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No Judge Left Behind

At election time lawyers' groups routinely point out which judges they think should get booted from the bench. And the voters keep ignoring them.

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Susan McDunn had been a lawyer only nine years when she decided to run for Cook County circuit judge in 1990. She ran because she thought she was perfect for the job. "I know what my giftedness is," she says. "I'm an extremely fair person and have been since I was a child. I have very strong analytical abilities. But my most important quality is character."

McDunn, who grew up in the south-side neighborhood of Gage Park, says she had no political clout, which meant she had to upset the candidate backed by the Democratic Party in the primary. She figured her campaign would take six months' hard work. "I knew the odds were against me, but I knew it was possible," she says. "I thought, if God wants me to be a judge I'll make it, and if he doesn't, that's fine. And in six months I'll know one way or the other."

At times during her struggle for the bench she did seem to have the backing of a higher power--higher even than Mayor Daley and Ed Burke, the Democratic deities who usually create Cook County judges (Burke chairs the party subcommittee that decides which judges to slate). A lottery gave McDunn the top spot on the primary ballot. Her five opponents were all men at a time when women had started voting for women in much greater numbers than ever before. Some ward bosses refused to support their party's slated candidate, James Williams, perhaps because he happened to be African-American. And she had an Irish name.

With all this in her favor, McDunn still pulled only 29 percent that March. But Williams did no better; he and McDunn finished in a virtual tie. Williams was declared the winner by 180 votes out of 350,000 cast. McDunn sought and got a recount. The recount again showed Williams the winner, by 199 votes. But after 2,600 ballots were discounted because election judges had failed to initial them, McDunn prevailed by 167 votes. Because of the recount and the litigation surrounding it, McDunn didn't make it onto a general election ballot until 1992. She won, as the Democratic nominee in Chicago always does.

In Illinois, circuit judges serve six-year terms, after which they must win a retention election if they want to keep their jobs--jobs that now pay $150,000 a year. Voters are asked if the judges should be retained, and at least 60 percent of the votes cast for each has to be yes.

Citizens often complain that judges are too soft, but come election time they're the indulgent ones. As a result, judges have found recent retention elections to be no-lose situations. In the six elections since 1992, a total of 310 Cook County judges have been up for retention. All 310 have been retained.

This really frustrates Chicago bar groups. Every two years they spend thousands of hours interviewing the retention candidates, reviewing their records, soliciting assessments from lawyers, and poring over documents the candidates submit. Ultimately they find a handful of judges unfit for retention. The bar groups then spend thousands of dollars publicizing their findings in flyers and newspaper ads that urge voters to dump these judges. And then the voters retain them anyway.

This year the bar groups are once more trying to end the judges' streak. And they see one of their best chances in McDunn, who was retained in 1998 and is up for retention again, along with 70 other Cook County circuit judges. She's one of only two judges this year to get a thumbs-down from all nine bar groups evaluating the retention candidates. (The other is Dorothy Jones, who declined to participate in the groups' evaluation process and was downgraded partly for that.)

In 1998 and '99 McDunn blocked adoptions by two lesbian couples. In each case the prospective adoptive parent sought, with her partner's approval, to adopt her partner's child. Social service investigators gave the prospective parents glowing reviews, and the children's court-appointed advocate endorsed both adoptions. But McDunn said she couldn't tell if the adoptions were in the best interests of the children without a hearing in which evidence was presented that adoptions by lesbians were not in the children's best interests. She appointed the Family Research Council, a Washington, D.C., group opposed to gay adoptions, to be a "secondary guardian" to the children in the cases.

The women's lawyers asked the presiding judge of McDunn's division to remove her from the cases, saying she was biased against them, and the presiding judge granted the request. The presiding judge then took over the cases and approved the adoptions. But McDunn, who'd been transferred to traffic court, voided the approvals and continued issuing orders in the cases, contending the presiding judge had no authority to remove her or to make his rulings.

