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* UPDATED x1 - Kasper won’t ask for Burke recusal * Question of the day

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Illinois

* Yeah, it’s late, but there’s a lot going on.

* The Question: Should Illinois Supreme Court Justice Anne Burke recuse herself from any appeal by Rahm Emanuel since her husband is (albeit unofficially) supporting Gery Chico for mayor? Explain.

*** UPDATE - 3:27 pm *** Emanuel attorney Mike Kasper just called to chat. Among other things, Kasper said he will definitely not ask Justice Burke to recuse herself.

posted by Rich Miller
Monday, Jan 24, 11 @ 2:15 pm

Comments

Yes. Her prominent husband is publicly supporting a candidate who stands to gain significantly if Rahm is off the ballot. That’s one potential conflict.

And if, as I suspect, Alderman Burke is helping to finance the objectors case, then she absolutely must recuse herself.

If she does not, she tarnishes the office. If she does, ironically, she might also be the reason the Court deadlocks 3-3, and might indirectly have the same effect as if she cast the 4th vote against Rahm.

Weird stuff. Only in Illinois.

Comment by 47th Ward Monday, Jan 24, 11 @ 2:19 pm
No. Just because a family member has a political opinion, it doesn’t make sense. Otherwise, Lisa Madigan would effectively have to resign her office as AG for the same reason (i.e. her dad has basically written the entire ILCS at this point).

Comment by John Bambenek Monday, Jan 24, 11 @ 2:20 pm
Yes. Not that I don’t agree with John B about relatives and political opinions, but if she is on the side that rules against Rahm, she loses all credibility. Even if she’s correct and it’s her opinion and not Ed’s.

Comment by Cheryl44 Monday, Jan 24, 11 @ 2:25 pm
Oh great. Now someone wants to see some kind of ethics in all this mayhem?

Burke should show as much concern regarding politically biased interpretations of the law as been seen by Mr. Emnuel.

It is a two way street people. Either follow the spirit and intentions of the law, or you do not.

Comment by VanillaMan Monday, Jan 24, 11 @ 2:25 pm
A sticky wicket to be sure.

If you want a wide distance from a conflict, them you recuse. I sure legal minds will hash this one out

Comment by Plutocrat03 Monday, Jan 24, 11 @ 2:26 pm
Of course, her husband is finished if Rahm wins. If she doesn’t recuse herself it’s corruption.

Comment by 'Dale to HPark Monday, Jan 24, 11 @ 2:28 pm
yes, she should. no, she won’t…

Comment by bored now Monday, Jan 24, 11 @ 2:28 pm
If there’s even an appearance of conflict, she should recuse herself. This case is far too high profile to do otherwise.

Her presence in deciding the outcome could undermine the public’s confidence in the judiciary.

If she remains on the court and she casts the deciding vote to remove Emmanuel, it would forever place a question of legitimacy over the ultimate winner in the Mayor’s race.

The Justice must recuse herself.

Comment by phocion Monday, Jan 24, 11 @ 2:29 pm
Presumably this isn’t the first time there has been a conflict of interest. I say keep her on. I am very curious to see how she rules.

Comment by SR Monday, Jan 24, 11 @ 2:30 pm
Yes, although there is no direct conflict of interest to force her recusal, there is enough of an appearance of a conflict to warrant her recusal.

Comment by WRMNpolitics Monday, Jan 24, 11 @ 2:31 pm
Should Illinois Supreme Court Justice Anne Burke recuse herself from any appeal by Rahm Emanuel since her husband is funding the case against Emanuel? That’s where there’s a conflict of interest, and where a recusal is warranted.

Comment by Boone Logan Square Monday, Jan 24, 11 @ 2:35 pm
“there is no direct conflict of interest” Huh? Ed Burke losing his position as head of the Finance Committee isn’t a conflict of interest?

Comment by 'Dale to HPark Monday, Jan 24, 11 @ 2:35 pm
No Way, did Rahm cough up Amy rule for the deposition? He made a mistake. I guess I was always right on this matter. I am happy. payback is something. You can address me objector 007. We win.

