Capitol Fax.com - Your Illinois News Radar

Judge criticized for alleged conflict while some Republicans demand constitutional amendment

Posted in:

Illinois

* Cook County Circuit Court Judge Sophia Hall is presiding over the lawsuit that challenges the constitutionality of the state’s ban on gay marriage. Hall, it appears, is an “out” lesbian and some folks are calling on her to recuse herself from the case…

Hall is a charter member of the Alliance of Illinois Judges, which lists on its website that it promotes and encourages “respect and unbiased treatment for Lesbian, Gay, Bisexual and Transgender (LGBT) individuals as they relate to the judiciary, the legal profession and the administration of justice.” The Victory Fund, which supports openly gay elected officials, also lists Hall as an “out official.”

Professor Rena Lindevaldsen, associate dean at the Liberty University School of Law, said Hall represented a conflict of interest.

“Judge Hall is presiding over a case that seeks to fundamentally alter the meaning of marriage in Illinois,” Lindevaldsen said. “As a Charter Member of the Alliance of Illinois Judges, which is an organization dedicated to LGBT causes, she has an obvious conflict of interest. Pursuant to the Illinois Code of Judicial Conduct, a judge must disqualify herself in any case where her ‘impartiality might reasonably be questioned.’ (Rule 63-Cannon 3). If the tables were turned and she was a charter member of an organization that had as its mission to overturn Roe v. Wade and she was presiding over a case where the validity of Roe was in question, there would be incredible outcry to have her removed from the case. Given the significance of the case before her, Judge Hall should take steps to avoid even the perception of a conflict of interest, and recuse herself.”

Edwin C. Yohnka, director of communications and public policy at ACLU of Illinois, disagreed in an e-mail to On Top Magazine: “If the suggestion is that Judge Hall cannot, based on mere assertion, decide this case fairly and based upon the law, we simply disagree. Judge Hall has an excellent reputation as a careful jurist.”

* From the AIJ’s mission statement…

The Mission of the Alliance of Illinois Judges (AIJ) is to:

1. Promote and foster friendly relations and goodwill between and among its members and between its membership and other members of the bench and bar;

2. Advance the professional enrichment of the judiciary, promote the administration of justice and improve the legal profession;

3. Promote and encourage respect and unbiased treatment for Lesbian, Gay, Bisexual, and Transgender (LGBT) individuals as they relate to the judiciary, the legal profession and the administration of justice;

4. Defend and advance the integrity and independence of the judiciary;

5. Encourage, promote and provide continuing legal education to members of the bench, bar and public;

6. Foster and promote a positive public perception and a better understanding of the judiciary to LGBT individuals and to members of the public at large;

7. Promote equal and unbiased treatment of LGBT members of the judiciary on issues affecting judges, such as assignments, compensation, benefits, judicial elections, retentions and appointments; and,

8. Pursue any and all acts reasonably necessary in the furtherance of these goals.

* From the group’s home page…

We hope to be a resource for our fellow Judges and the legal community, and to be mentors for LGBT law students.

* Meanwhile, there’s a new call for a constitutional amendment in the wake of the lawsuit’s filing…

A Republican who represents a swath of southeastern Illinois is sponsoring legislation aimed at highlighting the state’s ban on same-sex marriage.

Even though Illinois approved a law banning same-sex marriage in 1986, state Rep. David Reis, R-Willow Hill, said his resolution will help counteract recent lawsuits that are challenging the prohibition.

“It is time for the General Assembly to reaffirm their support for Illinois laws reserving the institution of marriage between one man and one woman,” said Reis, who issued a statement.

* From Rep. Reis’ press release…

“This extremely controversial issue should not be decided in the courts. It should be decided by the people,” Rep. Reis said. “The only real way to solve this is by a vote on a constitutional amendment.”

Earlier this year, Attorney General Lisa Madigan stated her office would not defend the state’s marriage definition by law, saying her office will “present the court with arguments that explain why the challenged statutory provisions do not satisfy the guarantee of equality under the Illinois Constitution.”

In June, Rep. Reis sent a letter to Attorney General Lisa Madigan stating his strong opposition to her recent decision to not defend the state’s definition of marriage and has received no response from her office. “This is yet another example of Madigan using a possible decision of an activist court system over the wisdom and wishes of the citizens of Illinois,” Rep. Reis said.

To date no response has been received from the Attorney General’s office.

In absence of the Attorney General’s legal defense, two downstate county clerks, represented by the Thomas More Society, were granted the right to intervene against the two lawsuits and defend the state’s same-sex marriage ban.