In 1999 the appellate court ruled against McDunn, voiding the orders she'd issued after she was removed from the cases. At the close of oral arguments before the appellate court, Justice Morton Zwick said McDunn had "discredited not only the judiciary but the citizens of Illinois." In its written opinion, the court blasted her "appalling" treatment of the women who'd sought the adoptions, called her appointment of the Family Resource Council "legally and logically indefensible," and attributed her actions in the cases to a "bias against lesbians."

After the appellate court ruling the Judicial Inquiry Board began investigating McDunn's role in the cases. Meanwhile the county's chief judge, Donald O'Connell, confined her to a desk job that included such work as reviewing pauper's petitions--requests by poor people that court costs be waived. O'Connell said he wanted to assure the public that a judge who decided cases based on "her own personal predilections" instead of on the "law and the facts" would not be hearing cases. In a Tribune column R. Bruce Dold called McDunn a "one-judge Moral Majority."

The complaint the Judicial Inquiry Board ultimately brought to the Illinois Courts Commission alleged that McDunn was guilty of judicial misconduct, having displayed bias in the adoption cases because of the petitioners' sexual orientation. The commission, which consisted of five judges and two laypeople, could have reprimanded or censured McDunn, suspended her without pay, or removed her from the bench. When McDunn asked in April 2002 that the complaint be dismissed, the commission--chaired by Illinois Supreme Court justice Mary Ann McMorrow, a Chicago Democrat--ruled against her. But McDunn renewed the motion to dismiss later that year, by which time McMorrow had been replaced as chair by Supreme Court justice Robert Thomas, a Wheaton Republican. This time the commission dismissed the complaint. In his ruling Justice Thomas wrote, "The only bias suggested by [McDunn's] orders is one towards fulfilling her mandated duty of placing the best interests of the children above all others."

Susana Darwin, a former president of Chicago's Lesbian and Gay Bar Association, called the ruling "outrageous," adding, "How do you deter other judges from abusing power like this?"

After she was cleared, McDunn was reassigned to a courtroom in the Daley Center, where she now presides over cases involving personal injury and property damage.

When the Chicago Bar Association released its judicial evaluations in early October it recommended that McDunn not be retained because she'd failed to show the "legal knowledge and ability" a judge should have. The Chicago Council of Lawyers, the area's second-largest bar group (after the Chicago Bar Association), announced its ratings a week later. It found seven of the judges on the retention ballot not qualified, but its critique of McDunn was as long as its critiques of the other six judges combined. It noted that it had found her not qualified for retention in 1998, after lawyers complained about her temperament on the bench and expressed qualms about her understanding of the law. But most of the current critique focused on her actions in the adoption cases, which the CCL said confirmed its 1998 conclusion that she was unqualified for the bench. "She abused her position," the CCL said.

Leaders of the bar groups fighting to oust McDunn say the results in the last retention election, in 2002, show that voters might finally be willing to unseat judges the groups have declared unfit. Two judges they targeted that year barely got the necessary 60 percent. Judge James T. Ryan survived with 62 percent and Judge James Jorzak with 64 percent.

But the smart money would still be on McDunn. First there's her surname. In judicial elections Cook County voters have long marked their ballots as if they were choosing the Saint Patrick's Day parade committee. Their clear preference for O'Judges and McJudges has occasionally led judicial candidates to adopt Irish aliases for the ballot. (McDunn is a genuine McDunn.) In retention elections the NR--not recommended--after a candidate's name on the bar group flyers hurts, but not as much as the Mc at the front of the name on the ballot helps.

Then there's McDunn's gender. Only one woman judge has ever been dumped in Cook County, and voters have shown a particular fondness for female judicial candidates in recent elections. In 2002 only 25 of the 61 judges up for retention were women, yet the top 15 finishers in terms of votes were all women. Nine of them had distinctly Irish names, including Kathleen Kennedy, Carol McCarthy, and Kathleen McGury.