Comment by Patrick McDonough Monday, Jan 24, 11 @ 2:36 pm
Absolutely terrific.

What goes around comes around.

Comment by You Can't Stop What's Coming Monday, Jan 24, 11 @ 2:38 pm
P.S. Rahm is OFF the ballot like it or not! I am happy. Really happy. Super happy.

Comment by Patrick McDonough Monday, Jan 24, 11 @ 2:38 pm
Yes- Conflict of interest if she stays on

Comment by Statesman Monday, Jan 24, 11 @ 2:39 pm
Common sense says she should recuse herself. But I firmly think she will not.So long Rham, and welcome back to Chicago.Once again the voters lose.

Comment by mokenavince Monday, Jan 24, 11 @ 2:40 pm
Mr. Objector 007, how much was Odelson charging you? How much did you pay for his representation?

Comment by 47th Ward Monday, Jan 24, 11 @ 2:41 pm
What would Clarence Thomas do?

Comment by Jeff Smith Monday, Jan 24, 11 @ 2:42 pm
Are you kidding me…this is Chicago…of course not

Comment by Stinky Monday, Jan 24, 11 @ 2:43 pm
Help me understand a bit. Isn’t it a mute point whether she actually recuses herself or not unless she might vote in Rahm’s favor? As 47th said, won’t recusing herself essentially have the same effect as voting to support the appeals court verdict against Rahm? Also, if she were to recuse herself, would she still be able to hear and comment on the case; but not rule? How does that work?

Comment by Logic not emotion Monday, Jan 24, 11 @ 2:43 pm
Yes — because in this case, no vote at all is the same as a vote to uphold the majority. She can be “ethical” and still accomplish the same thing with her vote.

Comment by ILPundit Monday, Jan 24, 11 @ 2:43 pm
If she does not recuse herself, is that not grounds for appeal to SCOTUS?

Comment by Caveat Emptor Monday, Jan 24, 11 @ 2:43 pm
If she doesn’t recuse herself and is the deciding vote in a 4-3 decision against Rahm, expect him to go to Federal Court. It might have almost no chance, but he would probably claim that her participation in the case violated his Fifth and Fourteenth Amendment right to due process and equal protection under the law. At least I would raise the suggestion to him if I was representing him.

Comment by Draznnl Monday, Jan 24, 11 @ 2:44 pm
Exactly what is the conflict of interest?

That Ald. Burke is **allegedly** funding the opposition? (I don’t recall any evidence for that.)

That Rahm **might** remove Burke from the finance committee?

Should Lisa Madigan recuse herself on any matters regarding redistricting because a Republican ILGA **might** cut her budget?

Conflict of interest is a specific, defined and legal term. It involves alot more than allegations and conjecture.

If Burke has put money into the Anti-Rahm crowd, maybe. But I could also say we spike Kilbride each and every time the law comes up before him because Mike Madigan wrote it and incidentally he put in big cash to protect Kilbride last time. We very quickly get into absurd territory.

Comment by John Bambenek Monday, Jan 24, 11 @ 2:44 pm
Heh, if the IL Supreme Court opinion is appealed to the US Supreme Court, I’d expect them to issue a “Writ of We Give A Crap Why?”

Comment by John Bambenek Monday, Jan 24, 11 @ 2:46 pm
Were the two appellate judges slated by Committeeman Burke? If so, same question might be relevant.

Comment by Cal Skinner Monday, Jan 24, 11 @ 2:48 pm
If Judge Burke endorsed another candidate for Mayor, it would be a clear conflict of interest and she should recuse herself. (I don’t think she has or would)

If Ald. Burke formally endorsed another candidate for Mayor, I don’t think she needs to recuse herself. It is not her endorsement and for all we know she may disagree. She is an independent person and should not be treated as dependent on her husband for decision making.

If Ald. Burke has been funding the lawsuit to kick Rahm off the ballot, I think she should recuse herself. The reason is her husband then has a direct personal financial stake in the case before her. If nothing else it creates too much appearance of bias.