Rep. Reis continued, “All concerned residents of the state who want Illinois to uphold its laws and safeguard the institution of marriage are encouraged to call their State Representative and Senator and ask them to support an amendment to the Illinois Constitution clearly defining marriage. If we don’t, this issue might very well get decided in the courts.”

* Republican state Reps. Thomas Morrison, David Reis, Paul Evans and Dwight Kay are co-sponsoring the measure. From their joint resolution’s synopsis…

Shows support for the Illinois laws reserving the institution of marriage to one man and one woman. States the General Assembly’s opposition to any efforts to extend the institution of marriage to 2 individuals of the same sex, whether by statute or by court decision. Urges the members of the General Assembly to adopt HJRCA 50, an amendment to the Illinois Constitution stating that “Only a marriage between a man and a woman shall be valid or recognized in Illinois”.

* From HJRCA 50, which is co-sponsored by Reps. Reis and Morrison…

SECTION 9. MARRIAGE

To secure and preserve the benefits of marriage for our society and for future generations of children, only a union of one man and one woman shall be valid or recognized as a marriage in this State. This State and its political subdivisions shall not create or recognize a legal status similar to that of marriage.

That last sentence appears to invalidate the state’s new civil unions law as well.

posted by Rich Miller
Wednesday, Jul 25, 12 @ 8:59 am

Comments

==Professor Rena Lindevaldsen, associate dean at the Liberty University School of Law, said Hall represented a conflict of interest.==

Oh yes, a professor from a school in Virginia decides to weigh in on the actions of an Illinois judge. I’m sure she knows the Illinois legal system really well and is not at all a partisan making criticisms based upon her preferred policy views.

Comment by chuddery Wednesday, Jul 25, 12 @ 9:06 am
If marriage equality threatens the institution, does that mean that any judge whose married should have to recuse themselves as well?

How about those who have only dated members of the opposite sex or same sex?

Perhaps we can find a closeted Republican judge to preside over the case to satisfy the esteemed scholars from the Liberty University School of Law.

(Irony note: Liberty University you will recall was founded by that famed defender of marriage, Jerry Falwell)

Comment by Yellow Dog Democrat Wednesday, Jul 25, 12 @ 9:11 am
I support gay marriage rights, and Hall would cause more harm than good if she does not recuse herself. The conflict is clear enough that she would create an opportunity for opponents to seize on it, both in future appeals and public opinion.

Comment by Anonymous Wednesday, Jul 25, 12 @ 9:11 am
I have no problem with with gay marriage. In this case, with all the controversy, the judge should recuse herself because of “the appearance” of a conflict of interest. In the same light, a jurist adamantly and openly opposed to gay marriage should also not rule on the case. She may be an excellent jurist and unqquestionably fair, the appearance still remains.

Comment by wizard Wednesday, Jul 25, 12 @ 9:11 am
Does a black judge have to recuse herself from an affirmative action case? A judge with a FOID card recuse from a firearms case? A Christian judge from a freedom of religion case? A judge who’s wife has a financial interest in a political issue that comes before him?

I look forward to hearing someone defend Lindevaldson here, it’s a slow day anyway and I need some entertainment.

Comment by Colossus Wednesday, Jul 25, 12 @ 9:19 am
Similar arguments were raised about Vaughn Walker, the US judge who ruled against the Prop 8/gay marriage ban case in California last year, who is gay. Those arguments were pretty handily struck down in subsequent legal proceedings. http://www.csmonitor.com/USA/Justice/2011/0614/Prop.-8-ruling-gay-judge-didn-t-need-to-recuse-himself

Comment by Phil Wednesday, Jul 25, 12 @ 9:19 am
I am with Yellow Dog on this….using the sexual orientation of an individual is the equivalent of saying a minority can’t render a decision regarding Affirmative Action, women can’t decide cases relating to gender bias, persons with known religious affiliations can’t render decisions relating to separation of church and state, etc. Come on folks get a grip and realize most professionals know how to separate personal view points from decision making.

Comment by illilnifan Wednesday, Jul 25, 12 @ 9:22 am
Only 3 lawmakers sign on to the resolution??? How embarrassing.

When IL conservatives show their weakness like this they do more harm than good.

This battle was over a long time ago. A few conservative groups are just going to milk it for fundraising as long as they can.

Comment by just sayin' Wednesday, Jul 25, 12 @ 9:24 am
– If the tables were turned and she was a charter member of an organization that had as its mission to overturn Roe v. Wade and she was presiding over a case where the validity of Roe was in question, there would be incredible outcry to have her removed from the case.–

That’s an absurd statement.

