Judiciary

Legal Aid Safety Net Stretched Thin

Adam Doster — Thu, 01 Oct 2009 13:00:33 -0700

Fighting your way through the legal system is difficult enough for those with social and economic capital. For the poor, it can be an impossible and demoralizing task.

Yesterday, the Legal Services Corporation (LSC) -- a publicly-funded entity that supports more than 900 legal aid offices across the country -- released a new report on what they call the American "justice gap." The results are disheartening. Legal aid clinics turn down an estimated half of their potential indigent clients (about one million people in total) because of insufficient resources. This piggy-backs off research published in July by the Center for Law and Social Policy, which estimated (PDF) that less than 20 percent of the legal needs of low-income Americans are being met.

The LSC report formulated their estimates via research conducted in seven states -- not including Illinois. However, the paper updates data the organization collected (PDF) in 2005, during which Illinois was surveyed.

Like others around the country, our state's legal aid safety net has huge holes. While the average low-income household (at or below 150 percent of the Federal Poverty Level) faced 1.7 legal needs per year, only 16.4 percent of those needs were met. Part of the problem is outreach: Only 23 percent of eligible Illinoisans knew free legal aid existed. The other problem is one of resources. In 2003, the equivalent of 280 full-time legal aid lawyers serviced the entire state (PDF) -- a ratio of one legal aid lawyer for every 4,752 legal problems faced by the low-income Illinoisans.

The recession has further battered the patchwork of law agencies and non-profits taking on these duties, which were underfunded to begin with. While Illinois' share of federal funding from LSC jumped (PDF) from $11.5 million to $12.7 million between 2008 and 2009, funding administered through the state-based Lawyers Trust Accounts plummeted from a record high of $12.5 million in FY 2009 to $8.5 million this year. The ongoing budget crisis in Springfield has left local advocates uncertain about what the future holds. "It's chaos," says Diana White of the Legal Assistance Foundation of Metropolitan Chicago, which lost one $900,000 grant this year to sign up people for social security disability benefits. "We have no idea what's going on." Legal aid agencies are also concerned that private law firm donations will decline in light of the economic downturn.

At the same time, demand is skyrocketing. Nationally, LSC reports that the number of people who qualify for assistance has grown by about 11 million in just two years. Back in Chicago, White says that the phone line at her organization's office at 35th and State Street is totally jammed by 10:30 am every morning."People call," she says, "and they just get the busy signal all day."

In the meantime, aid providers are trying to get the most out of the scraps thrown their way -- obtaining settlements when appropriate, working with community-based groups to target their outreach, and putting in endless hours. But until state and federal lawmakers build comprehensive civil legal assistance systems, the problems of indigent defense won't be solved.

Image used under a Creative Commons license by Flickr user Tidewater Muse.

IL-SEN: Giannoulias Challenges Candidates To Weigh In On Sotomayor

Josh Kalven — Thu, 16 Jul 2009 07:44:06 -0700

Yesterday, State Treasurer Alexi Giannoulias' U.S. Senate exploratory committee released the following statement, in which he voices his support for the confirmation of Supreme Court nominee Sonia Sotomayor and challenges his fellow candidates to make their position known:

"Voting on the confirmation of a Supreme Court Justice is one of the most important responsibilities of a United States Senator. The people of Illinois deserve to know how all potential U.S. Senate candidates would approach this crucial task.

“I commend President Obama on his outstanding choice and congratulate Judge Sotomayor for her thoughtful testimony this week.

"Sadly, the Right-Wing attack machine has used this most solemn constitutional responsibility to smear Judge Sotomayor. This hate-filled rhetoric is not only inappropriate and outrageous, but completely false and should have no place in the debate surrounding her selection.

“I urge all individuals, Democrat and Republican, who have expressed an interest in running for the U.S. Senate seat formerly held by President Obama to let Illinois voters know how they would carry out their responsibility on a confirmation vote for Judge Sotomayor."

This appears to be aimed at Republican Mark Kirk, who is scheduled to announce his candidacy Monday morning. Saying he opposes the nomination will please the GOP diehards and reassure party leaders in D.C. On the other hand, taking that position will further hurt him in the Latino community, whose political influence is growing rapidly in the state.

We'll see if he gets a question on the topic at Monday's presser.