Comment by Objective Dem Monday, Jan 24, 11 @ 2:49 pm
No, she shouldn’t. No, she won’t. It’s not even a real issue or there would already be some rule against more than one family member being in a government and/or judicial role.

2011 already feels like we are wasting no time making sure the strange stories just keep on coming.

Pick out the non-factual “Onion”-style news headline:

1) Nearly-bankrupt state of Illinois passes totally goofy off-the-wall idea called “taxes” to actually pay for stuff.
2) Bears try to win fabulous expense-paid trip to the Super Bowl by playing only half of the NFC championship game.
3) Little-noticed panel of judges rules big-shot Chicago mayoral candidate off the ballot, “just to mess with people’s heads.”
4) Pundits ask Illinois Supreme Court justice to recuse herself from a future case, just because “she knows someone who knows someone who knows someone.”

Sorry, it’s a trick question.

Comment by Statewide Monday, Jan 24, 11 @ 2:50 pm
For the moment, there is a god. Kinda throw water on the whole, rules are for the little people attitude of the ballerina.

Comment by Dave Monday, Jan 24, 11 @ 2:53 pm
Statewide -

Easy, the answer is #2. The Bears only played the 4th quarter.

Comment by John Bambenek Monday, Jan 24, 11 @ 2:57 pm
Duh, of course, but something tells me she won’t…

Comment by Loop Lady Monday, Jan 24, 11 @ 3:00 pm
Ironically, if Burke recuses herself, it can only hurt Rahm, not help him. It’s simple math. In order to overturn the appellate court, Rahm needs a majority. A tie doesn’t help him. If Burke recuses, he still needs 4 votes. Burke only matters if the decision would be 4-3 with her. But if Burke were to vote against Rahm making it 4-3 against him, then it would be 3-3 without her, and he still loses. So would only matter if it were 4-3 in his favor, and she voted with him. In other words, she can only provide the deciding vote in his favor, she can’t provide the deciding vote against.

Comment by centrist Monday, Jan 24, 11 @ 3:00 pm
You know what Dave? The word is danseur. There’s nothing at all effeminate about danseurs. Think of them as ninjas w/ a different outfit.

Comment by Cheryl44 Monday, Jan 24, 11 @ 3:02 pm
Why can’t Richie take both of the Burkes along when he rides into the sunset? I think they have held sway long enough in the State and city of Chicago…aren’t they both 70ish? Thanks for your service but…

Comment by Loop Lady Monday, Jan 24, 11 @ 3:05 pm
touche’ Cheryl44

Comment by centrist Monday, Jan 24, 11 @ 3:06 pm
She probably can’t. That would be an admission that her husband is behind the whole thing and that she’s a puppet on a string. So no, she shouldn’t.

A couple of things are amusing here:

One, the contention by some that Emanuel has been trying to game the system as a big shot, and somehow Mr. GOP Joe Morris, the CBOE and the Cook County judge who made the original ruling in his favor (as well as, I guess, the dissenting appellate justice) are all in cahoots with the conspiracy.

The second is that somehow Mayor Emanuel would just roll Eddie Burke. That’s laughable. Burke has done more favors for — and has more dirt on — more alderman than anyone, and believe it or not, the city council will not genuflect to the next mayor, no matter who it is.

Burke also has $8 million in his warchest, and as Gov. Quinn and Dan Hynes will tell you, he’s willing to invest it, for you or against you.

Daley and Burke can’t stand each other, but Daley was too smart to waste time and political capital going to war with Burke.

Comment by wordslinger Monday, Jan 24, 11 @ 3:07 pm
It’s only a conflict if she rules in a way that benefits her interests. If she rules against them, then there is no conflict and she had no reason to recuse.

Wordslinger (as usual) is right. If she recuses, it, arguably, creates a greater appearance of a conflict of interest.

