By PETER HANCOCK
Capitol News Illinois
[email protected]

SPRINGFIELD – Two newly-elected justices of the Illinois Supreme Court have declined to recuse themselves from a case challenging the state’s recently passed ban on assault weapons and high-capacity magazines.

The court as a whole also issued an unsigned order declining to disqualify them.

Attorneys for the plaintiffs in the case, which include state Rep. Dan Caulkins, R-Decatur, filed a motion March 30 asking Justices Mary Kay O’Brien and Elizabeth Rochford, both Democrats, to recuse themselves from the case or, in the alternative, that the court disqualify them from participating.

The motion noted that both received substantial campaign donations during their 2022 campaigns from Gov. JB Pritzker and House Speaker Emanuel “Chris” Welch, both of whom are named defendants in the case. The motion also noted that both received endorsements from two prominent gun control lobby organizations, Gun Violence Prevention PAC and Giffords PAC.

According to campaign finance records, both judicial candidates received $500,000 each from the JB for Governor campaign and another $500,000 each from the Jay Robert Pritzker Revocable Trust. Both also received contributions from Welch’s campaign committee, $350,000 for O’Brien and $150,000 for Rochford.

“The significance of the campaign contributions cannot be understated as often in politics, cash follows cash, especially when one considers the stake the Governor and/or Speaker were taking in the race(s),” the motion stated. “Thirty-Nine percent (39%) of Justice O’Brien’s cash came from litigation stakeholders. Thirty-Six percent (36%) of Justice Rochford’s cash came from litigation stakeholders.”

The motion also cited a joint statement from G-PAC and Giffords PAC issued Nov. 9, the day after the election, in which the groups touted the victories of 88 “gun-safety” candidates they had endorsed in the election.

“Chief among them are victories in both contested Illinois Supreme Court races as well as a pickup in the Illinois Senate and four pickups that build the supermajority in the Illinois House,” the groups said.

“G-PAC congratulates the gun safety candidates who were victorious in the general election, particularly newly elected Supreme Court Justices Elizabeth Rochford and Mary Kay O’Brien as well as Senator-elect Rachel Ventura and Representatives-elect Diane Blair-Sherlock, Nabeela Syed, Mary Beth Canty and Laura Faver Dias,” they said.

In their motion, the plaintiffs’ attorneys conceded that there is no Supreme Court rule specifying how a justice could be disqualified. But they did cite portions of the Illinois Code of Judicial Conduct, which states in part that, “A judge shall be disqualified in any proceeding in which the judge’s impartiality
might reasonably be questioned.”

That includes cases in which the judge has a personal bias or prejudice concerning the parties, attorneys or issues involved, as well as cases in which the judge has made public statements outside of a court proceeding that appear to commit the judge to a particular decision.

In Illinois, the decision on whether Supreme Court justices should recuse themselves from a case rests solely with the justices themselves, and both O’Brien and Rochford declined to do so.

In separate orders written by each of the two justices, O’Brien and Rochford noted that the plaintiffs did not point to any specific pledges or statements that would indicate a bias in the case. They both also argued that the contributions they had received were within the state’s campaign finance limits for judicial elections.

Both justices cited a case involving now-retired Justice Lloyd Karmeier, a Republican, who was asked in 2014 to recuse himself from hearing an appeal in a $10 billion class action lawsuit against tobacco giant Philip Morris. Plaintiffs in that case argued that Philip Morris’ parent company, Altria Group, had given $500,000 to a group that supported Karmeier.

“The claim that a judge may not hear a case because a party may have some association with a public interest group or political party that did support or may have supported the judge’s candidacy has no basis in the law, would be unworkable and is contrary to the very notion of an elected judiciary,” Rochford quoted Karmeier as writing at the time.

“When judges are elected, as the Illinois Constitution requires, it is inevitable (and entirely appropriate) that interest groups will support judges whose judicial philosophies they believe are most closely aligned with their own views,” Rochford’s quotation of Karmeier continued.

O’Brien quoted Karmeier as well, stating: “Litigants must not be permitted to create the grounds for recusal by criticizing the judge or casting sinister aspersions, nor may a party engage in ‘judge-shopping’ by manufacturing bias or prejudice that previously did not exist.”

Lawmakers passed the ban on more than 170 types of semiautomatic firearms and high-capacity magazines during a special lame duck session in January. Gov. JB Pritzker signed it into law within hours of its passage, making Illinois the ninth state to enact such a ban.

There are currently two challenges to the law pending in state courts. The Caulkins case originated in Macon County while a separate suit filed by attorney Thomas DeVore, the 2022 Republican candidate for attorney general, originated in Effingham County.

The Supreme Court agreed to hear the Macon County case on an expedited schedule while the Effingham County case is being held “in abeyance” pending the outcome of the Macon County case.

The law is also being challenged in federal court in East St. Louis where a judge heard oral arguments last week.

Capitol News Illinois is a nonprofit, nonpartisan news service covering state government. It is distributed to more than 400 newspapers statewide, as well as hundreds of radio and TV stations. It is funded primarily by the Illinois Press Foundation and the Robert R. McCormick Foundation.