them your name, bar association ratings and mention some charity work you did 17 years ago. No one will hear you or remember you. Arroyo will not know your name when you come in, will not know it when you leave, and will not remember it tomorrow. On election day, you will get nothing for your $750. [Read that last sentence again.]

The Cook County Democratic Party is also holding a fundraiser that you are expected to buy tickets to and attend within days of writing them a $40,000 check. Bigwigs from the CFL will be there, so if you don't attend you do so at your own peril. More money down the drain. It is usually around this time of the campaign when candidates begin trying to convince their kids that Dartmouth is really no better than Moraine Valley Community College.

It is all a big gamble. If you win election, or lose election, at some point you will be in a mortgage foreclosure courtroom as either the judge or the defendant.

I do disagree that the Party does nothing for the $40,000. A week before election, they will send out a mailing with a life sized photograph of Toni Preckwinkle's face on the cover, and inside will be your $40,000 thumbnail photo and name. There will be a number of candidates running for office also listed in the mailer, and most of them will not have paid anything for the mail piece which you have happily subsidized.

I believe these comments raise valid questions and I'd like to see the discussion continue.

So let me add my own two cents. Even if I can't be as amusing.

I suppose I'm being Dr. Pangloss again, but I submit that slating by the Democratic Party in Cook County (and the concomitant $40,000 pledge) buys a judicial candidate two things: (1) Credibility and (2) Access.

Kitchen table candidates can and do win judicial races -- occasionally -- particularly if the candidate is blessed with a sonorous appellation (for any Ivy Leaguers in the audience, that means 'has a good ballot name'). Or if the candidate winds up the only female in a race with three males. Or maybe vice versa.

But slating, at least countywide slating, immediately confers a mantle of credibility on a candidate: This man or woman has some serious pull. This man or woman will be a formidable opponent.

Now, in the bad old days of patronage, when no one got a city or county job without a letter from one's sponsor, frustrated applicants found that there were two types of letters -- one that got you the job and another that merely got you an interview. So it is these days with slating: Some candidates are more slated than others; we can see this in the election results in every recent election cycle. Some candidates get dumped by ward or township organizations that are supposed to be promoting them, no matter what ads they buy for the adbook or how many holes they sponsor at the golf outing.

But nobody on the outside -- meaning 99.99% of the population -- knows who's been SLATED and who's been merely slated until Election Day or shortly before. So even the candidate who's been merely semi-slated, with some major committeemen's fingers discreetly crossed, starts out with a perception of credibility.

The commenter's remarks about petitions should scare every slated candidate down to the marrow: Surely one of the major components of a candidate's credibility is the belief that his or her nominating petitions will be "bulletproof." And I certainly can't think of a slated candidate in Cook County who's been knocked off the ballot for defective petitions or insufficient signatures.

But I no longer believe it to be a fool's errand to think about challenging even a slated candidate's petitions. My belief is not based on empirical studies -- unless the MacArthur people want to throw some money my way, this judicial election watching must necessarily remain a hobby -- but I think a slated candidate would be wise to do more than the Party is apparently asking for, petition-wise, if he or she wants to be assured of "bulletproof" ballot status.

But my perception, or the Party's asking for candidates to help in circulating their own petitions, will not damage the credibility of a slated candidate unless and until one of them gets knocked off the ballot.

So $40,000, for now, at least, buys credibility.

It also buys access.

The commenters are clearly frustrated that, after coughing up $40,000, or promising to, they find they still have to pay for every imaginable event that they might wish to attend (which, if they are serious candidates, should be every imaginable event).

It's like paying to enter Six Flags and finding out that every single ride, even the merry-go-round (do they have a merry-go-round at Six Flags?), costs extra.

So $40,000 does not guarantee admission to anything -- it buys only an invitation to everything.

When I ran for judge in the mid-90s, I would go anywhere I could, see anyone I could. In a good week, I'd get out to two or three events. The slated candidates, however, can go to two or three events a night, and more on weekends, especially if they're smart enough to have, or hire, a driver.

