In Illinois, punishment is slow and lenient for errant judges
| December 4, 2015
Beset by too many cases and too little money, Illinois officials are struggling with their constitutional responsibility to investigate and punish errant judges.
It commonly takes years to act against judges who violate the Illinois Code of Judicial Conduct, and the punishment seldom is more than a public reprimand.
An investigation by Injustice Watch, a new organization devoted to exposing systemic problems that impede justice and equality, identifies widespread problems:
• The Judicial Inquiry Board, the agency that investigates judicial misconduct, has seen its budget shrink in recent years even as the number of complaints has grown.
• The backlog of cases has grown, and state officials warn that budget cuts hobble the agency’s ability to accomplish basic tasks.
• Vacancies on the Judicial Inquiry Board went unfilled for years, despite the auditor general’s criticism that the empty seats violated the Illinois Constitution and hampered the agency’s ability to function.
• Fewer than one in 100 complaints to the board end in public discipline, and the most common discipline, when it occurs, is a reprimand.
Judicial Inquiry Board complaints have had limited impact, in recent years, beyond whatever discipline the Illinois Courts Commission imposes. Since 2000, none of the judges who left the bench after a formal complaint have been suspended from practicing law. Judicial Inquiry Board complaints since then have not sparked any criminal charges. Even the judges removed for misconduct continue to collect their judicial pensions that often top $100,000 a year for life.
Ineligible, yet rewarded
In 2004 the Illinois Courts Commission, the agency that adjudicates Judicial Inquiry Board complaints, took the rare step of removing Francis X. Golniewicz III from office as a Cook County Circuit Court judge.
Golniewicz had used deception to win election, falsely stating where he lived to make himself eligible for election within a subcircuit miles from his home.
Once on the bench, furthermore, he made comments that called his temperament and impartiality into question. In one case, he taunted an African American defendant, “When I’m talking to you, boy, you look at me.” In another case, after jurors returned a verdict with which Golniewicz disagreed, he dismissed them curtly, tearing up certificates that had been prepared to honor them for their service, and declared in a voice loud enough for them to hear, “They don’t deserve them.”
The commission found those actions amounted to finding “a pattern of behavior that violated the judicial canons, demeaned the integrity of the judiciary, and brought the judicial office into disrepute.”
The commission also found that Golniewicz had won election to his judicial seat by deception. Golniewicz had initially been appointed by the Illinois Supreme Court to fill a vacancy in 1991, and served through court appointments until he won election in 1993 to a vacancy in the county’s tenth subcircuit, which includes a large portion of Chicago’s northwest side.
To be eligible for that position, Golniewicz, a Democrat, used his parent’s home address. But Golniewicz lived 13 miles away, in west suburban Riverside, with his wife and children. His parents’ home was “a Democratic stronghold,” while Riverside was a Republican stronghold, the commission noted, concluding he misstated his address “to run from the address that provided him the greatest chance of winning.”
Golniewicz served in that seat for the next 10 years, until he was removed from office. Holding the seat by deceit has proved lucrative: Golniewicz is receiving a pension for the 14 years he served. This year, his pension is more than $89,000.
Golniewicz said in an interview that the pension payments include money he contributed to the retirement account over 14 years of service. “It’s not as if I’m getting something for nothing,” he said.
He told Injustice Watch last week of the disciplinary process, “The process takes a really long time, cases drag on forever, and by the end of it no one cares.”
Scandal Bred Current System
The current Illinois judicial disciplinary system was created in the aftermath of a scandal involving two Supreme Court justices in 1969. The idea was to include in the process justices, trial judges, lawyers, and even non-lawyers.
Two new state agencies were created in 1970: The Judicial Inquiry Board, to investigate complaints of misconduct; and the Illinois Courts Commission, to adjudicate cases brought by the board.
Whether the system is ideal remains a matter of debate. “I’m not sure that having that two-tier system is all that effective because what you have is this sort of unknown, these two unknown bodies,” said James Alfini, dean of the South Texas College of Law, who co-authored a book on judicial ethics. “They don’t really report to anybody, so I’m not sure there’s much accountability.”
The question for the agencies as they examine a judge’s conduct is whether it violated the Illinois Code of Judicial Conduct. A large number of cases each year are dismissed without investigation because they involve disappointed parties to court cases – many writing from prison – who challenge legal rulings, not judicial conduct.
Cases Go On For Years
In May, the state auditor issued an alarming report. The Judicial Inquiry Board had 311 pending complaints by the end of fiscal 2014, and the auditor warned that “the growing inventory level increases the risk the board’s caseload will become unmanageable.”
