The Illinois Supreme Court matters

 

                                                                                                                                         October 2022 

I have a unique perspective on the Illinois Supreme Court and on the pending elections for the Court’s justices. 

After graduating from law school in 1977, I served as a judicial clerk for two years for Justice Thomas (T.J.) Moran of the 2nd District. Moran was a life-long Republican in an era when Illinois Republicans weren’t gonzo. People from both parties respected the likes of Ty Fahner, Jim Edgar, Jim Thompson, Richard Ogilvie and Chuck Percy. They’ve been superseded by the likes of GOP gubernatorial candidate Darren Bailey and two of the candidates running for the Illinois Supreme Court. 

The Court’s seven justices are typically divided by political party; three Democrats from Cook County’s 1st District, the remaining four from the rest of the state, with four or three being Republican. 

The election matters because the Court majority is in the balance. A court of four Republican justices is likely to mean a well-financed attack against reproductive rights in Illinois, the one safe haven in the Midwest for women’s choice since the Dobbs decision overturned Roe v. Wade. The state’s highest court is responsible for interpreting Illinois’ laws and regulations and overseeing all of Illinois’ courts. Right now, the state supreme courts and state legislatures often surface as ground zero on hot button issues. 

The two hotly contested races that are in play are in the 2nd and 3rd districts; both adjacent to Cook County. Ironically, as formative as the Court seats are this election cycle, the races are positioned at the very bottom of voter ballots, tucked away with the long-worded referenda. [Note: Those voting in Chicago or in Cook County's suburbs can work these races but not vote in them.]

The 2nd District, to the north, pits Republican Mark Curran, who lost to Dick Durbin for the U.S. Senate two years ago, against Democrat Elizabeth Rochford, a Lake County judge. 

Rochford               Curran

The 3rd District, covering the southwest suburbs, pits Republican Michael Burke against Democrat Mary O’Brien, an appellate judge. Burke currently sits on the Supreme Court, having been appointed to the seat to replace then retiring Bob Thomas, who was a placekicker for the Bears a decade before his 20-year stint on the Court. 

During my clerkship, a commonsensical case came before the Court. The issue was whether the city of

 Chicago could bill rent-a-car companies for the parking tickets the drivers get. It made a big difference for both the city and the rent-a car companies like Hertz and Avis, the big two in those days. Most drivers of rental cars ignore parking tickets. Is the city going to chase them down when many don’t live anywhere near Chicago? The city loses all that revenue. On the other hand, the rent-a-car companies aren’t the ones parking illegally. On the third hand, it's easier for the rent-a car companies to incorporate a parking ticket fee into the contracts with customers. In legal terms, the argument was over something called vicarious liability. 

Let’s just say the playing field for oral arguments was not quite level. Representing Hertz was Don Reuben, considered then to be the heaviest weight among Chicago lawyers, or as his son was quoted as saying: "He knew all the social movers and shakers in the city, and represented a fair number of them. That always, therefore, put him at the center of what was happening in the city." 

The Court typically hears oral arguments in Springfield except for twice a year when the Court goes on the road, once to Northwestern University and once to the University of Chicago, where I went to law school. Phil Neal, a partner at Friedman & Koven and former dean of the law school where the arguments were held, represented Avis. He had home court advantage. Representing Chicago was a young assistant corporation counsel, playing the role of deer in headlights. He crossed the road and made it to the other side barely. 

After oral arguments, the justices meet in chambers and arrive at a preliminary vote for which way the decision will go. The closed door vote was unanimous, 7-0 for the rent-a-car companies. Justice Moran was chosen to write the opinion, which is typically issued a few months later. Justice Moran didn’t like to write and gave his judicial clerks inordinate latitude to frame the language of decisions. 

As I researched the case, I discovered opinions from the supreme courts of Ohio, Missouri and Iowa that involved similar city ordinances and those courts allowed the city to impose vicarious liability on rent-a-car companies, which of course owned the stable of cars but didn’t park them illegally. None of the lawyers in the case on either side mentioned any of the cases, or as Justice Moran wrote in the published opinion: “Our own research reveals four cases from other jurisdictions” that were right on point. 

The Court opinion was unanimous, 7-0 in favor of the city. The entire Court had reversed itself. Not bad for a Republican judge who cared about justice and for a 26-year-old pisher. 

Fast forward to today and election campaigns. I was at an unrelated fundraiser, where I discovered that the case made a mark on the practice of law in the state. Nothing to do with parking tickets or vicarious liability. It turns out that the case exposed the practice of rent-a-car companies providing cars as "gifts" to judges and “numerous elected and appointed officials in the city of Chicago.” It further resulted in the dissolution of Friedman and Koven, one of the firms in the case. The Illinois Supreme Court disbarred one of the attorneys. 

The Court disbarment opinion reads: “While some may view ‘clout’ as an acceptable means of doing business, we will not condone or tolerate this type of activity.” 

The Illinois Supreme Court matters. Choose wisely, my friends.

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