Madison County Trial Date Tango Ends With Judge Crowder Being Removed as the Asbestos Judge –

During my clerkship for a Justice of the Illinois Supreme Court, I learned (from being assigned to do the research) that most of the world builds its judiciary through a professional career path aimed at judging, and/or some form of "merit selection." In contrast, judges are chosen via political elections in some of the United States, including, for example, Illinois, Texas and West Virginia. The system of electing judges by popular vote is fraught with problems, including raising campaign funds. Fund raising usually involves an election committee for a judge asking for contributions from lawyers or committees. When lawyers or groups contribute any meaningful amount of money, questions arise regarding influence and/or an appearance of impropriety. But we keep using this process, and both defense and plaintiff groups keep giving money, sometimes stunningly large amounts.

This contribution process – and bad appearances – recently played itself out in Madison County, Illinois, after the conclusion of the process of awarding valuable trial dates for asbestos trials for 2013. Specifically, Judge Crowder is the current "asbestos judge" responsible for all of the hundreds of mesothelioma cases that are filed in Madison County each year. Cases are filed there for many reasons, including the vast and firm supply of trial dates which are the catalysts for resolving cases, especially when insurers are involved. As described in prior posts (here and here), there is process for awarding trial dates in Madison County, and it was unfolding over the last 30 days. Then, last week, Judge Crowder last week issued an order granting 485 trial dates for 2013, with 82% of the trial dates being awarded to plaintiff’s firms with offices in the Madison County area.

As it turns out, Judge Crowder’s campaign also was out asking for campaign contributions, which appears to be legal but very ill-timed. The Madison County Record reported the facts in a story by Ann Maher. According to others, contributions were being sought from a range of lawyers, including both defense and plaintiff firms. And, the contributions were duly reported to the Illinois State Board of Elections. As it turns out, contributions were made and amounted to $ 30,000, with $ 10,000 being contributed by various members of each of three plaintiff’s firms. Each of the three plaintiff’s firms received a large number of trial dates through the recent order.

After the contributions became public, Madison County’s Chief Judge, Ann Callis, issued an order removing Judge Crowder from her role of managing the asbestos docket. It has been said that the decision to remove Judge Crowder was made after a vote of all the circuit court judges – I do not know if that’s true. Judge Clarence Harrison was appointed to replace Judge Crowder on the asbestos docket.

Obviously the timing and facts smell bad regardless of what infers or does not infer. Remember, every contributor knew the contributions should be and presumably would be publicly reported. Similar bad smells and issues arise too often, based on contributions from both defense and plaintiff groups. Indeed, two years ago, the U.S. Supreme Court confronted the Caperton case, which raised due process issues arising from a West Virginia Supreme Court decision that favored a company with ties to massive campaign contributions to one of the justices of the West Virginia Supreme Court. Voting 5-4, the Court held that the West Virginia Justice was required to recuse himself. Set out below are key quotes from the opinion, as taken from this post on the great blog maintained by the Brennan Center for Justice at the New York University School of Law. The fractured views illustrate at least part of why the judicial election process is so fraught with issues. We really ought to be able to find a better way to build our state court judiciaries.

Here’s a later article confirming that Judge Callis consulted with the other judges before removing Judge Crowder. Yet a later article highlights that the contributions were sought and made after the trial dates were awarded, and that little had changed from last year. Thus, the activity showed poor judgment and timing, but was not a quid pro quo. And, Judge Crowder is planning to return the money.

"Justice Kennedy, writing for the majority:

"We conclude that there is a serious risk of actual bias – based on objective and reasonable perceptions – when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent. The inquiry centers on the contribution’s relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election."

"Justice Benjamin did undertake an extensive search for actual bias. But, as we have indicated, that is just one step in the judicial process; objective standards may also require recusal whether or not actual bias exists or can be proved…The failure to consider objective standards requiring recusal is not consistent with the imperatives of due process."

"Our decision today addresses an extraordinary situation where the Constitution requires recusal."

Justice Roberts, dissenting:

"…a ‘probability of bias’ cannot be defined in any limited way. The Court’s new "rule" provides no guidance to judges and litigants about when recusal will be constitutionally required. This will inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be."

Justice Scalia, dissenting:

"The Court today continues its quixotic quest to right all wrongs and repair all imperfections through the Constitution. Alas, the quest cannot succeed – which is why some wrongs and imperfections have been called nonjusticiable."

#LitigationIndustry