Inquiry board officials told the auditor that there were many contributing factors. From 2008 through 2014, former Gov. Rod Blagojevich and then Pat Quinn left several non-lawyer seats on the board vacant. The auditor general warned that the vacancies violated the constitutional mandate and hampered the inquiry board’s ability to operate effectively. Gov. Bruce Rauner finally filled three new non-judge member seats this year, bringing the agency to the constitutionally-mandated number for the first time in years.
Another factor: The increasing number of complaints being filed by prisoners complaining of rulings by the trial judges who presided over their cases.
There also was the issue of money. Cynthia Gray, director of the Center for Judicial Ethics at the National Center for State Courts, said that judicial misconduct boards across the nation struggle with a lack of money that hampers their ability to respond in a timely manner to misconduct complaints.
“I don’t think any of them have enough [money] to do a thorough job, in particular, since they’re constantly being criticized for not doing a better job,” Gray said. “It does cost money to do a good job.”
The budget in recent years dropped by more than 15 percent in six years – from $785,000 in fiscal 2009 to $680,000 in fiscal 2015. For the current year, though the state has not yet enacted a budget, Gov. Bruce Rauner proposes the budget be cut another 10 percent, to $612,000.
Listen Retired Judge Raymond McKoski talks about low funding for the Judicial Inquiry Board in Illinois.
Of the six largest states in the nation, Illinois receives the smallest amount of funding for dealing with errant judges, a review by Injustice Watch shows. In Pennsylvania, a smaller state than Illinois, the Judicial Conduct board budget for fiscal 2015 was more than $1.5 million, with a full time staff of 11. The Texas budget for fiscal 2015, was $982,006, with a staff of 13 full-time positions.
The lack of money has an impact. The Illinois Judicial Inquiry Board has only five paid full-time staff, including two investigators for the entire state.
Inquiry board director Kathy Twine told auditors that for the first two years after she arrived at the agency, from 1998 to 2000, there were six to seven employees, who handled an average of 431 complaints each year. From 2012 to 2014, in contrast, the board had five employees, working on an average of 529 complaints in those two years, Twine told the auditors. She told Injustice Watch that there were 526 complaints in 2014, a dip from 546 the year before.
The auditor expressed concern that there is no requirement on how quickly cases should be handled, a problem heightened as the caseload grows and budget shrinks.
One case, seven years
No case highlights how slowly the disciplinary wheels can churn as much as the case against St. Clair County Associate Judge James C. Radcliffe. In February 1994, the U.S. Court of Appeals for the Seventh Circuit concluded that in 1992 Radcliffe had engaged in conduct that amounted to a “parody of legal procedure” and “violated so many rules of Illinois law – not to mention the due process clause of the Fourteenth Amendment – that it is not worth reciting them.”
The hearing was over efforts by a vending company and its lawyer to get Radcliffe to issue an injunction that would hinder a state liquor control agent’s investigation into illegal gambling. Radcliffe required the agent to take the stand and answer questions from the vending company’s lawyer about the investigation, without permitting the agent to talk to a lawyer. Radcliffe then issued a temporary injunction to block the agent from “illegally interfering” in the company business.
The Seventh Circuit sent a copy of its opinion blasting Radcliffe to the Judicial Inquiry Board, triggering an investigation and disciplinary proceeding that dragged on almost seven years until the courts commission suspended him for thirty days in 2001.
In explaining the delay, the courts commission noted several “extraordinary circumstances”: An ongoing federal investigation that may have delayed the Inquiry Board investigation; the reorganization of the courts commission after the constitutional amendment; and the resignation of the Judicial Inquiry Board lead counsel.
While those circumstances “explain most of the delay,” the commission order states, “the commission must also accept partial responsibility.” While no other case has taken that long, the process continues to be notable for its plodding pace.
How slow is the process? It took more than five years for the Courts Commission to reprimand Kankakee County Circuit Judge Gregory J. Householter for taking too long to dispose of his cases.
Twine, the board’s executive director, declined a request for an interview with Injustice Watch, saying, “At this time I am under time constraints with other matters.”
In fact, the staff of the agency struggles to produce the most basic information to the public about its operations.
The agency has not produced an annual report since 2012, which Twine said in an email was the result of budget cuts.
The auditor in May reported that the agency was unable to provide it with basic information about the types of complaints being filed because it was behind in reviewing and analyzing the incoming complaints.