Judge Orders State To Maintain Child Welfare Spending

Angela Caputo — Tue, 30 Jun 2009 14:23:51 -0700

As we reported earlier, it's anyone's guess how or when the General Assembly will solve the state's biggest budget crisis in decades. But during an emergency hearing last night, a federal judge agreed with the American Civil Liberties Union (ACLU) that the legislatures' political games have gone on long enough. Before the legislatures advances a budget that will require draconian cuts to the child welfare system, they ought to consider this: Without adequate counseling, reasonable caseloads, and other supportive services, the state will be in violation of a long-standing consent decree.

Attorneys with the ACLU just got the official order moments ago in which U.S. District Court Judge John Grady declares that the cuts outlined under the "50 percent budget" scenario are simply too deep. Grady's directive is addressed to the Department of Children and Family Services (DCFS), but it also serves as an important reminder to state officials that they must comply with the landmark ruling on B.H. v. McDonald -- the 1988 federal class-action lawsuit that found the state culpable for widespread abuse and neglect of children in its care. Just as Cook County Public Guardian Robert Harris argued in court last week, the ACLU emphasized that eliminating services (which haven't officially been taken off the table yet) will cause irreparable harm to the 16,000 Illinois children who are in the state's care. More from an ACLU release:

Judge Grady’s order mandates that the state comply with all provisions of the consent decree, including: maintaining all the programs and services that DCFS directs to fulfill the detailed requirements of the consent decree; prohibiting DCFS from increasing caseloads on caseworkers and investigators beyond the ratios set forth in the consent decree; continuing critical monitoring services by outside experts designed to insure the health and safety of children under DCFS care; and, maintaining critical, individualized clinical and social assessments for each child entering the DCFS system. Judge Grady also ordered that a copy of his judicial order be emailed to all placement and service providers affiliated with DCFS so that critical services and programs for children under the agency’s care are not disrupted.

That last point is particularly important, the ACLU's Ed Yonka tells us, because many termination notices have already been mailed out. Even if the cuts are less severe than have been projected, the state could still end up in violation of the decree because DCFS is already underfunded. Emergency counseling services, for instance, were reduced by 40 percent just this year. And the state's auditor general issued a grave report last week after finding that the agency is unable to properly investigate the deaths of children in its care due to low staffing levels.

No one has been more frank about the damage that would be associated with further cuts than DCFS' own director Erwin McEwen. From the witness stand, McEwen made the case for the court intervention yesterday. That wasn't a total surprise; prior to entering the courtroom, he issued a statement noting a funding reduction would bring the state "dangerously close" to violating the decree. The Trib rhas more:

McEwen released a statement Monday saying that since 2003, DCFS has sustained almost $200 million in budget cuts and any additional reductions would bring his agency "dangerously close" to violating this and other consent decrees.

"Given the proposed budget cuts, we acknowledge the impact on the safety ... and well-being of the children we serve," McEwen said. "We can only hope that the right thing will be done by funding these services today, as opposed to wasting valuable time and resources defending lawsuits."

If the General Assembly moves forward with a plan to cut roughly $4 billion, largely from human services, it's likely that the child welfare cases will touch off an avalanche of legal actions against the state, just as John Bouman warned.

Insulating Judges From Influence

Angela Caputo — Mon, 15 Jun 2009 17:11:13 -0700

Earlier this month the Supreme Court ruled that elected judges must recuse themselves from the bench when their own big donors' interests are at stake. With Illinois' judicial races raising record-setting amounts of campaign cash -- becoming a national example of a system is ripe for abuse -- the decision is already sending ripples through the state's legal community. Northwestern University law professor John McGinnis tells the St. Louis Post Dispatch that the ruling is likely to open "a Pandora's box," inspiring a flood of claims that judges in the Prairie State themselves should have opted for recusal.

The only way to avoid this avalanche of complaints, legal experts agree, is for the legislature or high court to step in and clarify exactly what is the threshold for impartiality. The Dispatch explains this "quandary":

While the high court made it clear that judges shouldn't hear cases involving big-time donors, it didn't establish an amount that should disqualify a judge. Is it $10,000? $100,000? $1 million. Also, will states need to pass new ethical guidelines to comply with the ruling, or will more drastic changes be needed, such as changing the entire system for choosing its judiciary?

