Failure to recuse in eyes of reasonable public

On April 18, 2023, The Dispatch ran a front-page story: “New justices won’t recuse themselves” (in a case challenging the state’s recently passed ban on assault weapons and high- capacity magazines).

The Justices involved are both Democrats: Mary Kay O’Brien and Elizabeth Rochford. (I have never met either).

The motion asking them to recuse themselves, or requiring that they be disqualified from hearing the case, alleges that during their 2022 campaigns for election to the Illinois Supreme Court, both newly elected justices received substantial “campaign donations” from Illinois Governor JB Pritzker and Speaker of the Illinois House Emanuel ‘Chris” Welch — both Democrats —both of whom are named in the suit as defendants (in their official capacities).

While they were candidates, both judges received:

$500,000 from the ‘J.B’ for Governor campaign; and
$500,000 from the Jay Robert Pritzker Revocable Trust;

In addition, Justice O’Brien received $350,000, and Justice Rockford received $150,000 from the Welch Campaign Committee.

(Both received endorsements from two prominent gun-control lobby groups: The Gun Violence Prevention PAC, and The Gifford PAC. Because of word limitations, this op ed won’t address the problems, if any, that such endorsements might pose).

So, why would anybody donate $1 million to get a judge elected. I can only think of two reasons:

1. The candidate will be a brilliant, hard-working, impartial, independent judge, brimming with integrity. 

 

2. The donors believe that the judge, once elected, will be grateful, loyal, and inclined to repay “the favors.”

For purposes of this op ed, I am assuming here that both judges are “brimming with integrity, etc.”

But what does it look like to the public when a judge hears a case when a defendant in the case — the governor of Illinois — has just given the judge $1,000,000?

Does it appear any better because JB Pritzker is being sued only as governor, and not personally?

Does judging a case, after taking a $1,000,000 donation from one of the parties, “promote public confidence in the independence, integrity, and impartiality of the judiciary?”

Judges are mandated to “avoid impropriety and the appearance of impropriety.

Even if the judge is “brimming with integrity, etc.,” doesn’t it look improper for that judge to sit on a case where a litigant contributed $1 million to secure the judge’s election?


The first and most important rule governing the conduct of judges is this:

“A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary and shall avoid impropriety and the appearance of impropriety.”

In Illinois, once a person becomes a judge, the rules are strict. A judge shall not accept any gifts, … benefits, favors, or other things of value, except as follows:

(1) Items with little intrinsic value, such as plaques, certificates, trophies, and greeting cards; ….
(10) Gifts, loans, bequests, benefits, favors, or other things of value, only if the donor is not … likely to come before the judge ….

Is a $1,000,000 campaign contribution of little intrinsic value?


But can a candidate for judicial office accept any gifts, … benefits, favors, or other things of value? No and yes.

No, because a judicial candidate shall not personally solicit or accept campaign contributions.

Additionally, the candidate shall prohibit employees … from doing on the candidate’s behalf what the candidate is prohibited from doing under the provisions of this rule.

Yes, because a judicial candidate subject to public election may establish a campaign committee.

“A judicial candidate subject to public election shall direct the campaign committee: (1) to solicit and accept campaign contributions only as permitted by law;

The comments to these rules are explanatory.

“Judicial candidates are prohibited from personally soliciting campaign contributions or personally accepting campaign contributions. … This rule recognizes that, in many jurisdictions, judicial candidates must raise campaign funds to support their candidacies and permits candidates … to establish campaign committees to solicit and accept reasonable financial contributions or in-kind contributions.

 

“During the campaign, the candidate and the campaign committee should be aware that a contribution may affect the independence, integrity, and impartiality of the judge and may create grounds for disqualification if the candidate is elected to office.”

Were I on the Judicial Inquiry Board — and I am not — I would read the preceding paragraph in conjunction with the first rule of Judicial Conduct (set out above).

“A judge must not take any campaign contribution that creates, in the eyes of reasonable members of the public, any “appearance of impropriety.”

And I would further read it to say that, 

”In any case coming before the judge, where one of the judge’s campaign contributors is a party, and where in the eyes of reasonable members of the public there would be an appearance of impropriety, to preserve the public trust in the impartiality of the judiciary, all doubts must be resolved in favor of recusal.”

Recusal here would leave the Supreme Court two short of its full seven judges. But the court has power to appoint two judges to fill those temporary vacancies.


There are plenty of judges — currently sitting or retired — who could be appointed to fill the two temporary vacancies to hear the case. Judges who would not carry with them the “appearance of impropriety.” This would promote public confidence.


By failing to recuse, Justices O’Brien and Rockford, put themselves and perhaps the entire Illinois Judiciary into a “no-win situation.” If they rule for the defendants, they will look like “the best judges money can buy” — even if their decision is impeccably correct. They cannot rule for the defendant without creating an “appearance of impropriety” or worse, a stench of corruption.

First Published in the Moline Dispatch and Rock Island Argus on April 30, 2023. 

Copyright 2023, John Donald O'Shea

Ideas should win or lose in “The marketplace of ideas.”

I have recently written and published two op eds questioning the wisdom of spending $400,000,000 to create high-speed rail service between Chicago and Moline (or Davenport or Iowa City).

My goal, as an opinion writer, is to take a position that forces my readers to think the issue through. I make every effort to take, what I believe to be, the sound position. I feel I have achieved my goal when my opinions provoke strong responses — expressing supporting and contrary opinions. As I have stated frequently, I believe the best ideas ultimately prevail in the “marketplace of ideas.” That is why I have no use for people and governments who would suppress opposition speech.