More than three years, before dismissal
On June 16, 2007, McHenry County Circuit Judge Michael J. Chmiel received a telephone call from a local Republican committeeman and political ally. The official’s brother had been arrested on a felony charge of obstructing justice.
The defendant’s brother as well as his niece, who is an attorney and former prosecutor, wanted Chmiel to hold an emergency bond hearing so that the defendant could avoid spending the next day, Father’s Day, in jail.
Chmiel handled juvenile cases and had never held an emergency bond hearing. He nonetheless convened an emergency hearing that afternoon, and, with the approval of the state’s attorney office, granted the suspect’s release on $10,000 bond.
Word of the hearing spread among other attorneys and judges, and within days the supervising judge called in Chmiel to ask about it. The judges in the circuit held a special meeting, one supervising judge forwarded her concerns to the Judicial Inquiry Board, and by early July the local newspaper had written of the hearing and raised questions of special treatment, records show.
On February 25, 2008, the board charged Chmiel with three violations of the Judicial Code. Not only had Chmiel acted improperly by having ex parte conversations – discussions about a pending case without both parties being present – but he misled the board about his conversations, according to the board’s complaint.
The Illinois Courts Commission voted on November 19, 2010, to reprimand Chmiel. That was the most lenient form of discipline the commission could impose. The commission ruled that the inquiry board had proven that Chmiel’s acts had created the appearance of impropriety – that he took an action on behalf of a politically connected person he would not have taken for others –- but that the board failed to prove that Chmiel had committed any actual impropriety.
After all, the commission said, it was not improper for Chmiel to hold the hearing, nor for him to have ex parte conversations about the scheduling, as opposed to the substance, of the case. The bail was set appropriately by Chmiel, with the agreement of the prosecutors, the commission said.
Punishment often slow, seldom harsh
Chmiel’s case is one of several involving complaints by the Judicial Inquiry Board based on its complaint that a judge had taken action in a case to help a family or friend, including ex parte discussions – private meetings that, new judges are taught, can be a serious act of misconduct.
The Illinois Courts Commission’s handling of those cases demonstrates how the commission considers a wide range of factors in deciding what to do with the complaint. Among them: Was there a pattern of misconduct or one individual incident? Did the issue involve conduct on the bench? Had there been other complaints against the judge? Did the judge acknowledge acting improperly?
A review of the past cases reveals another pattern: The commission seldom imposes suspensions, and even more rarely considers removing judges from the bench for their misconduct. Of 24 cases decided by the commission since 2000, state records show, more than half were either dismissed altogether or ended in a public reprimand – the lowest form of discipline.
Raymond McKoski, a former judge now at John Marshall Law School, said that appropriate punishment for errant conduct is a nationwide issue. Although he said he thought Illinois did “pretty good” at imposing punishment, he said that across the country, “Suspension should be used more often, and maybe removal more often too.”
In Illinois since 2000, six judges were suspended, and three removed from the bench over their conduct. By comparison, in Pennsylvania during that period, 19 judges have been removed from office and 11 suspended, according to annual reports.
McKoski added, “I think suspension does send a message to the public, and maybe the judges, that this conduct will not be tolerated.”
The commission issued a reprimand in 2005 to the presiding judge of the DeKalb County Circuit Court, Kurt P. Klein, who had talked ex parte to a military recruiter about a potential recruit’s enlistment being delayed because of pending charges related to marijuana and drug paraphernalia possession. Klein assured the recruiter that he “believed something could be done,” arranged for the cases to be transferred to him, and then at the next hearing told the State’s Attorney that he hoped the cases could be resolved so the recruit could enter the army. The charges were quickly resolved.
Klein told the courts commission, “I sincerely regret my violations of the Judicial Code,” adding, “my conduct was unquestionably wrong and will never be repeated, no matter how compelling the circumstances.”
Cook County Associate Judge Douglas J. Simpson was publicly censured by the commission in 2011 as a result of his actions on behalf of a car detail shop owner who had a pending case before another judge. After he learned of the pending case while he was having his car detailed, Simpson went to the chambers of the assigned judge, to tell him the business owner was a “good guy.”
Simpson then sought to talk the other judge out of reporting his misconduct. The Judicial Inquiry Board had urged the Illinois Courts Commission to suspend Simpson, but the commission opted for the lessor censure, noting that other judges had attested to Simpson’s good character and the fact that he quickly later apologized to the other judge.
One judge who did get suspended over an ex parte discussion was Cook County Circuit Judge Charles M. Travis. The courts commission suspended Travis for one month in 2003 – a punishment that was jointly recommended by the judge and the Judicial Inquiry Board – for ethical violations.