McDunn is also on the ballot at a good time. While it's always been unusual for a judge to be ousted, it's almost never happened in a presidential election year. In the 20 retention elections since Illinois began holding them in 1964, voters have expelled a mere 15 Cook County judges, and only 2 of them were ousted during a presidential election. Perhaps this is because precinct workers are more active in presidential election years, and precinct workers usually advise voters to retain all the judges.

McDunn will also have the help of her colleagues--and through them, the critical aid of the Democratic Party. Since 1984 the "Committee for Retention of Judges in Cook County"--consisting of the judges up for retention in a given year--has worked to ensure that no judge is left behind.

The committee was created shortly after the announcement of the first indictments in the federal Greylord probe into judicial corruption in Cook County. "There was a real panic about a voter backlash then," says former circuit judge Lou Garippo, one of three retired judges who started the committee. Indeed, in the 1986, '88, and '90 elections a total of 11 Cook County judges, several linked to Greylord or other federal investigations, were ousted by voters. But the retention committee's fund-raising efforts and projudge publicity helped prevent a general purge; 118 judges were retained in those three elections.

Given that the Greylord cases ended more than a decade ago, and given that no judge has been ousted by voters since 1990, one might think the committee is no longer necessary. Judges don't agree. They still insist that a mass ouster is just one badly timed calamity away. "They worry that one of them will put a guy out on bond, and three days before the election the guy'll kill someone," says Garippo. Despite their perfect record in the past six elections, he still insists, "Judges are vulnerable--they really are." And Brian Crowe, the lawyer and former judge who's cochairing the retention committee this year, says, "Just because it's been a while since a judge wasn't retained shouldn't cause us to say it isn't going to happen again."

The retention committee is complaining this year, as it has before, about the small number of voters who punch no on each judge--out of spite or cynicism or who knows what. An automatic no vote is "irresponsible," according to the committee's Web site, and endangers "the judicial establishment, our government and our way of life."

Yet the committee seems to consider it responsible for voters to automatically punch yes on each judge. It says it favors the "retention of qualified judges," but in practice it helps every judge up for retention, qualified or not. One of the "Frequently Asked Questions" on the committee's Web site is "Can I vote 'yes' for all judges?" The answer is "Absolutely. . . . There is nothing irregular about that. . . . Remember, these men and women who serve the judiciary do so out of public service to protect your rights and they need your support."

The committee also raises $200,000 that's used to help all retention judges--each judge ponies up $900, and the rest of the money is contributed by lawyers. The committee pays for newspaper ads that exhort voters to retain all judges, and it prints 3,000 postcards for each judge urging that he or she be retained, along with all the other judges. A public relations firm representing the committee arranges for photos of the judges grouped by ethnicity and gender. The photo of the Irish-American judges is sent to the Irish American News, the Italian-American judges to the Italian monthly Fra Noi, the African-American judges to the Chicago Defender, the Jewish judges to the Chicago Jewish News and the Chicago Jewish Star, the Hispanic judges to Extra, and the Polish judges to the Polish Daily News. McDunn is in the photo of the women judges in this month's Today's Chicago Woman.

A sizable chunk of the committee's funds is used to persuade the county's Democratic and Republican parties to support all of the retention candidates. The committee recently sent checks for $50,000 to the Democratic Party and $25,000 to the Republican Party. In return the parties' precinct workers hand out literature urging voters to retain all judges.

The parties have been dependable, equal-opportunity supporters of retention judges, backing them regardless of their race, religion, sexual orientation, or bar ratings. Before the 2002 election, as before previous elections, the chair of the Cook County Democratic Party, Tom Lyons, told reporters he wouldn't "play God" by telling voters not to support a particular judge. He added that it would take "probable cause of an act of moral turpitude" for the party to consider opposing a judge.

Gino DiVito, a former circuit judge and appellate judge who's now in private practice, has chaired the judge's retention committee three times. He says the committee's donations to the parties are an act of self-preservation: "Judges fear that if either of the parties ever said, 'Vote no on all judges,' it would be death for judges, or if the parties picked out certain judges to oppose it would be death for those judges."

