J. Timothy Eaton
J. Timothy Eaton
Kirk W. Dillard
Kirk W. Dillard

The types of recusals at the state’s top court that led to inaction this week on a significant red-light camera case are rare.

But they’re not unprecedented, and at least a few such cases have prompted calls for the court to prevent them from happening again via the appointment of interim judges.

The lone case the Illinois Supreme Court justices cited in their per curiam decision Thursday — which said that recusals by Justices Lloyd A. Karmeier and Anne M. Burke made it impossible to get the four votes required for a decision on the legality of red-light cameras in Illinois — contained a prescription for avoiding stalemate through appointment.

In that case, 1975’s Perlman v. First National Bank of Chicago, then-Chief Justice Robert C. Underwood had recused himself but took exception when the rest of the judges could not make a substantive ruling.

In a short dissent, he cited the high court’s broad appointment powers in Article IV Section 16, allowing the justices to assign a judge “to any court” as a possible lever to avoid gridlock.

He wrote that he would designate appellate judge replacements by having the high court “select now a list of seven appellate court members and list their names alphabetically, or in the order drawn by chance. Those judges would then be assigned to our court, as the need arose, in rotation.”

Underwood acknowledged that “there is no completely satisfactory means of resolving cases” where recusals lead to inaction, but “the method above outlined is, to me, more nearly so than” dismissing the case or sending it back to the appellate court.

A more thorough vetting of the appointment concept occurred nearly a quarter-century later, in 1999’s PHL Inc. v. Pullman Bank and Trust Co.

Two justices recused themselves, and the court couldn’t come to an agreement on whether to take up a petition for leave to appeal in the case.

The bank filed a motion asking the court to consider appointing replacement justices; four of the judges voted to reject the idea, saying that the number of justices on the Supreme Court is fixed at seven by the state constitution and there is “no provision that permits us to enlarge our own number, even on a temporary basis.”

But then-Justices James D. Heiple and Mary Ann McMorrow dissented, saying in part that having a temporary justice does not violate the constitution because it would still be the case that no more than seven justices weighed in on a particular issue.

To say that the state’s top justices couldn’t appoint a judge temporarily to their own court, they wrote, is an incorrect interpretation of the language that gives them the power to appoint “to any court.”

“In effect, my colleagues interpret this language to read ‘any court except the Supreme Court.’ Absolutely no legal principle, constitutional or otherwise, prevents this court from granting petitioners the relief they request,” Heiple wrote.

“Rather, assignment of temporary justices to this court is simply a matter of judicial policy entirely within this court’s discretion.”

Calls for an appointment process have also come from outsiders.

In 2009, then-Sen. Kirk W. Dillard sponsored a constitutional amendment that would have asked the high court to randomly draw from a pool of appellate court judges to help decide a case any time a regular Supreme Court justice opted for recusal.

The idea never gained traction in the legislature, but Dillard said today he wanted it to apply in any instance of recusal because, “I always believed that seven looks at the law are better than five or six.”

He added that Thursday’s no-decision highlights a continued need for such a policy.

“As yesterday’s red-light ruling showed, we run into this recusal issue with some regularity, and maybe more justices would recuse themselves if there was an easy mechanism to replace,” said Dillard, who is now chairman of the Regional Transportation Authority and a partner at Locke, Lord LLP.

J. Timothy Eaton, a partner at Taft, Stettinius & Hollister LLP and immediate past president of The Chicago Bar Association, pointed to the 7th U.S. Circuit Court of Appeals as an example of a place where temporary replacements are brought in with some frequency.

“If you look at the 7th Circuit, they have district court judges sitting up there all the time by designation for a variety of reasons … so the concept is not foreign,” said Eaton, who frequently argues cases before the high court.

Around the same time Dillard sponsored his change, Eaton authored an Illinois Bar Journal article that delved into instances in Illinois where recusals had lead to cases not being adjudicated.

In his piece, Eaton advocated for a more limited replacement approach — one that would kick in only when judges couldn’t get four votes in a case one way or the other — and allowed the high court to create its own rules on what type of judge it could select.

One such pool the court could choose from, Eaton suggested, was retired Supreme Court justices.

“I’m not sure why this system wouldn’t work,” he said today. “And certainly in Illinois, there are a number of retired Supreme Court justices who know what they’re doing and could easily fill in.”

Joseph R. Tybor, the high court’s spokesman, could not be reached for comment today.