This year Illinois lawmakers blew an historic opportunity to curb the influence of campaign cash in judicial elections, and that's left the Illinois Campaign for Political Reform's David Morrison with little confidence that the General Assembly is up for any sort of fundamental reform. "The Supreme Court is absolutely right that the judges look like they're being bought," he tells us, pointing out that many of the largest donations in judicial races have been funneled through party leaders.

With incumbents, along with committeemen, set to wield a great deal of political influence in the 2010 election cycle, ICPR says it's no wonder that substantive reforms -- including Sen. Kwame Raoul's proposal for publicly-financing certain judicial races -- were sidelined. There's a lot at stake next year with four seats on the Illinois Supreme Court potentially up for grabs (depending upon whether the justices run for retention or decide to retire), along with a host of statewide appelate court races.

Now Morrison is pinning his hopes on the Supreme Court stepping in to settle the underlying question: At what point do campaign contributions amount to influence peddling? At the state level, he says, "the only real solution is to insulate judges from this kind of financing."

The Supreme Court And Judicial Elections

Adam Doster — Mon, 08 Jun 2009 15:15:20 -0700

The Supreme Court understands that judicial campaign contributions can create conflicts of interest in the nation's legal system. Why can't Illinois lawmakers?

In a 5-4 ruling today, the high court ruled that elected judges must recuse themselves from cases when large campaign contributions from interested parties create the appearance of bias. The case originated in West Virginia, where coal giant Massey Energy Co. -- appealing a verdict in a dispute with a local coal company -- donated $3 million dollars to help elect State Supreme Court Justice Brent Benjamin to the bench. Benjamin just happened to preside over their case. Refusing to step down, he was part of a 3-2 decision to overturn the verdict in Massey's favor. "Just as no man is allowed to be a judge in his own cause," wrote Justice Anthony Kennedy for the majority opinion, "similar fears of bias can arise when -- without the consent of the other parties -- a man chooses the judge in his own cause."

As in West Virginia, Illinois judicial races have been hotly contested -- and expensive -- in recent years. As David Morrison of the Illinois Coalition for Political Reform (ICPR) reminds us, the most expensive state Supreme Court campaign in history was fought in Illinois' 5th Judicial District in 2004, when groups spent a combined $9.3 million. Two years later, the record was broken for an Illinois Appellate Court race as well, with $3.35 million flowing to the candidates.

Yet lawmakers have failed to take comprehensive steps to protect against potential abuse. This year, Sen. Kwame Raoul (D-Chicago) introduced SB 2144, which would have created a voluntary public financing system for Illinois Supreme Court and Appellate Court judicial elections. Although similar bills had passed the Senate in previous sessions, this version ended up lodged in the Executive Committee.

In the meantime, both chambers approved an amendment to the larger campaign finance bill creating a task force to study the merits of implementing a public financing system for judicial races. But that committee isn't scheduled to report back to the governor until 2012 -- well after the next round of elections, in which four of the seven Illinois Supreme Courts seats will be up for grabs.

That timeline is problematic, according to ICPR director Cindi Canary. "That is a branch of government under incredible threat from special interest contributions," she told us in March, "and I think that as we look to 2010, there’s a possibility of some real problems." Thanks to the Supreme Court, there is now a solid precedent protecting the rights of all people to a fair trial, regardless of a judge's political connections. Illinois lawmakers shouldn't kick the issue down the road another three years.

Image used under a Creative Commons license by Flickr user myoldpostcards.

Roskam Objects To Non-Controversial Sotomayor Remark

Adam Doster — Wed, 03 Jun 2009 09:24:47 -0700

Like a lot of conservatives, Don Wade is pretty nervous that Judge Sonia Sotomayor won't protect the interests of white Americans if she's ultimately confirmed for the Supreme Court. This morning on his WLS' Don Wade and Roma program, the co-host asked Rep. Peter Roskam whether Sotomayor was "going to use ethnic consideration in her rulings." Roskam leaped at the opportunity to send a dog whistle to his conservative base, claiming that the Appeals Court judge won't just call "balls and strikes" if appointed to the nation's highest court. Listen here:

Internal mp3

ROSKAM: It sure seems as if she’s going to do that. And I think that -- do you remember when Justice Roberts was before the Senate and there he is and all these senators are trying to manipulate him to give these answers and trying to provoke him? And he was cool as a cucumber. He was clearly the smartest guy in the room and I think he used that umpire analogy -- you all legislate and I will interpret this and apply it to facts. I think that’s what judges do. And I think there is a great deal of comfort that the American public has that when you go before a judge, they’re just going to call them as they see them. What we don’t need is, again, an agenda moving through the judiciary. It’s not helpful, it undermines the process. And I think Sotomayor sort of tipped her hand and had one of those YouTube moments of over disclosure at a speech or panel discussion where she said look, and I’m paraphrasing, but “this is what judges do -- judges make law.” Well, that’s not right. That’s not what we’re signing up for.

