The U.S. Supreme Court heard oral arguments Tuesday in Caperton v. Massey Coal -- a closely watched West Virginia case in which what's at issue is the dignity of the judicial process.
Caperton dates back to 1997, when one mining company sued another over a canceled contract. A lower court ruled against Massey Coal and ordered it to pay $50 million in total damages. While that verdict was being appealed, Massey's CEO spent $3 million on a campaign to unseat a sitting state supreme court judge running for reelection. The campaign succeeded, and the new judge, after refusing to recuse himself, joined the 3-2 majority that ruled for Massey Coal and reversed the original verdict.
The question before the Supreme Court: When the taint of bias becomes so strong, does a judge have a duty to step aside? Said the editorial page of the Tuesday New York Times, "It is vitally important for the Supreme Court to say so."
Pinnick v. Corboy is a similar case here in Illinois. In Pinnick, the sums of money are, by and large, much smaller, but the impartiality of not one but four of the seven Illinois Supreme Court justices -- a majority -- has been called into question. All four justices were asked to recuse themselves, and refused.
Pinnick v. Corboy is a malpractice suit that last December was the subject of "Did Corboy & Demetrio Blow It?" a Reader cover story by James Merriner. Milvertha Pinnick was the stepmother of a woman killed instantly in 1995 when the rented Mitsubishi she was riding in went out of control on I-65 south of Crown Point, Indiana, and was hit head on by another car. The woman's two small children were severely injured. The prominent personal injury law firm of Corboy & Demetrio was hired to seek damages against Mitsubishi and the rental agency, but the firm neglected to impound the car, and without it the case collapsed. That's why Milvertha Pinnick, who has no health insurance and has exhausted her savings raising the two children, sued the firm.
Let me quote here from my earlier post about the suit:
"The family lost to the law firm in the trial and appellate courts. And last month, when the Pinnicks' new attorney, Charles 'Pat' Boyle, filed a motion asking the supreme court to hear the case, he coupled that to a fairly extraordinary request. He asked justices Thomas Fitzgerald, Charles Freeman, Robert Thomas, and Anne Burke to recuse themselves -- 'as all Justices have received campaign contributions well in excess of $10,000 from Defendants or Defendants' counsel, experts and witnesses.'
"The motion cited Rule 63 of the Illinois Supreme Court, which says, 'A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned,' and identifies one such instance as a proceeding in which a judge, or the judge's spouse, 'has an economic interest in the subject matter in controversy or in a party to the proceeding.'
"According to Boyle's motion, Fitzgerald has received over $52,000 from Corboy & Demetrio partners, Freeman $5,000, Thomas over $16,000, and Burke and her husband, Alderman Edward Burke, over $25,500.
"But Boyle argued that the appearance of impartiality was sullied by more than money. In addition to those 'substantial financial contributions,' there were the 'close and confidential relationships between Defendants and several Justices [and] Defendants' frequent invitations to Justices to participate in social gatherings, home and office visits.'"
In addition, Boyle observed that Thomas had recently won $7 million in a defamation suit against the Kane County Chronicle, and his lawyer in that case, Joseph Power, was now representing Corboy & Demetrio in Pinnick v. Corboy.
It could have come as no surprise to Boyle that the four justices refused to recuse themselves. In a sense, they had no choice. If only three justices had remained standing to hear the appeal it would have failed for lack of a quorum. Temporary replacements would have been needed to reconstitute the court, and twice before the court had held that it lacked the constitutional authority to appoint temporary replacements. In short, for the state supreme court to give Boyle satisfaction, it would have had to hold, in effect, that the Illinois constitution violates the due process clause of the U.S. Constitution.
The state supreme court obviously wasn't going to do that. But the U.S. Supreme Court might. And having taken all the steps he had to take first at the state level, on Tuesday Boyle filed a petition for a writ of certiorari with the Supreme Court..
The Supreme Court, says the petition, should "review the Order of the Supreme Court of Illinois denying recusal and, ultimately...vacate the Order and remand the matter to the Illinois Supreme Court for reconsideration in light of this Court's anticipated decision [in Caperton v. Massey Coal]... Or the Court should decide that as a matter of due process these four Justices were required to recuse themselves from this proceeding..."
And while the Court chews that over, Illinois state senator Kirk Dillard, a Hinsdale Republican, says he intends to introduce a constitutional amendment allowing for the appointment of interim justices here. Maurice Possley reported in the Sun-Times that Dillard thinks his amendment, which would first have to pass both houses of the General Assembly by a three-fifths vote, could be presented to the public on the November 2010 ballot.