I noticed, when I ran, that I kept running into the same people, over and over again, many of them committed to one of my opponents. In fact, many of those same people were my opponents at any event I was fortunate enough to attend (I ran in crowded races). But I could only go to events that I knew about, whether because someone (one of my opponents, perhaps) tipped me off, or the event was one of the few advertised to the general public. I was on nobody's mailing lists in those days, so I never even heard about most political events, and most of the ones I did hear about had already happened.

You might think that the act of filing petitions alone would put a candidate on at least 80 mailing lists (50 ward and 30 township organizations) -- but, even when politicians are raising money, they apparently still don't want nobody that nobody sent.

And, let me tell you, I was that nobody.

I'm sure it must be numbing for the slated candidate to run into so many of the same people, night after night, often on the same night. But it is in seeing and being seen that the slated candidate can turn the initial perception of credibility into virtual invincibility. Especially in these days of social media, where the candidate takes a few quick selfies with the host at each event, and any other worthy willing to pose, and posts them on Facebook and Twitter and whatever else the kids are into these days. Social media is like a force multiplier: Whatever buzz may be generated for a candidate who shows up at everything, paying a la carte, is magnified by posting the pictures on Facebook. Sure the other candidates and other careful observers may get tired of seeing your face 16 times a day in their 'News Feed' -- but the random 'likes' and reposts from friends, family, law partners, fellow candidates, or whatever, puts your mug on all sorts of people's screens. Half, or maybe three-quarters of the people who vote for you may not remember your name by the time they leave the polling place on Primary Day, but when they're making their mark, they mark you, Mr. or Ms. Social Media, because yours is a name they've seen before.

And you can't get that sort of exposure without being at everything (and letting the world know about it) -- and you can't find out about anything unless you're given access -- and $40,000 gets you that.

Maybe that's too high a price. But what is a better alternative? Readers, what am I missing?

Republicans trying to bail out the Redistricting Amendment?

That's what the Illinois Observer is reporting this morning. Specifically, according to the linked post, House Minority Leader Jim Durkin and Senate Minority Leader Christine Radogno have asked the Illinois State Board of Elections to reconsider the impossibly tight deadline imposed on Yes for Independent Maps to 'rehabilitate' signatures tested and found wanting on its petitions to place the Illinois Independent Redistricting Amendment on the November ballot.

The Observer piece makes this out to be a normal Republicans vs. Democrats story: As I reported on May 21, Illinois House Speaker Michael Madigan is behind a suit to knock this amendment off the ballot... if it makes it on the ballot in the first place. Today's Observer post notes that the Yes to Independent Maps campaign has raised $2.9 million, principally from Republicans, "such as Ken and Anne Griffin who have donated $350,000 to the effort and who are among GOP gubernatorial nominee Bruce Rauner’s biggest financial backers."

See? Straight-up partisan politics, right?

As Lee Corso says on college football Saturdays, not so fast, my friend.

It's easy to assume that the Republicans would be in favor of the amendment, since the Democrats that now control that mapping process have drawn such friendly districts for themselves, and such dangerous districts for their Republican friends, that the Republicans can practically qualify for endangered species status in Illinois. But nothing lasts forever, especially in politics. The Republicans will presumably have their day again. Eventually. And when they get it, they don't want to have to deal with fairly drawn districts; they will want a chance to draw three Democratic incumbents into the same new district and see how they like it. Republicans want to pick friendly voters and hamstring their opponents just as badly as Democrats do.

Today's alleged Republican plea to the ISBE comes suspiciously late in the process.

The ISBE is required by law to spot-check 5% of the signatures on mega-petitions like that filed by the redistricting amendment's supporters. In that check fully 54% of the signatures were deemed invalid. Projecting this failure rate across the entire petition would put the amendment well short of the 298,400 valid signatures necessary to qualify for the ballot.

