The Law Bulletin Reports on Weaknesses in Recusal Rules

Last week, the Chicago Law Bulletin reported (unfortunately, a paid account is required to view the article) on a judicial recusal issue in the involuntary manslaughter trial of Richard Vanecko, a nephew of former Chicago Mayor Richard M. Daley. Cook County Circuit Judge Arthur Hill, who served under the former Mayor when he was State’s Attorney in the 1980s and was appointed to the CTA board by the Mayor, had been randomly assigned the case, and WGN reported yesterday that Judge Hill has stepped down from the case.

Richard S. Kling, professor at IIT-Chicago-Kent College of Law; Harold J. Krent, Dean at IIT-Chicago-Kent College of Law; and Ann M. Lousin, professor at The John Marshall Law School, all were interviewed for the Law Bulletin article. Each noted that judges are given a great deal of latitude in deciding whether or not to remove themselves from cases under Rule 63 of the Illinois Code of Judicial Conduct. Professor Lousin particularly noted that judges would benefit from “guidance when it comes to disqualifying themselves from cases”, such as examples from the State Supreme Court, illustrating when it is appropriate to recuse oneself from a case.  As noted in the Law Bulletin, in addition to the Rule directing judges when to recuse themselves, attorneys for each side in a case have a right to one motion for substitution of judge as of right, and either side may also file a motion for substitution of judge for cause.

Chicago Appleseed believes that clear recusal rules and strong recusal procedures are essential for maintaining the integrity of the judiciary.

Particularly, process-related improvements to Court rules are needed. It is essential that the Court create a mechanism by which recusal decisions can be reviewed or pursuant to which they may be appealed. This will ensure that disqualification questions do not remain solely in the hands of the judge in question, which can raise perception questions with the public.

A motion for disqualification—unlike a motion for substitution of judge as of right—is decided by a judge other than the judge named in the petition.  Such independent adjudication of recusal motions for cause is an obvious, intuitive means of making the process fair and meaningful.  However, it is merely a minimum requirement for transparent and reasoned decision-making. Judges rarely write opinions explaining recusal decisions, and recusal decisions are rarely closely reviewed.  The lack of a record surrounding recusal and disqualification decisions frustrates due process, impedes review of the decisions, and prevents the development of precedent or a framework for future decisions.

At Chicago Appleseed, we believe that judges who decide motions for substitution of judge for cause should be required to issue a written ruling with a rationale for the decision. The ruling need not be extensive—in part because Illinois law requires that the motion itself be written—but it must include sufficient information for meaningful review of the decision, if necessary.

Improved procedures, and written recusal decisions, will create predictable outcomes over time, by providing the guidance judges need to determine when to remove themselves form cases and by offering attorneys a body of precedent on which to base their own motions.

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