Comment by piling on Monday, Jan 24, 11 @ 3:12 pm
====If Ald. Burke has been funding the lawsuit to kick Rahm off the ballot, I think she should recuse herself. The reason is her husband then has a direct personal financial stake in the case before her. If nothing else it creates too much appearance of bias.====

I would be very surprised if Ed Burke put himself in a position where his involvement could be traced like that. Back in October when he was aksing questions relevant to the residency case, he wouldn’t even mention Rahm by name. It was Gery Chico who made the connection to Rahm by repeating the same questions, with the same “purge” wording, to Kass.

I also have to agree with those who have noted that recusing herself in this case would have negative connotations on her ability to be impartial in previous and future cases. Let her judge.

Comment by SR Monday, Jan 24, 11 @ 3:13 pm
Too many assumptions here (slightly off topic) that Republican judges would automatically slant anti-Rahm. Rahm is probably the most economically conservative, pro-business candidate in the mayoral. If I were a Republican, I’d favor him over the plausible contenders.

I’d love it if somebody had the relevant particulars to define conflict of interest. Withdrawing from a case that your husband has spent money on, seems intuitive. Otherwise, it is quite vague what just is the conflict, except -appearance- of a conflict of interest. Does the law require an actual documented conflict, or just just that a bunch of people out there think there might be? The latter might set a dangerous precedent. Just how far does the chain of reasoning have to run, before outside observers can in effect argue a judge off a case? Without veery clear lines, this could become a mess. I think right now a recusal is unwarranted, barring evidence of a direct financial investment by Burke.

Comment by ZC Monday, Jan 24, 11 @ 3:27 pm
I agree with ZC. IF the Republican judges allowed politics to affect their decisionmaking, and that’s a big IF, I’m sure they would prefer Rahm over Chico, CMB, etc.

Comment by Matt Monday, Jan 24, 11 @ 3:31 pm
Should she? Of course. It’s naive at best and disingenuous at worst for anyone to say that Ed is not neck-deep in the effort to keep Rahm off the ballot and/or defeat his campaign. No, it’s not her, but he has a vested interest and that’s a conflict for her.

Will she? If she recuses, she puts Ed in hot water by basically admitting that he’s involved with all of this, but she gets to look ‘ethical’ and it has the same effect as voting to uphold. If she doesn’t and sides with the Appellate ruling, she gets exposed as a political hack rather than a thoughtful jurist and as a bonus, potentially opens a route to SCOTUS. It is a pickle. Couldn’t happen to a nicer couple, if you ask me.

Of course she could not recuse and vote to overturn the Appellate Court. That could happen. And monkeys might fly out of my butt.

Comment by Thoughts... Monday, Jan 24, 11 @ 3:32 pm
Cal,
For what it’s worth, the two judges have been on the court for quite a while. I did look at results from their most recent retention to get a sense of political support, and found no real difference between the 14th Ward and everywhere else. Not that that’s the final word on whether Burke originally sponsored them, or continues to, but at any rate I found no evidence that his support was a major recent factor in their careers.

Comment by irv & ashland Monday, Jan 24, 11 @ 3:34 pm
According to the latest candidate financial disclosure reports, Alderman Ed Burke had not contributed to any candidate for the current mayoral election cycle nor had his campaign committees done so. I think that this was a deliberate choice made with respect to Justice Anne Burke serving on the State Supreme Court and the likelihood that the residency case might be appealed before that tribunal.

As such, I do not believe Justice Burke is obliged to recuse herself.

Comment by Honest Abe Monday, Jan 24, 11 @ 3:34 pm
–Kasper said he will definitely not ask Justice Burke to recuse herself. –

Now that’s a slick move. The heat will really be on her to rule for Emanuel.

Anyone ever seen the client list Ald. Burke discloses on his ethics form (yes, that is a funny phrase in context)? Many, many big hitters in the world of business.

Anyone know if she has a history of recusing herself in cases involving his clients?

Comment by wordslinger Monday, Jan 24, 11 @ 3:35 pm
Interesting update Rich. I guess Kasper is saying it’s entirely up to Justice Burke to determine whether or not to recuse herself.

