Tracking the Importance of Recusals in Criminal Cases (Part 2)

Yesterday, we began our review of the Court’s experience with recusals in criminal cases.  Today, we conclude our review with a look at the most recent years.

First, let’s look at the importance of recusals in criminal cases for the years 2006 through 2011 – how often did recusals end up with the prevailing party having only four votes – the Constitutional minimum?  In 2006, the prevailing party had six votes in six criminal recusal cases.  Twice, the winner had five votes, and three times, four votes.  In 2007, recusals had little impact – all three times, the winner had six votes.  There were no recusals in criminal cases in 2008.  In 2009, the winning party had six votes in the only criminal recusal.  In 2010, the winning party had six votes three times, and four votes once.  Finally, in 2011, the prevailing party had six votes three times.

Recusals in criminal cases have been extremely rare in recent years.  In 2012, there was only one – Justice Thomas in one case.  In 2013, Justice Burke recused once and Justice Theis once.  There have been no recusals at all in criminal cases since 2013.

In 2012, the prevailing party in the single recusal case had six votes.  In 2013, the prevailing party had six votes in both criminal recusal cases.

Join us back here next Tuesday as we turn to a new topic – the Court’s experience with death penalty cases.

Image courtesy of Flickr by Esther Westerveld (no changes).

Tracking the Importance of Recusals in Criminal Cases (Part 1)

Last week, we tracked the Court’s experience, year by year, with recusals in civil cases.  Recusals are potentially a serious issue in Illinois Supreme Court practice, since there’s no provision for replacing recused Justices with pro tem Justices, and there must be four votes for the Court to decide the case.

This week, we turn our attention to the Court’s experience with recusals in criminal cases.  We would expect recusals to be at least a bit more uncommon in criminal than in civil cases, since one of the primary sources of recusal – a Justice having a financial or personal relationship with a party – is much less likely.  So what do the numbers look like?

In 2000, Justice Rathje recused in three criminal cases.  Justice Bilandic recused twice, and Justices McMorrow and Miller recused once apiece.  The following year, the new Justice Garman recused in thirteen criminal cases, and that’s it – no other Justices recused in criminal cases that year.  In 2002, new Justice Rarick recused in ten criminal cases.  Justice Thomas recused twice, and Justices Garman and Fitzgerald recused once apiece in criminal cases.  In 2003, once again Justice Rarick recused in ten criminal cases.  Justice Garman recused once.  In 2004, Justices Karmeier and Fitzgerald recused three times each in criminal cases.  Justices Freeman and Garman recused in two criminal cases apiece.  In 2005, Justice Bilandic recused in seven criminal cases.  Justice Freeman recused once.

In 2000, the prevailing party in criminal recusal cases received six votes once.  The prevailing party recused five votes twice, and the prevailing party received four votes – the minimum necessary for a decision – three times.  In 2001, recusals had less importance.  Seven times, the prevailing party had dix votes.  Five times, the winner had five votes, and once, the prevailing party had four votes.  In 2002, once again the prevailing party in criminal recusal cases had six votes seven times.  The prevailing party had five votes in four cases, and three times, the prevailing party had four votes.  In 2003, the prevailing party had six votes five times, five votes three times and four votes twice.  In 2004, recusal cases were more important, as the prevailing party had four votes four times.  Twice, the winning side had six cases and once, the winner had five votes.  In 2005, the prevailing party had six votes seven times, and four votes only once.

In Table 523, we report the recusals between 2006 and 2011.  In 2006, new Justice Burke recused in eight criminal cases.  Justice Karmeier recused three times, and Justices Garman and Kilbride recused once each.  In 2007, Justice Burke recused in three criminal cases, and there were no other recusals.  There were no recusals at all in criminal cases in 2008.  In 2009, there was only one – Justice Burke, once.  In 2010, Justices Burke, Kilbride, Karmeier and Fitzgerald recused in one criminal case each.  In 2011, new Justice Theis recused in three criminal cases, the only recusals of the year.

Join us back here tomorrow as we wrap up our brief excursion into the Court’s experience with recusals.

Image courtesy of Flickr by Roman Boed (no changes).

 

Tracking the Importance of Recusals in Civil Cases (Part 2)

Yesterday, we began reviewing the data regarding the Court’s experience with recusals in civil cases, and how often recusals lead to the Court being closely divided in its decision.  Today, we proceed to Part 2 of our analysis – the years 2006 through 2017.