Amendment supporters were given the Herculean task of trying to track down the 13,807 petition signers whose signatures were deemed invalid and secure affidavits from them showing that they did in fact sign the petition -- and they were initially given only until June 5 in which to accomplish this.

A Tribune editorial on June 5 noted that an ISBE hearing officer had agreed to give the Yes people a brief extension, to June 13, in which to marshal their rehabilitation evidence, but the full Board overruled the hearing officer. (The Tribune article also notes -- curiously -- that there was no consensus as to which signatures were invalid -- some Board staffers found only 17% of the signatures wanting, while others were willing to throw out an astonishing 86% of the signatures checked.)

Anyway, Radogno and Durkin's plea apparently comes after this reinstated deadline has passed -- before the Board's seemingly inevitable final ruling against the amendment comes down on June 17, but too late to do any real good. Fodder for a commercial or two, perhaps, but without incurring any serious risk that the voters might get a chance to vote on the amendment.

Photo obtained from this post on Capitol Fax

It's interesting to note that the constitutional amendment that Bruce Rauner openly supports, the term limits amendment, an amendment that would also cut the size of the Illinois Senate, has sailed through the ISBE without difficulty. (That's Mr. Rauner, above, posing with the term limits petitions just before they were sent for filing.)

Political professionals can deal with term limits -- Putin and Medvedev simply traded places, you'll recall. Granted, the last Cutback Amendment, perhaps the all-time blunder of Pat Quinn's career, was disruptive. Not only did it put one-third of the Illinois House out of office, it did more than any other single thing to create our current system in Springfield in which the majority leaders in both houses have such authority. The political class as a whole survived and prospered despite the disruption.

If some individual politicians would also suffer under Rauner's new cutback plan, the entire political class, in both parties, would be shaken to the core by a non-partisan map-drawing process. The Democrats are honest enough to be openly against it; many Republican politicians are merely pretending to be for it.

There may well be some constitutional infirmities in the Yes proposal; election attorney Michael J. Kasper will make a strong case, if he has to. This sentence in the proposed Amendment, for example, seems likely to cause trouble: "For ten years after service as a Commissioner or Special Commissioner [on the Independent Redistricting Commission], a person is ineligible to serve as a Senator, Representative, officer of the Executive Branch, Judge, or Associate Judge of the State or an officer or employee of the State whose appointment is subject to confirmation by the Senate."

But the professional politicians don't want to get to the merits of the map-drawing amendment either in a courtroom or on the hustings. They'd like to see it killed before it gets on the ballot. And, today's nominal Republican protest notwithstanding, the professional politicians may soon get their wish.

Philadelphia judicial ethics complaint shows value of local bar association investigations

ABA Journal Law News Now reported last week about the troubles brewing in Philadelphia for a local judge accused of making misrepresentations on candidate questionnaires.

The October 25 Law News Now post, by Debra Cassens Weiss, links to the Pennsylvania Judicial Conduct Board Complaint against Judge Thomas M. Nocella. Apparently, in Pennsylvania, candidates for judicial office are required to respond to questionnaires which, inter alia, inquire into the prospective judges' finances and litigation histories. These questionnaires are used to determine whether a candidate receives a "qualified" or "not qualified" rating.

Judge Nocella made some disclosure of financial difficulties and past lawsuits and, at one point, was rated unqualified as a result. He successfully appealed the initial unfavorable rating -- but it appears that the Judicial Conduct Board is contending that, at best, Nocella minimized the extent of his difficulties. According to Weiss's post, Judge Nocella stands accused of failing to disclose "two Internal Revenue Service liens against him for more than $469,000, a personal bankruptcy filing, a contempt finding for disobeying court orders stemming from his representation of a political action committee, and 24 cases in which he was a defendant or a respondent." The failure to make complete and accurate disclosures on the questionnaire can result in disciplinary action in Pennsylvania.

