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What If There Were No Judges?

This column is prompted by a letter from a reader of the CBA Record who raised the question of whether Illinois judges could objectively decide the issue of the constitutionality of Illinois’ recent pension reform legislation within the context of the Illinois Code of Judicial Conduct.

As we all know, question of the constitutionality of the pension reform legislation is working its way through the judicial system – eventually to be decided by the Illinois Supreme Court. As we also know, under the Eleventh Amendment to the U. S. Constitution and the cases interpreting that Amendment, the Illinois Supreme Court is the court of last resort in this matter.

While teachers’ outside of Chicago and many state employees’ pensions are covered under Illinois state pension plans that were affected by the pension reform legislation, judges’ pensions covered by the Judges’ Retirement System were not.

The blogosphere is filled with criticisms of the exclusion of judges from the pension reform act, mostly on the grounds of equity to the teachers and other participants in the system who are negatively impacted. However, now that the case is in the court system, a quote from Mike Madigan is pertinent: “Judges were excluded as a practical decision. . . . The absence of the judicial pension system in the bill, will, let’s say, relieve them of the burden of dealing with a conflict of interest.”
Let’s say that the judges’ pensions were included in the bill. Under Illinois Supreme Court Rule 63(C)(1):
A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where: . . . (d) the judge knows that he or she, individually or as a fiduciary, or the judge's spouse, parent or child wherever residing, or any other member of the judge's family residing in the judge's household, has an economic interest in the subject matter in controversy or in a party to the proceeding, or has any more than de minimis interest that could be substantially affected by the proceeding;

Subsection D of Rule 63 states:
A judge disqualified by the terms of Section 3C may disclose on the record the basis of the judge's disqualification and may ask the parties and their lawyers to consider, out of the presence of the judge, whether to waive disqualification. If following disclosure of any basis for disqualification other than personal bias or prejudice concerning a party, the parties and lawyers, without participation by the judge, all agree that the judge should not be disqualified, and the judge is then willing to participate, the judge may participate in the proceeding. This agreement shall be incorporated in the record of the proceeding.

The question is: what happens if every judge who has jurisdiction to adjudicate a matter is disqualified because of a non-waived conflict of interest?

The question raises an issue that appears from time to time in this column – the tension between natural and positive law. No matter how we address the question, the issues become very complex. As a matter of natural law, it is clearly wrong to have someone decide a matter in which they have a material interest. But clearly society needs to have judges to decide cases. The political system would have to find a way to balance this dilemma. Perhaps the state constitution could be amended to give jurisdiction to another court when all the available judges have conflicts. Arguments on balancing the equities would go on and on.

As a matter of positive law, the resolution is very straightforward. The Illinois Supreme Court can handle all of the issues. The prohibition against conflict of interest is in an Illinois Supreme Court Rule – which by definition can be changed by the Illinois Supreme Court. What the Illinois constitution ultimate allows is also determined by the Illinois Supreme Court – so the resolution lies there as well. However, this sort of “power play” could have significant political repercussions.

All of these issues – and more – were discussed by the Illinois Supreme Court in Jorgensen v. Blagojevich [211 Ill. 2d 286, 811 N.E.2d 652 (2004)], a case determining whether the General Assembly and the governor violated the Illinois Constitution when they attempted to eliminate the cost-of-living adjustments to judicial salaries. The case is well worth reading (though too long to discuss in detail here) as a practical example of the complexities of legal ethics.

The solution actually used, removing the judges from the reformed pension system – thus eliminating the conflict, is a practical solution, but one that has raised its own criticisms. Whether this is good politics (in the Aristotelian sense) is a matter of ongoing debate.