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How to Properly Play SOJ

Clifford's Notes, Chicago Lawyer May 1, 2013

By Robert A. Clifford

The issue of recusal arose recently in the matter involving the misuse of campaign funds by Jesse Jackson Jr., and his wife, Sandra, both of whom pleaded guilty. On Feb. 20, U.S. District Judge Robert L. Wilkins, who was assigned the case and will sentence the former congressman on June 28 and his wife on July 1, wrote a four-page memorandum regarding the parties’ opportunity to request another judge. In that opinion, Wilkins disclosed that while he was a law student at Harvard, he had worked on the presidential campaign of the Rev. Jesse Jackson Sr. and that he had introduced Jackson Sr. on Oct. 24, 1988, at a campus event. He crossed paths with the defendant’s father about 10 years later, but did not recall meeting or speaking to the two defendants in these cases.

In his well-written memorandum, Wilkins discusses both Canon 3C of the Code of Conduct for U.S. Judges and 28 U.S.C. Section 455. He cited the well-known rule that mandatory disqualification is required when “the judge ‘has a personal bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceeding,’ when the judge has a connection to the matter from private practice or government service prior to his/her appointment to the bench, when the financial interest of the judge, a spouse or minor child could be substantially affected by the proceeding, or when the judge or a close family member has an interest that could be substantially affected by the case or is a party, lawyer or a potential material witness in the case.” 28 U.S.C. Section 455 (b); Code of Judicial Conduct Canon 3C(1)(a)-(e).

Wilkins addressed the “more general, catch-all standard [that] is harder to construe” — when a judge’s impartiality might reasonably be questioned. Canon 3C(1). He quoted Justice Stephen G. Breyer’s explanation in In re Allied-Signal Inc., 891 F.2d 967, 970 (1st Cir.1989), when he wrote, “‘[W]hen considering disqualification, the district court is not to use the standard of ‘Caesar’s wife,’ the standard of mere suspicion. That is because the disqualification decision must reflect not only the need to secure public confidence through proceedings that appear impartial, but also the need to prevent parties from too easily obtaining the disqualification of a judge, thereby potentially manipulating the system for strategic reasons, perhaps to obtain a judge more to their liking.” Wilkins concluded he has no bias or personal interest in the case and that the court’s impartiality could not be questioned. Each party executed a waiver of judicial disqualification and he will continue to serve as the judge in the Jackson matters.

735 ILCS 5/2-1001 governs substitution of judges in Illinois state courts. In civil matters, one substitution is allowed as a matter of right. Substitution for cause must be made before a trial or hearing begins and before that judge has ruled on any “substantial issue in the case or if it is presented by consent of the parties.” It was pointed out that for a party who has not entered an appearance and has not been found in default, rulings on any substantial issue before the party’s appearance shall not be grounds for denying an otherwise timely application for substitution. A denial of a motion for default is considered a “substantial issue.” Antkiewicz v. Pax Indianapolis Inc., 254 Ill.App.3d 723 (1st Dist.1993). On the other hand, an order setting a treating physician’s fees for testifying was considered not substantial. Nasrallah v. Davilla, 326 Ill.App.3d 1036 (1st Dist. 2001). Generally, it is substantial if it directly relates to the merits of the case.

The theme running through all cases is that “judge shopping” is not allowed. After a judge has made a ruling on a substantial matter, one cannot ask for a different judge simply because one side doesn’t agree with the decision. A party can petition to have the judge removed for cause, but the standard is that a party must show actual prejudice, not the standard of “Caesar’s wife.”

As the Illinois Supreme Court held in In re Marriage of O’Brien, 2011 IL 109039 (2011), a substitution for cause cannot be based upon allegations of the appearance of impropriety. In In re Wilson, 238 Ill.2d 519 (2010), the Supreme Court found that a trial judge who is the subject of a petition for substitution for cause can preliminarily determine if the petition complies with the threshold requirements, and if it does not, can deny the petition without transferring it to another judge for a hearing. The party must file such a petition at the “earliest practicable date,” supported by an affidavit and the bias or prejudice must stem from an “extrajudicial source.”

The issue was the topic of one of Cook County Circuit Judge Lynn Egan’s lunchtime CLE programs, “Judicial Disclosure, SOJs and Recusal Considerations.” In a fast-paced hour, Judges Mary Anne Mason and Kathleen Pantle ran through scenarios that lawyers should consider when making motions to disqualify judges and the issues that judges themselves consider to ensure that the “spirit of the canon” is upheld.

Overall, judges should be assumed to be fair and be able to set aside their personal feelings and opinions. After all, that is what they took an oath to do.

And be sure to check out future lively programs organized by Egan — they offer some real judicial insight.

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