Top court stayed united in 2015

SPRINGFIELD — While legislators and the governor fought vigorously in 2015, Illinois’ third branch of government did things a bit differently.

More than three out of four high court opinions this year were made unanimously by all seven justices.

That’s higher than 2013 and 2014, when each of the justices signed on to a single majority opinion in 44 percent and 72 percent of cases, respectively, according to a Daily Law Bulletin analysis.

Kirk C. Jenkins, a partner at Sedgwick LLC who also keeps numbers on the high court, said appellate judges emphasize joint decision-making, and Illinois’ high court in particular has a knack for it compared to other states.

“I do think this is a very collegial court,” Jenkins said. “Having read every decision back to 2000, you have to go back a ways to find not just dissent, but the really vitriolic dissents. The kind of things you see on the U.S. Supreme Court simply never happen on the Illinois Supreme Court.”

Michael T. Reagan, a sole practitioner in Ottawa who has brought hundreds of cases to the court, said one reason there are more unanimous decisions is that many of the difficult questions in the tort law arena have been put to bed.

“Whether employers are included in joint and several liability calculations — those types of questions — they’ve all been answered, and we’ve had decades of those questions being highly contentious and closely fought,” Reagan said. “So I think that does lend itself to the possibility of courts making decisions which are unanimous.”

But even if the splits are fewer and further between, they can still be vigorous.

Justice Charles E. Freeman, for instance, this year cited the “regretful history” of a multibillion-dollar tobacco lawsuit in which he reiterated claims that the majority justices had grown “desensitized” to average citizens and were trying to “quickly and quietly close the book” on the suit 10 years ago.

The $10.1 billion verdict against tobacco giant Philip Morris was initially thrown out a decade ago before the case was resurrected. Justice Lloyd A. Karmeier was accused by trial lawyers in the case of taking donations from the company and then ruling in its favor.

This year, Karmeier and a majority of judges again voted to toss the claim, though they left the plaintiffs a possible route to continue their fight.

The court is not immune from the occasional partisan split. The four Democrats — Justices Freeman, Anne M. Burke, Mary Jane Theis and Thomas L. Kilbride — wrote separately in a decision from November that validated the constitutionality of violent juvenile registration.

While they agreed with the Republican judges — Justices Karmeier and Robert R. Thomas along with Chief Justice Rita B. Garman — that the law was constitutional, they called it “illogical” because it didn’t allow minors to ask for removal from the registry by the time they became adults.

But that was the only time this year the court was split strictly along party lines.

“I think that the party affiliations of this court are largely irrelevant,” Jenkins said. “If you gave it some thought, yeah, you could probably assign the justices to places on sort of an ideological spectrum. But I think it has little to do with party affiliation.”

Year in review

The high rate of unanimity has come during a year in which the court was arguably under a bigger microscope than usual.

Karmeier barely avoided becoming the first Illinois Supreme Court justice in history to lose a retention race; new Republican Gov. Bruce Rauner made headlines saying the court was part of a “corrupt system” for taking campaign donations from lawyers; and the court threw out a controversial pension-reform law.

That statute had taken years to evolve in the legislature and was strongly opposed by state employee unions throughout the process. It was projected to save billions of dollars over the next few decades. But the court spoke with one voice in deeming it illegal.

“Crisis is not an excuse to abandon the law. It is a summons to defend it,” Karmeier wrote in the unanimous, 27-page decision back in May, which said a fiscal emergency was not a good enough reason to overlook a constitutional clause that says pensions “shall not be diminished or impaired.”

“How we respond is the measure of our commitment to the principles of justice we are sworn to uphold.”

The court’s decision is widely-expected to be a big obstacle for similar changes made to two of the city of Chicago’s pension systems.

Lawyers for the city last month tried to convince the high court the changes were still legal but were interrupted about 16 times by justices who were skeptical of their position. Attorneys for the workers who challenged the law got only two questions.

In criminal cases, the court ruled minors who commit crimes do not “age out” of culpability when they become adults. The decision meant a 26-year-old man could go to trial for sexually assaulting his young cousin when he was between 14 and 15 years old — despite the court acknowledging the “perceived unfairness” in committing acts as a juvenile and being punished for them in the more severe adult system.

“Accordingly, the legislature is encouraged to re-evaluate (the law) in light of this court’s decision,” Kilbride wrote in that opinion, People v. David Fiveash, No. 117669.

The court also found in People v. Gaytan, No. 116223, that a police officer’s mistaken interpretation of a traffic law can still lead to a legal traffic stop. And in People v. Stapinski, No. 118278, it upheld the validity of a police agreement not to prosecute a defendant who helped them nab drug dealers.

“The Supreme Court said if the police make a promise to somebody, they have to follow through on it,” said David P. Bergschneider, deputy state appellate defender. “I think it’s at least important that it sets forth the rule that wasn’t there before.”

Just this month, the high court also limited litigants’ ability to swap judges. It ruled that while a state law allows parties to request new judges at least once in a case without having to give a reason, they may not be entitled to a substitution if a judge has already made substantive decisions in the case — even if the case has been re-filed. The decision came in Bowman v. Ottney, No. 119000.

Battles not fought

While Rauner and Democratic legislators have fought bitterly over a state budget since January, the high court chose to stay out of it in mid-July, weeks after the budget normally goes into effect.

Attorney General Lisa M. Madigan’s office had argued that, with the exception of funds for the judiciary, pension payments and others that were already locked up by court orders, the legislature shouldn’t be able to spend money without budget bills signed into law.

A pair of lower courts had already ruled against the attorney general’s office, saying state employees should continue to be paid in-full while the legal challenges played out further. The office asked the Supreme Court to step in and rule that the constitution’s appropriations clause prohibited payments that weren’t authorized by budget bills, federal law or by courts.

It declined that request without giving a reason for the decision.

The court also chose to stay out of a battle between a man and his ex-girlfriend over frozen pre-embryos. The couple created them to preserve the woman’s chances of having a biological child after she was treated for cancer, but the pair eventually split up and fought over custody of the embryos.

An appellate court ruled in the woman’s favor while the man sought to get recognition for a constitutional right against what he deemed “forced procreation.”

In a departure from top state courts in New York, Massachusetts, Iowa and others which have all weighed in on embryo custody cases, the justices declined arguments in the case, Jacob Szafranski v. Karla Dunston, in October.

Other Changes

Aside from its legal decisions, the court opened up in new ways when it twice partnered with a media service to broadcast pension-case oral arguments in real-time on the Internet. It also invited legislators and the governor to a special evening session of arguments in order to bolster relations between the three branches of government.

“We aren’t politicians, so we really don’t have much contact with them anywhere,” Theis said at the time. “I’m hoping that by coming here, they can get to know us and then, moving forward, we have a relationship based on respect.”

It was only a couple weeks later that Rauner said the high court was part of a “corrupt system,” though he ultimately back-tracked on that statement.

The high court lost its voice in October when longtime press secretary Joseph R. Tybor died of pancreatic cancer.

An attorney and former news reporter, Tybor began working as court spokesman in 1998 and played a major role in shaping the court’s push to allow news cameras in trial courtrooms.

“He really did a masterful job of researching other states and representing proposals to the Illinois Supreme Court,” Kilbride said earlier this year. “He was numero uno. He was the guy out in front.”