The national Republican Party platform calls for overturning Roe v Wade. The Federalist Society, of which Chief Justice Roberts and Justices Scalia and Alito are members, calls for overturning Roe v. Wade.

Is anyone suggesting self-identified GOP judges and those Supreme Court justices recuse themselves from abortion cases because of their memberships in those organizations?

If there ia, they’re just as rabidly partisan as LU.

Comment by wordslinger Wednesday, Jul 25, 12 @ 9:25 am
Please allow me my rights to form a union with someone I love. It may be male or female - but only one other person- that I love. I view this as standard which allows me protections and other rights not found in society as two people just living together. I’m not religious and I am not required in my USA to be religious and I should be protected from others’ religions. I only want something that is civil and void of religion. To protect ‘our’ lives and place in society. If the people of Illinois should pass some law or ban to keep me from forming some type of union with one other person that I love and care for - then I must demand other laws and bans out of respect for what is truly right and correct. NO DIVORCE. NO ADULTERY - send them to prison. There are so many other laws and bans which are on the minds and hearts of those who wish to form a less perfect union of these United States. This is only one issue of our times that is dividing this country in two. I’m beginning to no longer feel pride in America.

Comment by liberty and justice for all Wednesday, Jul 25, 12 @ 9:25 am
Asking judges to recuse themselves for personal reasons would open a can of worms none of us want to let loose.

Comment by Wensicia Wednesday, Jul 25, 12 @ 9:30 am
@ liberty: When I taught my four year old the Pledge of Allegiance, I broke it down into each phrase for her to repeat back to me. And each time, I would always say “and this is the most important part - ‘with liberty and justice FOR ALL.’”.

It’s easy to overlook that part. I think LU would do well to re-read the preamble to the Constitution (federal and Illinois) and really think about what the Pledge of Allegiance is saying.

Comment by Colossus Wednesday, Jul 25, 12 @ 9:32 am
As noted above, Judge Walker in California established the precedent on this. This argument is, in the words of that esteemed legal scholar Mayor Daley, “silly, silly, silly, silly.”

Comment by Anonymous Wednesday, Jul 25, 12 @ 9:35 am
I am a supporter of marriage rights and believe Judge Hall should recuse herself. She is a very nice person, though not as skilled as many of the other judges. This is an important case and it should go before another judge.

Comment by amalia Wednesday, Jul 25, 12 @ 9:39 am
“This extremely controversial issue should not be decided in the courts. It should be decided by the people.” - Reis.

Uh…isn’t that the reason, for instance, the Founders made the Supreme Court a lifetime appointment? So they would be less pursuaded by whatever the popular opinion happened to be at the time?

Come on conservadudes! I thought all you guys were constitutional experts?

Comment by Oh Gee, its the GOP! Wednesday, Jul 25, 12 @ 9:42 am
Amalia - I’m curious what leads you to say that Judge Hall is “not as skilled as many of the other judges.” Care to elaborate?

Comment by Colossus Wednesday, Jul 25, 12 @ 9:48 am
@amalia -

Have no fear. I don’t think anyone doubts that this is ultimately going to the Illinois Supreme Court, no matter what the trial judge decides.

The crux of the case is Constitutional.

Comment by Yellow Dog Democrat Wednesday, Jul 25, 12 @ 9:49 am
I’ve appeared before Judge Hall and always found her to be competent, fair and well prepared (more than I can say for a lot of Cook County judges). That said, it was never in a matter as potentially controversial as this one but I would expect the perception of a potential conflict here would be greater than the reality of one.

Comment by Ron Burgundy Wednesday, Jul 25, 12 @ 9:49 am
Also would women or blacks been given the right to vote if the people decided. What about Civil Rights or Brown v. The Board of Education. Sometimes we the people decide things based on narrow interests so it should not be left up to us as an electorate. The role of leadership and the legitimate role of government is to make these types of decisions.

Comment by illilnifan Wednesday, Jul 25, 12 @ 10:08 am
@Ron -

I would expect that the controversial nature of the case and media attention guarantee that whomever the judge is, the i’s will be dotted and the t’s crossed.

The Chief Judge assigned the case to her, right? If he’s confident, we all should be.

Comment by Yellow Dog Democrat Wednesday, Jul 25, 12 @ 10:09 am
If the “appearance” of a conflict mattered, then we wouldn’t have a state senator as chief sponsor of a rate-hike bill for a utility that employs his father as a lobbyist.

It takes a three-fifths vote in both houses to qualify a proposed constitutional amendment for the ballot. I doubt this proposal can attain that super-majority.