The remark to which Roskam refers came during a Duke University Law School panel in 2005. Sotomayor was asked to compare the experience of clerking for a district court as opposed to an appeals court. Here's her full answer:

"All of the legal defense funds out there, they're looking for people with Court of Appeals experience. Because it is – Court of Appeals is where policy is made. And I know, and I know, that this is on tape, and I should never say that. Because we don't 'make law,' I know. [laughter] Okay, I know. I know. I'm not promoting it, and I'm not advocating it. I'm, you know. [laughter] Having said that, the Court of Appeals is where, before the Supreme Court makes the final decision, the law is percolating. Its interpretation, its application. And Judge Lucero's right. I often explain to people, when you're on the district court, you're looking to do justice in the individual case, so you're looking much more to the facts of the case than you are to the application of the law. Because the application of the law is non-precedential, so the facts control. On the Court of Appeals, you are looking to how the law is developing, so that it will then be applied to a broad class of cases. So you are always thinking about the ramifications of this ruling on the next step in the development of the law."

Contrary to Roskam, legal experts agree that Sotomayor's quote is not controversial in the slightest.

Decisions at the district court level focus on very specific cases and disputes. The court of appeals, by contrast, creates precedent for all district court judges within that circuit. In fact, the only reason an appeals court exists is because when there is a gray area in the law that doesn't satisfy the litigants involved, judges have to interpret, in Sotomayor's words, "how law is developing so that it will then be applied to a broad class of cases."

Media Matters cites several legal scholars echoing her point:

Supreme Court historian David Garrow has reportedly said, "What [Sotomayor] said there is simply the honest version of what any judge knows and realizes," adding, "To anyone who knows the intellectual history of judicial decision-making, she's just being honest, not activist." Further, Stony Brook University political science professor Jeffrey Segal has reportedly stated, "Of course they make policy. ... You can, on one hand, say Congress makes the law and the court interprets it. But on the other hand the law is not always clear. And in clarifying those laws, the courts make policy."

According to Hofstra University law professor Eric Freedman, Sotomayor's remark is "thoroughly uncontroversial to anyone other than a determined demagogue." Apparently, Roskam has earned a new title.

On the broader point of "judicial activism," let's remember what it actually means to make law from the bench. If conservatives consider an activist judge to be one who strikes down Congressional statutes and federal regulations, they need to castigate their own. Last year, legal scholar Cass Sunstein and economist Thomas Miles looked at data about the frequency with which justices upheld federal regulations. The four liberal justices were the four most restrained. In addition, Yale Law Professor Paul Gewirtz and Yale grad Chad Golder recently reviewed 64 Supreme Court rulings from 1994-2005 in which the Court either struck down or upheld Congressional statutes. What were the results? You guessed it. The conservatives struck down far more laws than the liberals.

IL Supreme Court Refuses To Hear Madigan Motion (UPDATED)

Josh Kalven — Wed, 17 Dec 2008 11:58:19 -0800

Just out from the Tribune:

The Illinois Supreme Court has rejected Atty. Gen. Lisa Madigan's attempt to have Gov. Rod Blagojevich declared unfit to hold office, court officials said.

For more on Madigan's motion, check out this previous post.

UPDATE (3:18 PM): Read Madigan's response below:

I am disappointed in the Illinois Supreme Court's decision.

Because of Governor Blagojevich's refusal to resign, the State of Illinois is in an unsustainable situation. The serious criminal charges against Governor Blagojevich strike directly at the heart of his decision-making process and seriously impede his ability to legitimately exercise the powers of his office. Thus, while the U.S. Attorney's Office and the impeachment process move forward, the State is left with a Governor who cannot make effective decisions on critical and time-sensitive issues.

