The Illinois Supreme Court has issued a policy governing the use of generative AI. The policy is consistent with the ABA’s Formal Opinion on AI that came out last summer. Unsurprisingly, the Illinois policy extends an attorney’s ordinary ethical obligations to the use of generative AI, holding lawyers accountable for understanding how the technology works, as well as checking for errors and hallucinations, before filing anything with the court.
Tag: Illinois
Illinois courts grapple with forum shopping law
The Judicial Conference of the United States made headlines last March when it instituted a new policy designed to prevent plaintiffs from strategically choosing a particular court (and really a particular judge) to hear their cases. The move toward random case assignment was an effort to balance a plaintiff’s traditional power to choose the forum (subject to important jurisdictional and venue limitations) against the growing scourge of “judge shopping” in cases seeking nationwide injunctions against federal government policies.
The Illinois Supreme Court is now confronting a similar question about a plaintiff’s limits on the choice of forum. In 2023, the Illinois legislature passed a law that requires constitutional challenges to state laws to be filed in either Cook County (the state’s largest county) or Sangamon County (the seat of state government). The law appears to have been a reaction to a series of lawsuits challenging legislation ending cash bail, banning assault weapons, or mandating specific actions in light of COVID-19. By limiting such suits (and those like them) to two designated counties, the state can restrict plaintiffs from selecting a court elsewhere in the state whose judges might be more sympathetic to a constitutional challenge. (Remember that Illinois trial judges are elected, and their political leanings may be easier to decipher as a result.)
But what if the plaintiff’s closest and most convenient court is not one of the two designated in the law? In the case now before the Illinois Supreme Court, a gun shop located in East Alton (just across the border from St. Louis, Missouri) brought a challenge to the constitutionality of a 2023 firearms regulation. The case was filed in Madison County, the plaintiff’s home county, whose courthouse is located about half an hour away. Citing the forum shopping law, the state (as defendant) tried to move the case to Sangamon County, which is about 90 minutes away. The judge based in Madison County denied the motion, arguing that forum shopping law denied parties their due process rights by depriving them of their ability to mount their best possible case. The state appealed.
On the face of it, this case is not an obvious example of forum shopping. The Madison County court is indeed the home court of the plaintiff and the most convenient location. Moreover, if judges are randomly assigned cases within a judicial circuit, Madison County does not provide a strategic advantage over Sangamon County. The former (located in the state’s Third Judicial Circuit) has 20 circuit judges; the latter (located in the Seventh Judicial Circuit) has 21. In either case a random assignment would give a plaintiff only a 5% chance of landing a specific judge.
Underlying all of this is the state legislature’s engagement in the administrative workings of the courts. It will be interesting to see how the state supreme court untangles this issue.
Illinois Supreme Court puts hold on cashless bail plan
The Illinois Supreme Court has stayed implementation of legislation that would eliminate cash bail in the state. The law known as ther Pretrial Fairness Act was set to go into effect on January 1. WTTW reports:
Roughly half of the state’s elected prosecutors had sued to stop the law from taking effect. On Wednesday, they won when Kankakee County Judge Thomas Cunnington issued an opinion that found the Pretrial Fairness Act unconstitutional. Cunnington said for the legislature to dictate pretrial detention procedures violated the separation of powers.
Cunnington’s opinion allowed the 65 counties that were party to the lawsuit to keep their current bail system in place.
But Illinois Attorney General Kwame Raoul said that Cunnington did not enter an injunction, so the 37 counties that were not part of the suit could move forward with cashless bail, and judges in all of Illinois’ 102 counties could choose to follow the Democrat-backed Pretrial Fairness Act if they so choose. That would have created a situation leading to a lopsided criminal justice system in which defendants would be treated with drastically different approaches where they were arrested.
In the short term, the state supreme court’s stay prevents inconsistent application of cash bail procedures across the state — a basic tenet of due process. The law’s long-term prognosis, however, is uncertain. Violent crime in Chicago is through the roof, and opponents argue that ending cash bail poses a clear risk to public safety.
More on the Pennsylvania plan to create partisan judicial elections by district
I was pleased to weigh in this week on the proposed Pennsylvania legislation that would shift partisan elections for its state supreme court from a statewide ballot to a regional one. (More on the proposal here and here.) As the Spotlight PA article suggests, my concern is not with creating geographic districts, but rather with the potentially explosive mix of districts and partisan races. That combination seems to me to especially invite special interest and dark money, similar to the notorious 2004 supreme court election in Illinois.
Interestingly enough, South Carolina is also considering a move to expand and diversity the geographic perspective of its supreme court, which is chosen entirely by the legislature. We’ll continue to follow both proposals here.