Comment by reformer Wednesday, Jul 25, 12 @ 10:12 am
Couldn’t the same objection as to bias be made by the other side if the judge was an openly straight and married Catholic?

By the logic of the conservatives objecting to Sophia Hall, the only judge who could hear this case would be a closeted or ambiguously straight/gay judge.

Comment by too obvious Wednesday, Jul 25, 12 @ 10:15 am
It amazes me that states are putting hate and bigotry into their Constitutions. Has anybody seen the “institution of marriage” crumble in any states that have legalized gay marriage? People don’t have to “support” the gay lifestyle but you certainly have no right to interfere with the way I live my life, especially when gay marriage has absolutely no impact on you whatsoever.

Comment by Demoralized Wednesday, Jul 25, 12 @ 10:17 am
YDD makes excellent point - on such an important constitutional issue, this is just the warm-up. Vaughan Williams’ initial ruling on gay marriage in CA was mutated by Judge Reinhardt, and I’m sure it may be mutated again by Justice Kennedy. It’s not worth exerting too much energy on these early steps.

Comment by ZC Wednesday, Jul 25, 12 @ 10:17 am
Vaughan Walker sorry - he was a judge not a composer

Comment by ZC Wednesday, Jul 25, 12 @ 10:18 am
SO this judge is BIASED because she belongs to a group that advocates “UNBIASED treatment for Lesbian, Gay, Bisexual, and Transgender (LGBT) individuals.” So the only way for her to prove that she is not biased is for her to explicitly advocate biased treatment against LGBT people?

Comment by Nicholas Reed Wednesday, Jul 25, 12 @ 10:20 am
@YDD. My understanding is the case would be randomly assigned via “the Wheel” to her when filed, a result of the Operation Greylord investigation back in the day.

Comment by Ron Burgundy Wednesday, Jul 25, 12 @ 10:29 am
“Given the significance of the case before her, Judge Hall should take steps to avoid even the perception of a conflict of interest, and recuse herself.”

This makes perfect sense and it is the reason why judges are forbidden from ruling on any matters of law or equity involving property if they own any property. #FAIL

– MrJM

Comment by MrJM Wednesday, Jul 25, 12 @ 10:50 am
I think that Lisa Madigan is mandated to defend Illinois Law when challenged in a court of law. She does not have to personally agree with the law, just as a openly gay judge may be able to be objective if this case comes up before him or her. The people of the state of Illinois elected her to be the Attorney General of Illinois. This does not mean she gets to pick and choose which laws she considers constituional, it means she defends those laws to the best of her ability until they are found to be unconstitutional by the Ilinois or U.S. Supreme Court. If she is an attorney she certainly understands the concept of defending laws or criminals in court - one must provide the best defense possible. If she cannot execute the duties of her office, resign and run for the governor’s office where a person can pick and choose which law they support or oppose.

Comment by johhnypizza Wednesday, Jul 25, 12 @ 10:58 am
Bias? Somehow I doubt that they would be complaining if Susan McDunn was assigned the matter.

That being said, I really wish judges would stop politicizing who they sleep with. I was not aware that Judge Hall had done so, but I know that others have. It should make no difference. Who you sleep with makes no difference to your legal abilities. Campaign on experience and independence. Tell us about the speeches you’ve given on complex issues. Tell us how as mediator you’ve helped hundreds of litigants reach agreements. But don’t tell me who’s waiting for you at home, because it just doesn’t matter.

Comment by Skeeter Wednesday, Jul 25, 12 @ 11:01 am
===I think that Lisa Madigan is mandated to defend Illinois Law when challenged in a court of law===

Nope.

She took an oath to uphold the Constitution.

Try to pay attention. We’ve been over this a half dozen times so far.

Comment by Rich Miller Wednesday, Jul 25, 12 @ 11:21 am
This suit is a nightmare, and needs a constitutional amendment either way not because of the issue (gay marriage) but because the ruling in Cook County would only be binding in Cook County since there is a law on the books passed overwhelmingly by the GA saying marriage is between one man and one woman.

Conservative counties may choose to continue to only recognize one man-one woman marriages. Now, if Cook allowed them, and some other county not recognize the marriage, would a divorce be possible if a couple moved from Cook to another county?

Comment by Cincinnatus Wednesday, Jul 25, 12 @ 12:55 pm
==Also would women or blacks been given the right to vote if the people decided.==

Well, yes, that is indeed what happened.