The Illinois Constitution expressly gives the Supreme Court the authority to determine whether the Governor has the ability to serve. Given this constitutional provision, on behalf of the People of the State of Illinois, I sought relief in the Illinois Supreme Court to temporarily remove Governor Blagojevich so that the State could continue to function while the U.S. Attorney and the General Assembly proceed. The Constitution does not require the Illinois Supreme Court to act.

I am hopeful that the General Assembly will act with deliberate speed. It is imperative that we begin to restore the People's confidence in their government.

Mikva: Madigan's Proposal A "Hold Fast" Effort

Josh Kalven — Fri, 12 Dec 2008 11:03:23 -0800

Attorney General Lisa Madigan's motion to the Illinois Supreme Court today seeks to temporarily transfer the governor's powers to the lieutenant governor, while anticipating that Blagojevich will either resign or the General Assembly will impeach him. Below is video from Madigan's press conference of Abner Mikva explaining how her proposal is a "hold fast effort" and how ultimate action by the legislature to remove Blagojevich would supercede the temporary restraining order she is seeking:

In recent days, many have suggested that this was an either/or scenario: either the Supreme Court would remove Blagojevich via Rule 382 or the General Assembly would do so through impeachment. But now it's clear that Madigan is attempting to create a staggered process, in which the Supreme Court temporarily voids Blagojevich's power, allowing state business to move forward and giving the legislature time to impeach.

Lisa Madigan Motions High Court To Remove Blagojevich

Progress Illinois — Fri, 12 Dec 2008 09:07:06 -0800

Just out from the Tribune:

Atty. Gen. Lisa Madigan filed a motion with the Illinois Supreme Court today aimed at removing Gov. Rod Blagojevich from office. [...]

Madigan will hold a news conference at 11:15 a.m at the state office complex in downtown Chicago.

Don't Forget About The Circuit Courts!

Adam Doster — Fri, 31 Oct 2008 08:53:22 -0700

Much has been made this election cycle about the future composition of the Supreme Court, and with good reason. If John McCain wins Tuesday, it's practically assured that he will appoint hardline conservative judges to the bench, pushing the court further rightward and likely endangering the reproductive rights of women, whose concerns he openly mocked in the final debate. But Alexander Wohl made a valid and often overlooked point at the American Prospect yesterday -- the next president will have a major opportunity to reshape the nation's legal landscape through appointments to the 13 federal appellate courts, as well.

Instructive here is research from Russell Wheeler of The Brookings Institution. According to Wheeler, it's likely that the 111th Congress will create 14 new circuit judges positions as recommended by the United States Judicial Conference. He also estimates that half the circuit judges who are now eligible or will become eligible for retirement by 2011 will exercise that right (even though they have lifetime appointments).

If that's the case, the partisan make-up of the Appeals courts will follow the SCOTUS pattern. Wheeler predicts President McCain would increase the total proportion of Republican appointees from 56 percent to 74 percent and reduce the proportion of Democratic appointees from 36 percent to 26 percent. All 13 courts of appeals would have Republican appointee majorities, as well, up from the current 10. President Obama would likely do just the opposite, reducing the proportion of Republican appointees from 56 percent to 42 percent and increasing the proportion of Democratic appointees to 58 percent. Courts with solid Democratic majorities would also jump from zero to four and those with slight Democratic appointee majorities would move from one to four.

As an example, let's take the Seventh District Court of Appeals (which roughly covers (PDF) Illinois, Indiana, and Wisconsin). Currently, the court boasts a 7-3 Republican advantage with one vacancy, which President Bush is trying to fill before he leaves office. Under a Democratic administration, Wheeler predicts the court will ultimately feature a slight Democratic advantage, thanks to the possible retirements of five judges appointed by Reagan and George H.W. Bush.

Why are these appointments so important? Wohl explains:

This is not to say that federal judges work from party talking points; most take seriously their independence, which is, after all, the reason behind their constitutionally mandated lifetime tenure. Nonetheless, the choice of a judge by a president is an inherently political undertaking, and different judicial philosophies of constitutional interpretation can lead to vastly different results in judicial decisions.

To put it plainly: Dem-appointed judges are more likely to issue progressive-friendly decisions, whether on environmental protection, employment discrimination, or reproductive rights. And because the federal appeals courts provide the final decision on more than 60,000 cases annually, Wohl describes these judicial bodies as the "court[s] of last resort." Just another reason to sweat it out next Tuesday.