That’s a nifty way to set a trap. Not sure it helps his client, but it really might put the Burkes in the old trick bag. Damned if you do, damned if you don’t.

Comment by 47th Ward Monday, Jan 24, 11 @ 3:35 pm
Time for the press to tell us in depth who exactly are Walter P. Maksym, Jr. and Thomas L. McMahon?

Comment by think about it Monday, Jan 24, 11 @ 3:36 pm
should she, maybe, because she only knows the true extent of her or her husbands conflicts. will she, yes, because she needs to stay holy enough to yell at the pope, and possibly because she thinks it will not matter if she recuses herself,…anyone else see the speaker weighing in on this behind the scenes?

Comment by caleb hanie Monday, Jan 24, 11 @ 3:38 pm
===
The second is that somehow Mayor Emanuel would just roll Eddie Burke. That’s laughable. Burke has done more favors for — and has more dirt on — more alderman than anyone, and believe it or not, the city council will not genuflect to the next mayor, no matter who it is.
===

That plus Burke’s $8.1 million is a compelling argument. The aldermen have been completely rolled by Daley for decades. This will be their first & best shot at grabbing some power in decades. There’s pent-up demand and they’ll at least make some kind of push for it in the first 3-9 months of a new administration. Ed Burke will position himself as the point man even if he loses his Finance Committee chairmanship.

On another note, if one were to get very conspiratorial and go far out on a limb, I could see the Burke’s cutting a deal with Rham. If the gig is up and Rham knows that Burke was against him and thus is gearing up to go to war with him, this is Burke’s chance to throw Chico under the bus and create a truce. Justice Anne Burke votes in Rham’s favor making him mayor. This would eliminate speculation that she had any bias toward’s her husband’s alleged candidate Chico. In exchange, Rham would agree not to retaliate against Burke’s initial support of Chico and then consent to him remaining as Finance Chairman, with the understanding that Burke would at least somewhat temper a full-bore attempted power-grab by the city council.

Comment by John Galt Monday, Jan 24, 11 @ 3:40 pm
Only if Alderman Burke is directly funding the lawsuit should Justice Burke step down. Anyway, this shows the great difficulty in having a relative of a powerful politician on the Illinois Supreme Court. But, having said all this: the law is the law. It’s hard to argue that Rahm Emanuel was a resident for the previous year. So, blaming Anne Burke or Alderman Burke will not wash. For some history on Chicago’s ultimate power couple click on the link down below.
http://nalert.blogspot.com/2008/03/chicago-democrats-and-chicago-mob.html

Comment by Steve Bartin Monday, Jan 24, 11 @ 3:52 pm
===Kasper said he will definitely not ask Justice Burke to recuse herself.===
Its a game of math. When you need to get up to four votes to win there is no upside to taking one of the votes out of the picture from the get-go. Even if Kasper thought the odds were 100-1 that Burke would vote in his clients favor there is still a chance she does. But there is zero chance if she recuse’s herself.

Comment by Been There Monday, Jan 24, 11 @ 4:00 pm
Kasper is right, why alienate the justice you want to decide in your favor? She will decide based on the law, not on outside political interests, even her husband’s.

Comment by Wensicia Monday, Jan 24, 11 @ 4:04 pm
Rahm should offer a deal. Ed Burke gets to keep his police body gaurds in exchange Justice Burke keeps rahm in the race.

Comment by Detail Monday, Jan 24, 11 @ 4:08 pm
What a shock! Kasper is a good little soldier…

But Emanuels war chest dwarfs Ed’s…what to do, what to do Mr. Kasper…cutting a deal with Burke sounds like the best strategy at this juncture…

Comment by Loop Lady Monday, Jan 24, 11 @ 4:20 pm
This Burke/Rahm deal…..so you’re all implying that Justice Burke is going to make a ruling as part of a deal? Call me naive but I don’t see that happening.

Comment by Because I say so Monday, Jan 24, 11 @ 4:20 pm
===cutting a deal with Burke ===

Sorry, but that’s just out of the question. You can’t cut a deal with the husband of a Supreme Court justice for her vote. You’d end up in the clink.