Cook County attorney steals a page from Trump’s playbook
Back in November, Illinois attorney Frank DiFranco ran for a local judicial seat in Cook County. He lost the election to incumbent Patricia Fallon. But that isn’t stopping DiFranco from trying to change the election outcome in court. The Chicago Tribune reports:
The federal lawsuit, which names the clerk’s office, Cook County Clerk Karen Yarbrough, the Illinois State Board of Elections and Fallon as defendants, alleges that the clerk’s office continued counting ballots after the Nov. 17 state deadline and that a “great majority” of these ballots favored his opponent.
“The clerk’s motivation for including votes received after Nov. 17 to the vote tally in the 12th Judicial Subcircuit was to help the Democratic candidate win,” DiFranco’s lawsuit alleges.
In his complaint, DiFranco also accuses the clerk’s office of “altering” the postmarks on vote-by-mail envelopes to make them “appear to have been postmarked on or before Nov. 3,” and claims the clerk’s office counted ballots that had already been counted, resulting in higher vote totals.
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Fallon in November attributed her win to the large number of mail-in votes, which were still being counted when DiFranco appeared to be leading in the race.
It’s perfectly fine for judicial candidates, like any candidate, to vigorously monitor election results, including asking for recounts in close races. But when votes have been certified and there is little real evidence of wrongdoing (as opposed to naked allegations), relitigating elections in court can only undermine the legitimacy of the judiciary and the democratic process.
Illinois approves notification of court dates by text message
Another misleading headline: Illinois Supreme Court approves new rule allowing for an expansion of text messaging in courts.
No, people are not actually allowed to send text messages while in court. Rather, the new rule permits individual court administrators in Illinois to implement text message notification programs. The primary goal seems to be getting people to show up for their court dates.
Text messaging programs are a supplement and not a substitute for any notification required by Supreme Court Rule and any failure to participate in a text messaging program will not be considered or used as evidence against the person in any court proceeding.
Participants will be afforded the ability to opt out of the program at any time.
The phone information provided and collected for the purpose of inclusion in a text message notification program under the new Rule will not be made part of the official public court record and shall not be utilized for any other purpose.
An eminently sensible change.
Experienced judge tapped to fill seat on Illinois Supreme Court
Earlier this month, Illinois Supreme Court Justice Thomas Kilbride became the first member of that court to lose a retention election. More than 57% of voters elected to retain Kilbride on the court, but because of the state’s unique rules requiring more than 60% of voters to support retention, Kilbride lost his seat.
Now his replacement has been named. The state supreme court has appointed Judge Robert Carter, a veteran of the state bench for more than 40 years, to complete Kilbride’s term through the 2022 election.
Carter seems to be an excellent choice. He is highly experienced, and has stated that he has no interest in running for the seat when it comes up again in two years. That will allow for a fresh start among candidates who want a full term. In this sense, Carter is playing the role akin to a U.S. Senator temporarily appointed by the state’s governor to fill a vacancy.
Election 2020: a quick state court roundup
Even with all eyes trained on the Presidential election, voters in more than thirty states also cast ballots this week for (or against) state judges. Here are some of the preliminary stories coming out of Election Day:
In both Dallas County and Harris County, Texas, Democrats swept the contested judicial races, making it yet another election cycle in which a single party has taken control of the state judiciary in Texas’s two largest metro areas. In North Carolina, a party sweep of another type took place, with Republican judicial candidates winning each of their judicial races. Neither case should be seen as good news. Party sweeps strip the courts of critical judicial experience, replacing it only with a partisan fetish that a judge with an (R) or a (D) next to his name will rule in a certain way. If the judges are fair, the partisans are more often than not disappointed by some case outcomes. And if the judges give the partisans what they want every time, the integrity of the judiciary is compromised. (Just a thought: perhaps it is finally time to eliminate partisan judicial elections altogether.)
In Illinois, for the first time, a sitting supreme court justice lost his retention bid. A little less than 57% of voters chose to retain Justice Thomas Kilbride, but under the state’s unique rules, at least 60% of voters needed to favor retention for Kilbride to keep his seat. Thus we have the unusual circumstance in which a judge whom most voters wanted to retain nevertheless will have to leave the bench. (The unusual nature of Illinois’s judicial retention system has an equally unusual history, which I might try to unpack in a future blog post.)
In Tampa, Florida, a state trial judge who lost his primary race in August pushed the state supreme court not to certify this week’s judicial election results. The judge is arguing that the current state law allows judicial races to be settled in the primaries, whereas the state constitution requires that they be decided during the November general election.
And in Arizona (where ballots are still being counted as of this writing), the Maricopa County Democratic Party campaigned against the retention of two state trial judges, including the only Native American judge on the Maricopa County Superior Court. Both targeted judges were deemed by the state’s independent Commission on Judicial Performance Review to have met performance standards. Unlike Illinois, a simple majority in favor of retention is enough to keep the judges on the bench.