In Table 518, we review the number of votes for the prevailing party in civil cases with at least one recusal between 2006 and 2011.  In 2006, nine civil recusal cases wound up with six votes for the winning party.  Six cases had five votes and five had four.  In 2007, once again, most recusal cases wound up with a clear winner – nine cases had six votes, five had five and three had four.  In 2008, things were a good bit closer.  Only four cases had six votes for the prevailing party.  Three had four votes, and two cases had five.  In 2009, five civil cases had six votes for the prevailing party.  Two had five votes, and two had four.  In 2010, three cases had six votes for the prevailing party.  Two had four and one had five.  Finally, in 2011, six civil cases had six votes for the prevailing party.  Three had five votes and none had four.

So we moved on to the years 2012 through 2017.

In 2012, Justice Thomas recused himself in two civil cases.  Justices Freeman, Kilbride, Karmeier and Theis had one recusal apiece.  The following year, Justices Burke and Thomas recused twice each, while Justices Kilbride and Theis recused once each.  In 2014 and 2015, recusals were quite rare in civil cases.  In 2014, Justice Burke recused once and Justice Karmeier recused once.  In 2015, Justice Thomas recused twice – that was all.  In 2016, Justice Karmeier recused in two civil cases, and Justices Burke, Freeman, Kilbride and Thomas recused once each.  So far in 2017, Justice Kilbride has recused in one civil case.

Finally, we turn to votes for the prevailing party.  In 2012, two civil cases resulted in five votes for the prevailing party.  Two cases had four votes and one had six.  In 2013, two cases each had six and five votes.  One had four.  In 2014, one case had five votes for the prevailing party.  In 2015, two cases had four votes.  In 2016, two cases each had six and five votes for the prevailing party.  In 2017, the one recusal resulted in six votes for the prevailing party.

Join us back here next Tuesday as we turn our attention to the Court’s experience with recusals in criminal cases.

Image courtesy of Flickr by Sergey Gabdurakhmanov (no changes).

 

Tracking the Importance of Recusals in Civil Cases (Part 1)

Last week, we reviewed the Court’s experience with certified questions from the Seventh Circuit.  This week, we begin our look at a different question: the Court’s history with recusals.

Recusals are particularly important on the Illinois Supreme Court because unlike the other Court we follow, the California Supreme Court, there is no provision for replacing Justices who recuse.  Moreover, pursuant to Article VI, Section 3 of the state constitution, the Court can’t decide an issue without the affirmative votes of at least four Justices, so the more Justices who recuse, the more likely it becomes that the Court will be unable to make a decision at all – so recusals can be a high stakes matter in Illinois.  Justices recuse for any number of reasons: a financial or personal interest in a party, or cases which came before the Appellate Court where the Justice served before joining the Supreme Court.  Ultimately, anything that could reasonably cause people to question a Justice’s impartiality is potentially grounds for recusal.

In 2000, Justice Rathje led the Court, recusing in three civil cases.  Justices Miller, Freeman, Harrison and Bilandic recused in one case each.  In 2001, Justice Garman led, recusing in five civil cases.  Justice Thomas recused three times, and Justices McMorrow, Freeman and Harrison recused once each.  In 2002, Justice Rarick – new to the Court, and therefore with several pending cases from his old court – recused nine times.  Justice Garman recused in three cases, Justices McMorrow and Freeman recused in two cases each, and Justices Kilbride, Thomas, Harrison and Fitzgerald in one case apiece.  In 2003, Justice Rarick recused in fifteen civil cases.  Justices McMorrow and Thomas recused once each.  In 2004, Justices Garman and Kilbride recused once apiece, and Justices McMorrow, Freeman, Thomas and Fitzgerald recused once.  Finally, in 2005, new Justice Karmeier recused in six cases, Justice Thomas recused four times, and Justices Garman, Freeman and Kilbride recused once each.

In Table 516, we review the vote totals for the prevailing party – given the four-votes-to-a-decision constitutional requirement, an important measure of whether recusals make a difference in the result.  Generally, the answer is no.  In 2000, cases with at least one recusal got six votes four times.  Recusal cases got four votes twice and five votes once.  In 2001, ten recusal cases received six votes, and one got five votes.  In 2002, ten cases got six votes, five got five and two got four.  In 2003, thirteen cases got six votes in recusal cases.  Three got five votes and two got four.  In 2004, seven cases got six votes and one got four.  Finally, in 2005, eleven cases wound up with the prevailing party getting six votes.  Three got five votes and three got four.