Comment by Rich Miller Monday, Jan 24, 11 @ 4:21 pm
===For some history on Chicago’s ultimate power couple click on the link down below.
http://nalert.blogspot.com/2008/03/chicago-democrats-and-chicago-mob.html
===

Cooley is and was a complete moron. His book is a combination of public information and complete fabrications. He was an awful lawyer and an average fixer, at best. I’m not saying everything in that article is crap, but Cooley is about as reliable as a flat tire.

Comment by Obamarama Monday, Jan 24, 11 @ 4:23 pm
@Think About,

Walter P. Maksym, Jr., is an attorney and Thomas L. McMahon is a police officer. Some of the people who are angriest about a double standard on residency laws are teachers, cops and firemen.

Their identities have been discussed before today.

Comment by Honest Abe Monday, Jan 24, 11 @ 4:28 pm
I have met Justice Burke several times and I have never heard her make any type of political statement. The Federal Judicial Code requires a judge to disqualify themselfs in any proceeding in which their impartiality might reasonably be questioned.

This is a decision Justice Burke has to make and Mr. Kasper was correct in not asking for Justice Burke to disqualify herself.

Comment by Rod Monday, Jan 24, 11 @ 4:31 pm
If anyone needs further proof that Rich runs the best political blog on the planet, I urge you to read the comments on this story over at Politico.

Good God, so many stoopid people, so little comment moderation.

Thanks again Rich, for building this site and making it so good. It really is hard to do, but it’s worth it.

Comment by 47th Ward Monday, Jan 24, 11 @ 4:31 pm
“A judge should disqualify…herself in a proceeding in which the judge’s impartiality might reasonably be questioned….”
“reasonably” means “to the average person on the street”
Is this discussion a “reasonable” stretch? W/o direct evidence, it is all pure speculation.

Comment by D.P. Gumby Monday, Jan 24, 11 @ 4:33 pm
===so little comment moderation. ===

I don’t think they moderate at all.

Comment by Rich Miller Monday, Jan 24, 11 @ 4:40 pm
Say what you want about Ed, but Justice Ann Burke is so far above letting common political considerations taint her legal opinions. She is an honest, forthright, intelligent judge and the SC is lucky to have her. If she does rule it will be based on the law. I hate to say I told you so but it has been clear for a long time that Rahm did not live in Chicago for a year before the election. The majority rendered the correct opinion. The muni law is simple, clear, unabiguous. Rahm does not qualify to be a candidate. Some of my faith in the system has been restored.

Comment by Bill Monday, Jan 24, 11 @ 4:45 pm
@Bill -

I’ve been saying it too.

And pointing out that if the candidate in question weren’t named “Rahm Emanuel”, we wouldn’t even be having this debate.

Which, of course, is why we have the Rule of Law instead of the Rule of What’s Popular.

Comment by Yellow Dog Democrat Monday, Jan 24, 11 @ 5:13 pm
Illinois Supreme Court Rule 63:

C. Disqualification.

(1) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where: . . .

(d) the judge knows that he or she, individually or as a fiduciary, or the judge’s spouse, parent or child wherever residing, or any other member of the judge’s family residing in the judge’s household, has an economic interest in the subject matter in controversy or in a party to the proceeding, or has any other more than de minimis interest that could be substantially affected by the proceeding; or

(e) the judge or the judge’s spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

(i) is a party to the proceeding, or an officer, director, or trustee of a party;

(ii) is acting as a lawyer in the proceeding;

(iii) is known by the judge to have a more than de minimis interest that could be substantially affected by the proceeding; or,

(iv) is to the judge’s knowledge likely to be a material witness in the proceeding.

(2) A judge shall keep informed about the judge’s personal and fiduciary economic interests, and make a reasonable effort to keep informed about the personal economic interests of the judge’s spouse and minor children residing in the judge’s household.

Comment by Anonymous Monday, Jan 24, 11 @ 8:42 pm