How coronavirus is affecting the courts — April 3 update
The novel coronavirus is affecting societies worldwide, and judicial systems are no exception. Here is a selection of the latest news and profile stories on how courts are dealing with the epidemic:
What is the state of Israel’s courts in the time of coronavirus? (Jerusalem Post)
Uncertainty looms over Supreme Court as lower courts transition to teleconferencing (Washington Free Beacon)
Federal Judge’s Sentencing acknowledges COVID-19 (Forbes) (a story about the sentencing of certain defendants in the “Varsity Blues” college admissions scandal)
COVID-19 and Online Dispute Resolution: It’s a Whole New World Out There (op-ed for the Connecticut Law Tribune)
7th Circuit suspends most paper copies to slow spread of COVID-19 (Chicago Daily Law Bulletin)
Previous roundup coverage here. And check the home page for additional discussion of coronavirus and the courts.
When should judges speak out?
Justice Sonia Sotomayor drew attention last week when she filed a dissent in a case staying the issuance of a preliminary injunction against the federal government. The injunction had been issued by a federal district judge in Chicago, and barred the Trump Administration from implementing a “public charge” policy that would require immigrants seeking green cards to demonstrate that they would not need government assistance. Beyond disagreeing with the majority’s decision to overturn the injunction, Justice Sotomayor expressed dismay with her colleagues’ readiness to entertain “extraordinary” appeals from the Trump Administration, rather than letting those appeals first work their way through the intermediate appellate courts. She wrote:
[T]his Court is partly to blame for the breakdown in the appellate process. That is because the Court—in this case, the New York cases, and many others—has been all too quick to grant the Government’s “reflexiv[e]” requests. But make no mistake: Such a shift in the Court’s own behavior comes at a cost. Stay applications force the Court to consider important statutory and constitutional questions that have not been ventilated fully in the lower courts, on abbreviated timetables and without oral argument. They upend the normal appellate process, putting a thumb on the scale in favor of the party that won a stay. (Here, the Government touts that in granting a stay in the New York cases, this Court “necessarily concluded that if the court of appeals were to uphold the preliminary injunctio[n], the Court likely would grant a petition for a writ of certiorari” and that “there was a fair prospect the Court would rule in favor of the government.”) They demand extensive time and resources when the Court’s intervention may well be unnecessary—particularly when, as here, a court of appeals is poised to decide the issue for itself.
Perhaps most troublingly, the Court’s recent behavior on stay applications has benefited one litigant over all others. This Court often permits executions—where the risk of irreparable harm is the loss of life—to proceed, justifying many of those decisions on purported failures “to raise any potentially meritorious claims in a timely manner.” Yet the Court’s concerns over quick decisions wither when prodded by the Government in far less compelling circumstances—where the Government itself chose to wait to seek relief, and where its claimed harm is continuation of a 20-year status quo in one State. I fear that this disparity in treatment erodes the fair and balanced decisionmaking process that this Court must strive to protect.
Perhaps unsurprisingly, the dissent drew vindictive attention from President Trump, who took time away from his visit to India to chastise Sotomayor and suggest that both she and Ruth Bader Ginsburg (who publicly criticized Trump in July 2016) recuse themselves from all future cases involving Trump or the Trump Administration. “I just don’t know how they cannot recuse themselves with anything having to do with Trump or Trump-related,” the President said.
The U.S. Supreme Court was not alone in facing scrutiny for the perceived political statements of judges. In Alaska, Chief Justice Joel Bolger has been drawn into a controversy surrounding an effort to recall the state’s governor, Mike Dunleavy. Proponents of the recall allege (among other things) that the governor showed lack of fitness for the office by refusing to appoint a trial judge within the 45-day period prescribed by statute, and by “improperly using the line-item veto to … attack the judiciary and the rule of law.” The legality of the recall was challenged in court, and the state supreme court will hear the case on March 25. But some are calling for Bolger to recuse himself from the recall decision, given that Bolger commented on the governor’s behavior at the time of the trial judge appointment controversy. (Bolger also criticized the line-term veto in a separate speech.) Bolger has declined to remove himself from the case of his own volition, but the supreme court did take the unusual step of issuing a letter inviting motions to disqualify if others felt it was warranted.
It is certainly true that judges must take care in their public pronouncements, especially as they relate to politics, public policy, or other government officials. Diving recklessly into partisan political debate is a time-honored recipe for eroding the legitimacy of the judicial branch. But it is also true that the judiciary is an independent branch of government, and should have a voice on issues that affect it as an institution. Where do we draw a sensible line?
The Interdependent Third Branch 