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* Capitol News Illinois…
The Illinois Supreme Court ruled Thursday that elected public officials and their campaign committees may, in limited circumstances, use campaign funds to pay criminal defense attorney fees. […]
They partially rejected the committee’s argument that payment of criminal defense fees is always permissible solely because the General Assembly did not specifically include them in the list of prohibited expenses. But it also partially rejected Sigcho-Lopez’s argument that the legal fees were a prohibited “personal debt.”
Instead, they found that because the General Assembly had not specifically prohibited the payment of criminal defense attorney fees from campaign funds, it is reasonable for the Board of Elections to rule on a case-by-case basis.
* Let’s go back to the decision…
Allowing campaign monies to subsidize public corruption amounts to an unreasonable interpretation of the Election Code.
Pretty clear. But…
On the other hand… (w)e cannot ignore that not all allegations by political rivals are sound and that baseless allegations are at times asserted against public officials because of their very capacity as public officials. See Williams v. Graves County, No. 5:21-CV-21-TBR, 2021 WL 2828517 (W.D. Ky. July 6, 2021) (plaintiff’s civil Racketeer Influenced and Corrupt Organizations Act (RICO) (18 U.S.C. § 1962 (2018)) allegations were conclusory and unsupported by specific plausible factual allegations supporting a claim for any of the predicate offenses); Green v. William, No. 1:17-cv-266-PLR-SKL, 2017 WL 6892910 (E.D. Tenn. Dec. 15, 2017), report and recommendation adopted, No. 1:17-cv-00266, 2018 WL 387630 (E.D. Tenn. Jan. 11, 2018) (complaint’s rambling allegations mentioning, among other things, extortion and bribery by public officials failed to show entitlement to relief); Huffmaster v. Foster, 565 F. Supp. 2d 693, 698 (S.D. Miss. 2008) (allegations by politician that other members of his political party committed acts of mail fraud, wire fraud, and bank fraud were insufficient in that politician’s complaint did not specifically identify anything any of the defendants was alleged to have done to support the claims); Hawkins v. Schirack, 659 F. Supp. 1, 3 (N.D. Ohio 1986) (because routine check would have disclosed no basis in fact for public official’s suspected involvement in illegal contract allegations but would have disclosed that the amended complaint was filed for harassment purposes by political rival, public official was entitled to award of reasonable attorney fees).
In such a case, the payment of legal defense fees from campaign funds may be appropriately considered as a payment “in connection with the nomination for election, election, or retention of any person to or in public office” … Therefore, in limited circumstances, pursuant to the plain language of the campaign disclosure and regulation provisions of the Election Code, the Board may appropriately allow the use of campaign funds to pay for legal expenses in defending such allegations. […]
Until the General Assembly amends the statute to, for example, specifically prohibit payment from campaign funds for legal fees incurred in defense of criminal allegations against a public official or candidate, the issue requires the Board’s consideration on a case-by-case basis, applying the plain language of the applicable statutory provisions. In this case, despite the parties’ arguments regarding legal defense fees incurred as a result of public corruption allegations, the record here reveals that Solis had not been indicted on criminal charges but only that he had worked with federal investigators using his official capacity to expose public corruption.
Notice that all four cases cited above were civil cases, not criminal. Also note that the justices used the lack of a criminal indictment as reason to allow Solis to use his campaign money for attorneys.
What this may imply is that somebody who is indicted maybe can’t use campaign money for defense attorney fees, but they left it up to the State Board of Elections to decide things on a case by case basis.
The State Board of Elections is the same bunch of people who, as one elections attorney said today, “can’t handle deciding whether to issue a $50 or $500 fine, and you’re going to allow them to ask people to provide them with protected attorney-client information? It’s insane.”
posted by Rich Miller
Friday, Mar 25, 22 @ 10:39 am
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Possibly ignorant Question: Would this impact candidates ability to pay election lawyers through campaign account?
Comment by Paradox Friday, Mar 25, 22 @ 11:57 am
Did Michael Madigan have a hand in recommendations for State Board of Elections members? Some folks have been members of SBofE for many, many years.
Perhaps Madigan’s stacking the deck was prescient.
Comment by Rudy’s teeth Friday, Mar 25, 22 @ 12:14 pm
Mike Madigan rules The Cosmos.
Comment by Dotnonymous Friday, Mar 25, 22 @ 12:18 pm
When 3 out of 7 justices don’t participate it makes it a bit easier to get a ruling like this in terms of confusing and not completely thought out.
Also I wonder how many cases have had 3 (or more) justices not participate over the years.
Comment by OneMan Friday, Mar 25, 22 @ 12:27 pm
you only have to look to the Mautino case to see how useful the board of elections would be in a case like this. you’d essentially have an election lawyer trying to establish that a politico is likely guilty of a criminal offense to try to get the partisan members to say they can or can’t use political funds to defend the case? i highly doubt you’d ever see anything other than a 4/4 tie on partisan lines
Comment by annoning Friday, Mar 25, 22 @ 12:33 pm
==When 3 out of 7 justices don’t participate==
Be glad 4 didn’t recuse. The number was only 3 because any fewer and they couldn’t hear the damn thing. The conflicted and the less conflicted. Yikes.
Comment by A Guy Friday, Mar 25, 22 @ 12:38 pm
The State Board of Elections is explicitly designed to reach deadlock on any controversial issue.
The comment about not being able to decide between $50 or $500 is true, not necessarily because the Board is a collection of nincompoops (although there is some mental deadweight over there) but because absolutely everything ends up becoming controversial in that everything is ultimately political and partisan.
Thus, as previously observed, expect 4-4 ties.
But what is sort of interesting is what will be considered the status quo? Can an entity spend until the Board says no or can they spend only after the Board says yes? The fact that the Board is designed to, and will in these cases, deadlock means that the initial conditions will perdure. They will of course never say yes, but they will also never say no. So if the default is you can spend until they say no then no one looking to spend has anything to worry about.
Comment by DougChicago Friday, Mar 25, 22 @ 12:47 pm
=When 3 out of 7 justices don’t participate it makes it a bit easier=
Uh, no. Only one justice writes the opinion, whether the vote is 4-0, 4-3, 5-2, 6-1, or whatever. No one wrote a concurring opinion, which agrees with the decision but for different reasons.
Comment by Steve Rogers Friday, Mar 25, 22 @ 1:22 pm