DiVito chaired the retention committee until July. He says he stepped aside mainly because of a busy work schedule, but he allows that he'd also realized the retention committee might unintentionally be helping the worst judges. "For the most part, good judges don't have much to fear," he says, "and judges who get negative ratings do."

The Democratic Party's undiscriminating support of the retention candidates--support perhaps influenced by the committee's contributions--is probably the chief culprit. In 2002 the bar groups' campaign to oust judges Ryan and Jorzak seemed to work in the suburbs, where both judges got a little less than 60 percent. But in the city, where precinct workers are more active, Ryan and Jorzak got enough votes to offset the suburban shortfall and stay on the bench another six years.

Legislators could make retention harder by simply increasing the required percentage of yes votes. But the problem isn't that getting retained is too easy. It's supposed to be easy--to free judges of political concerns. Making retention harder might cause judges to worry about the political impact of their decisions even more than they do now.

The real problem is the way judges are selected in the first place. Most states with retention elections initially choose their judges through some form of merit system rather than through a popular election. Judges in such states typically are nominated by bipartisan committees of lawyers, after which the governor, the legislature, or the supreme court makes the selections. Bar associations have been advocating merit selection in Illinois since the early 50s, but the entrenched political powers--mainly the Chicago Democratic Party bosses--have never been interested. The bosses claim it's elitist for committees of lawyers to choose judges, a job they think should be reserved for themselves.

Under the current system, few voters consider the judges on the ballot carefully. Surveys of voters leaving polling places have shown they remember hardly any of the names of the judges they voted for moments earlier. In 1990 Cook County voters turned down the retention bid of circuit judge John Tully, giving him a yes vote of only 49 percent--the lowest in the history of Cook County retentions. But Tully was also on the ballot for the appellate court in the same election. The voters who'd found him unsuitable for the lower court promoted him to the higher one.

Judge McDunn opposes merit selection--no surprise, given the way lawyers have rated her. She says the ratings process is "very unfair." The lawyers consider "all kinds of hearsay. They never disclose our accusers to us, so we don't get to confront them or cross-examine them. Because of what I've gone through and the unfairness in the [ratings] system, I believe we must have an elective system. The bar associations have a lot of power and control over judges because of these ratings, but they still don't have total control, because it's ultimately up to the electorate."

McDunn says it's "just not true" that she loses her temper in court, even though the Chicago Council of Lawyers says some lawyers claim she has. "I'm a very patient and laid-back person," she says. "I have much forbearance. I'm a very good person just generally." She isn't surprised that some lawyers would take shots at a judge, because judges "all the time make people unhappy."

And she's not antigay, she says, despite what the appellate court asserted and despite the way the press and the bar groups have "smeared" her. She simply believes it's unclear whether adoptions by gays are in the best interests of children. "There are two sides on this issue," she says. "The world is divided on it, the experts are divided on it--that's a reality." She just wanted a hearing at which those two sides could be aired. She says she doesn't even have an opinion on the matter. "I never really frankly thought about the issue until I had to on these cases."

She realized she was taking an unpopular stance by ordering a hearing in the cases and realized that it could spell trouble for her. "I knew I was going to make everyone angry and unhappy, and I was persecuted and maligned because of my decision," she says. "But it's our duty as judges to never be swayed by fear of criticism. Judges are supposed to follow the law, not bow to political and social pressures." She says that the way she stood her ground shows why she should be retained. "Voters should vote for me because I am a judge of integrity who's been tested by fire. I am exactly the kind of judge they need."

On November 2 voters will have a chance to decide whether she's that, or whether, as the Chicago Council of Lawyers says, she has "attempted to exploit her authority in the legal system to advance her own personal beliefs." But many voters will simply follow the directions of the precinct workers to vote yes for the retention of all judges. And many of those who do give McDunn more careful consideration will focus on her key credentials--the name Susan and the Mc.

Art accompanying story in printed newspaper (not available in this archive): illustration/William L. Brown; photo/courtesy Office of the Chief Judge.

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