And finally, we turn in Table 517 to the years 2006-2011.  In 2006, new Justice Burke recused in fourteen civil cases.  Justice Thomas recused seven times.  Justice Garman recused three times and Justices Freeman and Karmeier once each.  In 2007, Justice Burke led, recusing eight times.  Justice Thomas recused seven times.  Justices Freeman and Kilbride recused four times apiece, and Justices Karmeier and Fitzgerald recused one time each.  In 2008, Justice Burke recused in four civil cases.  Justice Thomas recused three times, Justices Kilbride and Fitzgerald twice each, and Justice Freeman once.  In 2009, Justices Burke and Freeman recused three times apiece.  Justice Thomas recused in two civil cases, and Justices Kilbride and Fitzgerald recused once each.  In 2010, Justice Thomas was the only member of the Court recusing in more than one civil case – he had two recusals.  Justices Burke, Garman, Freeman, Kilbride and Karmeier recused once apiece.  Finally, in 2011, new Justice Theis recused four times.  Justice Kilbride recused three times.  Justices Freeman, Thomas and Karmeier each recused once.

Join us back here tomorrow as continue our look at the Court’s history with recusals.

Image courtesy of Pixabay by MonicaVolpin (no changes).

Are Certified Question Appeals More Likely to Be Decided by a Divided Court?

Yesterday, we looked at the small number of certified appeals the Court has decided since the late 1990s.  Since 1997, the Court has heard only eight certified question appeals from the Seventh Circuit – nearly all of them originating in the District Court for the Northern District of Illinois.  Today, we look at a related question.  One would expect that cases which the Seventh Circuit certified to the Supreme Court would have consider disagreement.  So how evenly divided do certified question appeals tend to be?

The certified question appeals were not significantly more divided than the rest of the Court’s docket.  Three of eight cases certified to the Supreme Court resulted in unanimous decisions.  One had a single dissenter.  One quarter of the Court’s certified question caseload ended in two-dissenter decisions, and another quarter ended in 4-3 decisions.

Four of the Court’s eight certified question appeals involved government entities as parties – a bigger fraction than the Court’s overall caseload.  Two more involved questions of public law: one involving the question of whether the Personnel Code created an implied cause of action, and another that turned on the scope of the Illinois Commerce Commission’s jurisdiction.  The remaining two cases involved widely applicable questions of tort law: the scope of the economic loss rule and the applicable statute of limitations for property damage in strict liability actions.

Join us back here next Tuesday as we turn our attention to a new area of the Court’s decision making.

Image courtesy of Pixabay by tpsdave (no changes).

How Often Does the Illinois Supreme Court Hear Certified Questions from the Seventh Circuit?

Over the past couple of weeks over at the California Supreme Court Review, we’ve been analyzing the California Supreme Court’s experience with certified questions.  So today, we turn our attention to the same issue: how often does the Illinois Supreme Court decide certified questions?

The Court’s certified question docket is governed by Supreme Court Rule 20, which provides that the Court may accept certified questions from the United States Supreme Court or the Seventh Circuit (but from no other court).

The short answer is: not often.  The Court decided one certified case in 1997, one each in 2001, 2002, 2003, 2004, 2011 and 2012, and one in 2016.  Seven of the Court’s certified questions originated from the Northern District of Illinois, and one originated from the Central District.  Three of the court’s certified question cases arose from tort law, two arose from government and administrative law, and one each arose from tax and employment law.

In Table 513, we report the percentage of certified question appeals which the defense won in each subject area.  What the data shows is that the defense has fared quite well.  Defendants have won three quarters of the tort law cases, and the only plaintiff’s win was by an insurer which would have traditionally been the defendant.  Defendants won none of the government law cases, but all of the tax law and employment law cases.

Join us back here tomorrow as we continue our analysis of the Court’s certified question cases.

Image courtesy of Pixabay by Werner22brigitte (no changes).

What Could We Infer When Justice Theis Asked the First Question in Criminal Cases?