But, to the issue, claiming a judge should recuse herself because she has stated an opinion or is a member of an organization advancing a position on a particular topic is crazy. We all have opinions. All that standard will get you is judges who keep their opinions secret. That’s bad enough in the charade that nominees have had to put on before the Senate Judiciary Committee the last 30 years, but it’s even worse with an elected judiciary. How are we supposed to vote? Based on last names? If her “bias” leads her too far afield, why we have appeals courts and supreme courts with multiple-judge panels to keep things balanced.

Comment by Anonymice Wednesday, Jul 25, 12 @ 1:21 pm
If Judge Hall has a conflict, then so does every devout Irish Catholic judge in Cook County. I don’t know how folks of the Jewish, Muslim and other religions weigh in on the issue.
The litigants are trying to find a distinction where none really exists. If you look into someone’s religious beliefs, gender preferences, philosophical beliefs and party affiliations, I suspect some type of conflict issue could be conjured about anything. The judge lost on a stock deal? She should be recused from hearing a broker misconduct case.
Sometimes these factors should be considered, but more often than not, the impact is so attenuated as to be irrelevant.
Let’s save the conflict arguments for when one of our judges is asked to decide a public employee pension issue so broad it will undoubtedly impact judicial pensions. Now we a have a pecuniary conflict which is the grand-daddy of conflicts.

Comment by cook county commoner Wednesday, Jul 25, 12 @ 2:03 pm
@Ron Burgundy -

Thanks. Before my time.

Suggest we replace “The Wheel” with a Duck Pond.

Comment by Yellow Dog Democrat Wednesday, Jul 25, 12 @ 2:05 pm
@Anonymice -

As far as I can tell, the Alliance of Illinois Judges has no stated position on marriage equality or the interpretation of current Illinois law.

Nor, like the Latino Caucus, does it restrict its membership to LGBT judges.

Comment by Yellow Dog Democrat Wednesday, Jul 25, 12 @ 2:07 pm
Marriage would at least make these relationships legal commitments (and help to enrich the Divorce Lawyers interests)……

Comment by Downstate Surveyor Wednesday, Jul 25, 12 @ 2:25 pm
Are there no readers of this blog that favor keeping marriage between one man and one woman? (That is besides me?). Surprise, but people having this position may have gay friends and are not automatically bigots, etc. They may just favor preserving the classification of marriage.

Comment by JustaJoe Wednesday, Jul 25, 12 @ 3:18 pm
It’s a specious argument, and, in my opinion, harmful to the cause of people who hold that undermining one woman one man marriage cheapens everyone’s marriage much like making counterfeit money cheapens real money (it’s an argument I’ve heard multiple times and never bought). Because by arguing this way, it makes it clear then that a person in a conventional heterosexual marriage cannot rule on the case in an unbiased way either. I mean, if you believe that your marriage is going to be cheapened by letting these other folk on the boat. It just makes it clear that they don’t buy the argument themselves.

Comment by cermak_rd Wednesday, Jul 25, 12 @ 3:21 pm
I’d suggest the General Assembly would be better served by focusing on the state’s economic problems, culture of collusion and corruption and antiquated tax structure.

Comment by Roger Sanders Wednesday, Jul 25, 12 @ 3:35 pm
JustaJoe:

Your argument makes no sense if you phrase it that way. You don’t truly have gay friends if you don’t recognize their right to be a legal couple.

Comment by Demoralized Wednesday, Jul 25, 12 @ 3:41 pm
JustaJoe:

Also, what are you “preserving the classification of marriage” for? To what end?

Comment by Demoralized Wednesday, Jul 25, 12 @ 3:43 pm
@JustaJoe -

My advice is, Don’t marry JustaSteve.

Comment by Yellow Dog Democrat Wednesday, Jul 25, 12 @ 3:58 pm
@anonymice, how do you think women got the right to vote? the people is not the way. nationally, it was a vote of Congress, and then of the state Legislatures. in Illinois there was an actual referendum for local voting before the national quest and that referendum LOST. (ironically the neighborhoods that voted against the referendum in greater margins were immigrant and neighborhoods of color, men who voted from these groups who were more recent in voting status) but then the Illinois legislature passed a bill and women got the first right to vote here, but not for everything. the people voted against women.

Comment by amalia Wednesday, Jul 25, 12 @ 6:21 pm
To my question “Are there no readers of this blog that favor keeping marriage between one man and one woman?” the answer is apparently a resounding “No”.

I’d suggest then, that perhaps government should get out of the marriage business altogether. And those who wish to recognize one-man-one-woman bonds can find some different word of their own to re-define.

Comment by JustaJoe Wednesday, Jul 25, 12 @ 6:48 pm