A similar situation may be unlikely to occur in Cook County. Yes, judges and prospective judges get into financial difficulties from time to time in Cook County, just as anyone anywhere might. But, in Cook County, when a judicial candidate steps forward or a judge seeks retention, the bar associations investigate the responses that judicial hopefuls provide. Edward Austin, a former Chair of the Judicial Evaluation Committee of the Chicago Bar Association, explained, "The cornerstone to the CBA evaluation process is the investigation. Our investigators work tirelessly to not only contact listed references but also references not listed by the Candidates. Additionally, a Google search, Cook County Circuit Court Clerk name check for pending or past litigation and an ARDC search are conducted to uncover any and all information pertinent to someone seeking a judicial post. There have been many instances in the past where candidates have not included or omitted information on their questionnaire that was subsequently found during the investigation process. The omissions have included lawsuits, ARDC complaints, and bankruptcy filings."

While he agreed that record searches would likely pull up some discrepancies in a less-than-candid candidate's disclosures, Michael A. Strom, the President of the Decalogue Society of Lawyers, a member of the Alliance of Bar Associations for Judicial Screening, was uncertain that all of a candidate's financial problems could be ferreted out, even with a vigorous investigation. "I could easily see practitioners in the Chicago area having problems totally unrelated to their area of concentration, and unknown to their colleagues," Strom said. "For example, I know many veteran personal-injury and insurance defense practitioners from years of practice in that field. When bar association judicial screeners call to ask about a candidate, it is extremely unlikely that I would know about any tax problems or IRS liens. Multiply that one interview by 20 and throw in interviews of judges before whom the candidate has practiced, and it would not be surprising to see personal debt, bankruptcy, domestic relations issues, and other issues remaining unknown to the attorneys who would best know the candidate."

Large urban areas and their correspondingly large judicial systems "tend to make individual judges less public figures, less well-known to the bar and to voters who may be called to vote on judicial elections or retention," Strom said. "We often hear how judicial elections in rural or lightly populated regions are [more] effective since people in those communities have a greater tendency to know their neighbors, their community leaders - not just professionally but personally," Strom added. "Accordingly, attorneys in Calhoun County would be much more likely to know about the sort of issues covered in the ethics complaint concerning Judge Nocella whether [or not] the disclosures were made in application forms."

Al Durkin is the Co-Chair of the Illinois State Bar Asssociation's Judicial Evaluation Committee and a member of the Alliance board. "Judicial candidates in Cook County are very concerned when they come before the Alliance," Durkin said. "Candidates do their best to provide information in order to allow the member bars to make as informed a decision as possible."

Every candidate is specifically asked if he or she is or has been a party in any litigation, Durkin said, adding that a negative answer to this question would probably be "a death knell" to the candidate's chances for a favorable evaluation if investigation revealed that the candidate attempted to conceal involvement in a number of legal matters.

Ed Austin stressed that candidates who seem to have provided incomplete information are given an opportunity, under the CBA's practice, to explain themselves. In such cases, Austin said, candidates "are notified of our discovery prior to a hearing pursuant to Rule 22 and the issue is addressed at the hearing if they seek to continue with the evaluation." Durkin said the Alliance follows a similar procedure. "In fairness," Durkin said, "there might be a situation where a candidate did not know" -- a code violation suit involving a building managed by the candidate's spouse, for example. The Alliance hearing can also be postponed "to give the candidate time to put together a response," Durkin said.

Austin noted that favorable rating from the CBA can be pulled if information previously concealed comes to light. The CBA Board of Managers and the Executive Committee can "withdraw a past finding if new information is brought to light that was not disclosed during the original evaluation." Alliance members have also changed ratings in the past.

"Non-disclosure is taken very seriously" by all judicial evaluation committees in Cook County, Austin said, "and, as is often the case, the cover up is worse than the crime."

The Pennsylvania practice appears to rely on candidate self-disclosure -- and one would certainly hope (and expect) that persons seeking judicial office would be honest and truthful. Our Cook County judicial screening process also depends on self-disclosure. But in our practice, as Ronald Reagan said to Mikhail Gorbachev, we trust, but verify.