Yesterday, we reviewed Justice Theis’ question patterns in criminal cases between 2010 and 2016.  Today, we ask what it’s possible to infer when Justice Theis asked the first question in  criminal cases.

Justice Theis voted with the majority in 84 criminal affirmances and 102 criminal reversals.  She wrote the majority opinion in fourteen of those affirmances and fifteen of the reversals.  When voting in the majority of an affirmance, there was a 26.19% chance that Justice Theis would ask the first question of appellants, and a 17.86% chance that she would ask the first question of appellees.  When writing the majority opinion in an affirmance, Justice Theis asked the first question of appellants half the time, and of appellees in 28.57% of cases.  When not writing an opinion, there’s a 22.06% chance that Justice Theis will ask the first question of appellants, and a 16.18% chance that she’ll lead off against the appellees

When voting in the majority of a reversal, there was a 27.45% chance that Justice Theis would ask the first question of appellants, and a 16.67% chance that she’d lead off against the appellees.  When writing the majority opinion, there was a 26.67% chance that she would ask the first question of appellants, and a 20% chance that she would begin the questioning of appellees.  Justice Theis only voted with the majority in two criminal cases where she wrote a concurrence – she asked the first question of appellants in one case, but not of appellees in either case.  When Justice Theis wasn’t writing, there was a 27.06% chance that she would ask the first question of appellants, and a 16.47% chance that she would ask the first question of appellees.

Justice Theis didn’t ask the first question of either side in any case where she voted in the minority of a criminal matter, so that wraps up our review of Justice Theis’ oral argument data.

Join us back here next Tuesday as we begin another phase of our analysis.

Image courtesy of Pixabay by JudithScharnowski (no changes).

What Could We Infer From Justice Theis’ Question Patterns in Criminal Cases?

Last week, we reviewed the data from Justice Theis’ participation in oral arguments in civil cases since she joined the Court in 2010.  This week, we turn our attention to Justice Theis’ record in criminal oral arguments.

Justice Theis voted with the majority in 84 criminal affirmances and 102 criminal reversals.  She wrote the majority opinion in fourteen criminal affirmances.  She wrote concurrences in two affirmances, and voted with the majority while not writing in 68 affirmances.  Justice Theis wrote the majority opinion in fifteen criminal reversals, wrote two special concurrences, and didn’t write while voting with the majority in a reversal in 85 cases.

In criminal affirmances, Justice Theis tended to ask more questions of the losing party – 2.85 questions to appellants, 1.42 questions to appellees.  Writing the majority opinion had a significant impact.  When writing the majority, Justice Theis averaged 4.43 questions to appellants and 2.57 to appellees.  When writing the concurrence, Justice Theis averaged 4.5 questions to appellants and 3.0 to appellees.  When not writing in an affirmance, Justice Theis averaged 2.47 questions to appellants and 1.13 to appellees.

When voting with the majority in a reversal, Justice Theis averaged more questions to the appellants – 2.59 questions to appellants, 2.18 to appellees.  Writing the majority opinion had very little impact on Justice Theis’ patterns in reversals; she averaged 2.33 questions apiece to appellants and appellees.  In the small number of concurrences in criminal reversals, Justice Theis averaged 10.5 questions to appellants and 0.5 to appellees.  When not writing an opinion in reversals, Justice Theis averaged 2.39 questions to appellants and 2.19 to appellees.

When Justice Theis voted with the minority in criminal affirmances, she averaged more questions to the party she voted against than the party who lost.  She averaged 0.5 questions to appellants, four questions to appellees.  Justice Theis didn’t write any dissents in criminal affirmances.

When Justice Theis voted with the minority in criminal reversals, she averaged five questions to appellants and none to appellees.  Although she wrote one dissent from a criminal reversal, she asked no questions in that case.  When not writing an opinion in a criminal reversal, she averaged 10 questions to appellants and none to appellees.

Join us back here tomorrow as we wrap up our analysis of Justice Theis’ question patterns in oral arguments 2010-2016.

Image courtesy of Pixabay by TPSDave (no changes).

Post No. 999: What Could We Infer When Justice Theis Asked the First Question in Civil Cases?

Yesterday, we began our analysis of Justice Theis’ question patterns in civil cases.  Today, we continue our work on Justice Theis’ civil arguments since taking office in 2010.

