If you were given an important matter to decide and asked if you could decide it fairly, you’re probably vain enough to say, of course. But suppose you were then told that your decision must not only be fair but appear fair. Would uncertainty set in? You might reply, That depends on who’s looking. Or possibly, If some people think I’m biased, I can’t help that. Or, Gimme a break! This is Illinois, where nothing appears fair.
A month ago such a matter was presented to the Illinois Supreme Court. A motion filed with the court asked it to hear an appeal of a malpractice suit against an exceptionally high-powered Chicago law firm. But at the same time, four of the seven justices were asked to disqualify themselves from even considering the motion for this reason: because of their personal, professional, and political connections to the law firm, their impartiality could not be assumed.
The four justices presumably thought about this. On Monday they all rejected the idea.
The case is Pinnick v. Corboy, and it’s become somewhat notorious. As James Merriner explained in a Reader cover story on December 4, a fatal accident on an Indiana Interstate back in 1995 led the family of the young Georgia woman who’d died, Melissa Pinnick, to hire the prominent Chicago law firm of Corboy & Demetrio to seek damages. The driver of Pinnick’s car, a rented Mitsubishi, said she’d heard a thump and suddenly lost all control of the car, whose electrical system shut down as it swerved across the median strip of I-65 near Crown Point and was broadsided by a Cadillac coming the other way. Corboy sued Mitsubishi, the manufacturer of the car’s tires, and the rental agency; but the law firm failed to take custody of the wrecked Mitsubishi and it disappeared — and with it any possibility of proving the car was to blame for the accident.
The Pinnicks then sued Corboy & Demetrio for malpractice. Merriner in his article and I in this blog have tried to describe what the family was now up against. To succeed, the Pinnicks essentially had to demonstrate that the car that Corboy & Demetrio let slip through their fingers was crucial to the liability suit — i.e., the Pinnicks would surely have won it if only that car had been available as evidence. But they had to demonstrate that without the car. And, of course, without Corboy & Demetrio, which was now using its legal know-how against them.
The family lost to the law firm in the trial and appellate courts. And last month, when the Pinnicks’ new attorney, Charles “Pat” Boyle, filed a motion asking the supreme court to hear the case, he coupled that to a fairly extraordinary request. He asked justices Thomas Fitzgerald, Charles Freeman, Robert Thomas, and Anne Burke to recuse themselves — “as all Justices have received campaign contributions well in excess of $10,000 from Defendants or Defendants’ counsel, experts and witnesses.”
The motion cited Rule 63 of the Illinois Supreme Court, which says, “A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned,” and identifies one such instance as a proceeding in which a judge, or the judge’s spouse, “has an economic interest in the subject matter in controversy or in a party to the proceeding.”
According to Boyle’s motion, Fitzgerald has received over $52,000 from Corboy & Demetrio partners, Freeman $5,000, Thomas over $16,000, and Burke and her husband, Alderman Edward Burke, over $25,500.
But Boyle argued that the appearance of impartiality was sullied by more than money. In addition to those “substantial financial contributions,” there were the “close and confidential relationships between Defendants and several Justices [and] Defendants’ frequent invitations to Justices to participate in social gatherings, home and office visits.”
In a footnote, Boyle pointed out that Philip Corboy Sr., the firm’s founding partner, “as special counsel to the Illinois Democratic Party, has for years hosted parties to which several members of the Illinois Supreme Court are frequent invitees.” (In another footnote, Boyle allowed that he’s made contributions of his own to several of the justices, but much more modest ones — “typically $500 or less.”)
Something about Boyle’s motion made me think of it as almost mischievous. The motion acknowledged that if all four justices did recuse themselves (for appearing partial to Corboy & Demetrio), only three justices would be left to decide whether to hear the Pinnicks’ appeal. That’s not enough for a quorum, meaning the appeal could not be heard. And if the supreme court didn’t hear it the appellate decision would stand and Corboy & Demetrio would triumph regardless.
The solution to this would be for the supreme court to appoint “temporary replacements” for the missing justices. But, as Boyle’s motion acknowledged, the supreme court had twice before held that it lacked the authority under the state constitution to appoint temporary replacements. So Boyle was not only asking the four justices to agree with him that they couldn’t appear fair; he was also asking the entire court to hold the state constitution in violation of the due process clause of the U.S. Constitution.
The court wasn’t interested. In its response Monday, each of the four justices responded in identical boilerplate: said justice “denies that portion of the motion requesting that he recuse himself from hearing any argument or rendering any decision in this matter including, but not limited to, a decision on the pending petition for leave to appeal.”
And that being the case, the court collectively dismissed the constitutional request as moot.
This outcome, of course, simply means that Boyle lost a round he couldn’t have had much hope of winning. The supreme court has yet to decide whether to hear the Pinnicks’ appeal. They may consider it so attentively and decide it so wisely that the impartiality of no justice can be doubted for a second. At least Boyle got their attention. He also got the media’s. In addition to our coverage, earlier this month the Sun-Times carried a story by Maury Possley discussing Boyle’s motion, and an editorial arguing that although in this instance the justices should not disqualify themselves the supreme court does need a mechanism for naming temps.
In the meantime, it’s been 13 years since Melissa Pinnick died in that crash. She left behind two small children who survived the accident, one who remains disabled while the other grew up needing periodic psychiatric care. They’ve been raised by their step-grandmother, who has no health insurance and has run through her savings. The family has never gotten a penny.
“These kids are getting screwed over,” says Boyle.