Among them were Travis’ actions after a Du Page Circuit Judge issued a warrant for the arrest of his daughter in 2001. The trouble started when Downers Grove officials cited Cherie Travis for dumping coffee grounds and cat litter on a vacant lot next to her property. The warrant was issued when she failed to either pay the $75 fine or appear in court.
Travis called the Du Page Circuit chief judge, identified himself as a judge, and said the warrant should be quashed, the evidence of her arrest be expunged, and that either the court or the police apologize to his daughter.
Non-judge occasionally dissents
Most of the time, the courts commission issues its orders unanimously. But in two cases, commission member Paula Wolff, a non-judge member of the commission, objected as the majority voted to dismiss the complaints entirely.
Wolff contended that a reprimand should have been issued to Associate Judge Christopher G. Perrin of Sangamon County for the actions he took after his daughter received a traffic ticket for driving down a closed road. Perrin talked first to a police officer in the courthouse; then to a supervisory judge, and finally to the traffic court judge assigned to the case.
Perrin casually told the assigned traffic court judge that on the day his daughter was supposed to be in court she would be out of town, traveling with a church group to refurbish housing for the poor. The assigned judge dismissed the case, and falsely noted that he did so at the motion of the state’s attorney’s office, according to the courts commission order.
To the majority, “This is not a judicial corruption case,” since Perrin had not asked the assigned judge to take actions to dismiss the case. The majority felt that a private admonishment by the Judicial Inquiry Board would have been appropriate, and that no public action was called for.
But in her dissent, Wolff noted that Perrin, a new judge, had specifically been trained to know that these conversations constituted inappropriate conduct. Perrin made three mistakes designed to exert special influence on behalf of his daughter, she wrote.
“These actions go to the heart of the Code’s prohibition of ex parte communications and appropriate judicial conduct.” To not sanction Perrin, Wolff warned, will “serve as guidance for all the judges who now serve and will serve in the future.”
No decision once judge resigns
Twice in recent years, judges who faced discipline chose to step down before the commission took any action. In states such as North Carolina, that resignation would not stop the commission from ruling on the misconduct. But not so in Illinois, where the courts commission ruled in 1987 that it has no authority to rule in the cases of judges once they resign.
One such case involved Kane County Circuit Judge James T. Doyle, who faced a 2005 Judicial Inquiry Board complaint accusing him of abusing his position as chief of Kane County’s drug court.
The inquiry board said Doyle had repeatedly violated defendants’ rights, forcing them to admit to drug use and sending them to jail without telling them of their rights or making sure they were represented.
After the chief judge warned Doyle of the need to honor defendants’ rights, Doyle took defendants into back rooms, where no court reporter was present to record the proceedings, and continued actions the board concluded violated defendants’ rights, the complaint states. In one of many cases the board cited, Doyle sent a defendant to jail for 69 days, marking on the file that the defendant had violated his probation, though the defendant was not on probation and was given no opportunity to be heard.
Doyle stepped down before the commission decided his case, but remained an active advocate of drug courts.
Former judge McKoski, who has studied judicial discipline nationwide, said he is supportive of states who continue to hold hearings on misconduct even after a judge steps down.
“It’s giving the public an accurate picture of what that judge did good or bad,” McKoski said. “The public has a right to know if judges are performing in accordance with ethical rules.”
Now off the bench, Doyle is collecting an annual judicial pension – this year, earning more than $128,000.
Pension intact despite penalty
In fact, judges who are disciplined still earn their pensions, which includes both their contributions and significant contributions from the state general fund, after they leave the bench.
After Associate Judge Joseph C. Polito admitted that that he had been repeatedly using Will County work computers to access pornographic websites during work hours, the courts commission called his actions “highly inappropriate behavior,” and “an inexcusable waste of judicial time.”
As it suspended him for 60 days, the Illinois Courts Commission noted a more severe sanction was unnecessary since Polito said he would not seek reappointment when his term ended. Polito stepped down from the bench July 1 and began collecting his pension, valued this year at $6,415.78 per month.
Even the rare judges removed from office, like Golniewicz, are collecting their pensions.
In May, 2014, the commission removed Cook County Circuit Judge Cynthia Brim, based on a series of incidents that were attributed to her significant mental illness. In one incident, Brim attacked a sheriff’s deputy in the lobby of the Daley Center, and was later found not guilty by reason of insanity in the case.
When she was removed, a court spokesman said her $184,000 salary as a judge would stop immediately. What nobody said: Her pension for life would then start; this year, Brim is due to collect $152,438.40 from the state.