When voting in the majority of an affirmance, there’s a 32.88% chance that Justice Theis will ask the first question of appellants, but only a 15.07% chance that she’ll lead off against the appellees.  Writing the majority opinion has a substantial effect – when voting in the majority of an affirmance, there’s a 72.73% chance that Justice Theis will ask the first question of appellants, and a 36.36% chance that she’ll ask the first question of appellees.  When not writing an opinion and voting in the majority of an affirmance, there’s a 25.81% chance that Justice Theis will ask the first question of appellants, and a 11.29% chance she’ll ask the first question of appellees.

When voting in the majority of a reversal, there’s a 24.76% chance that Justice Theis will ask the first question of appellants, but only a 6.67% chance she’ll lead off with the appellees.  Writing the majority opinion, once again, has a substantial effect – there’s a 52.38% chance Justice Theis will ask the first question of appellants and a 9.52% chance she’ll ask the first question of appellees when voting with the majority in a reversal.  When writing a concurrence, there’s a 50% chance that Justice Theis will ask the first question of appellants.  She hasn’t asked the first question of appellees in any case where she wrote the concurrence.  In reversals where Justice Theis voted with the majority, there was a 17.07% chance that she’ll ask the first question of appellants, and a 6.1% chance that she’ll ask the first question of appellees.

When voting in the minority of an affirmance, there’s a 40% chance that Justice Theis would ask the first question of appellees.  She didn’t ask the first question of appellants in any case.  When not writing an opinion, there was a 0% chance that Justice Theis would ask the first question of appellants, and a 66.67% chance that she would lead off against appellees.

When voting in the minority of a reversal, there’s a 25% chance that Justice Theis would lead off against appellants; she’s never asked the first question of appellees.  When writing a dissent, there’s a 50% chance that Justice Theis will lead off against appellants, but no chance that she’ll ask the first question of appellees.   Justice Theis didn’t ask the first question in either of the cases where she voted in the minority of a reversal.

Join us back here next week as we review Justice Theis’ record in oral arguments of criminal cases.

Image courtesy of Flickr by Adam Moss (no changes).

Post No. 998: What Could We Infer From Justice Theis’ Question Patters in Civil Cases?

For the past two weeks, we’ve been reviewing the patterns in Chief Justice Fitzgerald’s questioning in civil and criminal cases between 2008 and his retirement in 2010.  This week, we review the question patterns of his successor, Justice Mary Jane Theis.

Justice Theis voted with the majority in 73 civil affirmances and 105 civil reversals.  She wrote the majority opinion in 11 affirmances and 21 reversals.  She wrote no concurrences in civil affirmances, but wrote concurrences in two reversals.

Overall, Justice Theis has averaged 3.85 questions to appellants in affirmances (the losing party), and 1.19 questions to appellees.  When writing the majority opinion in affirmances, she averages 9.82 questions to appellants but only 1.55 to appellees.  When not writing an opinion, Justice Theis has averaged 2.79 to appellants in affirmances, and 1.13 questions to appellees.

Justice Theis has averaged slightly more questions to appellants in reversals as well – 2.16 questions to appellants, 1.81 to appellees.  Writing the majority opinion has a substantial impact, as Justice Theis has averaged 3.38 questions to appellants and 3.14 to appellees.  When writing a concurrence, Justice Theis has averaged four questions to appellants and five to appellees.  When not writing an opinion in a reversal, Justice Theis has averaged 1.8 questions to appellants and 1.39 to appellees.

When voting in the minority of an affirmance, Justice Theis averages more questions to the party she is voting against than to the party who actually loses the case – 0.4 questions to appellants, 2.6 questions to appellees.  Justice Theis has asked no questions in the two cases where she voted in the minority of an affirmance and wrote a dissent.  When not writing and voting in the minority of an affirmance, Justice Theis has averaged 0.67 questions to appellants, 4.33 to appellees.

When voting in the minority of a reversal, once again, Justice Theis averages more question to the party she votes against – 3.75 to appellants, 1.75 to appellees.  When writing a dissent from a reversal, she averages 7.5 questions to appellants and 2 to appellees.  When not writing an opinion, Justice Theis has asked no questions of appellants, and 1.5 questions to appellees.

Join us back here tomorrow as we continue our analysis of Justice Theis’ patterns in civil cases.

Image courtesy of Flickr by David Wilson (no changes).

LexBlog