In response to my two Amtrak op eds, I have received two letters. The first utterly disagrees with me. The second, thanks me. I set both out in full below. You judge which one makes more sense — when you are being asked to expend 400 million taxpayer dollars. I have no recollection of ever having met or spoken to either man.

The first letter came in the form of a Letter to the Editor, from Tom Walsh of LeClaire:

“The Times recently printed former Judge O’Shea’s opinion that rather than expand Amtrak to Moline, his “best guess” is that Amtrak advocates should instead buy toy trains. That supercilious conclusion is followed by a litany of unanswered questions. Allow me.

“Cost of train vs. Airfare? Flying to Chicago coast $225 — $450. (Booking.com) vs. $16 — $26 for the Princeton — Chicago train, which extrapolates to $24 — $40 for Moline — Chicago.

“How many people would use Amtrak? A “best guess” is that people now squeezed into airplanes would gladly choose Amtrack comfort — and security — at one-tenth the cost.

“Additional travel costs getting to one’s ultimate destination, by taxi or Uber? Chicago has an excellent public transportation system for commuter and tourists alike, linked to O’Hare. By remarkable coincidence, many commuter trains operate from Union Station, just like Amtrak does. Who would have thought?

“Travelers headed to the Loop can walk. No need for Uber, your honor.

“Subsequently, O’Shea tried to justify his foregone conclusion with an article focused on Amtrak’s recent operating losses, which were magnified by COVID. He implies that Amtrak’s profitable Northeast Corridor is an anomaly. Instead, it is a model to be replicated — an efficient, environmentally superior system, unfettered by slow-moving freight trains.

"O’Shea questions whether Amtrak can recoup the $400,000,000 in track upgrades. Curiously, he omitted such analysis of another $1,200,000,000 infrastructure upgrade — the I-74 bridge.

“Thankfully, O’Shea merely fulminates here, no longer dispensing his foregone conclusions and double standards from the bench.”

The second comes from Ron Moore:

“I recently read your column titled “From Moline to Chicago: By Amtrak? Or by limousine?” and would like to share the service my company already offers.

“I own Burlington Trailways and we are a motorcoach company that is appropriately licensed, insured, and compliant with FMCSA regulations.

“I have owned the company since 1981 and currently run three motorcoaches from Davenport, Iowa, to Chicago, Illinois, every day. A passenger can take our motorcoach from Moline, Illinois, to Davenport, Iowa, to catch these schedules.

“Our motorcoaches are 45’ (long) vehicles with seating capacity for 54 passengers. Each motorcoach is also wheelchair lift equipped and can accommodate two wheelchairs onboard. There is a restroom onboard and plenty of storage underneath the cabin for luggage.

“Tickets for these schedules can be conveniently purchased from www.trailways.com or in-person at the Davenport or Moline depots.

“I am happy to answer any questions or provide more information if you desire. Thank you for bringing attention to transportation in the area!“

The essential question is how many people will “commute” on a daily basis between Chicago and Moline (or beyond) using Amtrak? 100? 200? 1,000? (It is the “commuters” who make the NE Corridor profitable).

It is suggested that since $1.2B was spent to build the new I-74 bridge, that spending a mere $400M on high-speed rail, is money well-spent. But more than 80,000 vehicles cross the I-74 bridge daily — 29.2 million yearly! Even were Amtrack to carry 1,000 per day, that’s 1/80th of what the bridge carries. So, which is the better bargain?

It is opined is that most “commuters” who now fly, will switch to Amtrak. How many “air commuters” are there?

It is easy to spend money when it isn’t yours — especially when the government spreads it around like manure. But if the $400M must be spent, is spending it on high-speed rail the best transportation option?

Can anybody point to a single Amtrak route outside the “NE Corridor” that has ever turned a profit? If not, then, in addition to the $400M “start-up costs,” expect additional substantial annual losses. Just look at any Amtrak P & L.

The new Amtrak cars look terrific. They should for $400M! But how much of a subsidy would it take to allow the extant limo or motor coach (bus) services operating between Chicago and Moline to up-grade their equipment? If it were to take $4M a year, they could operate for 100 years on $400M. And busses and limos run on roads and bridges that already exist. And if they ran at annual losses, they’d be out of business.

First Published in the Moline Dispatch and Rock Island Argus on April 23, 2023. 

Copyright 2023, John Donald O'Shea

Rock Island County Courthouse, R.I.P. (1895 — 2023)

As I write, the Rock Island County Courthouse, built in 1895, is being demolished. The building “died” at the age of 128 years. The cause of death was obsolescence, aggravated by the neglect of the county’s voters.

When I first came to Rock Island, in September of 1966, the courthouse was already a victim of voter neglect. A post card, in the collection of the Rock Island Preservation Society shows the courthouse with at least six beautiful domes and a copper roof. By the time I first set foot in Rock Island County, that copper roof and all six domes were long-gone. The spectacular main dome had been replaced by an ugly box covering the air conditioning unit.

But it is really not fair to blithely blame the voters. By the building’s 35th birthday, America was in the throes of the Great Depression. Most voters could barely support their own families; they didn’t have an extra dime for courthouse repairs and maintenance. And that Great Depression dragged on for a decade — and for many folks, until the end of World War II in 1945. Even after the war had ended, there were still people living on the Rock Island City Dump, feeding their families on the garbage discarded by others.

I can still remember my first full day in Rock Island County. Before my job interview with the then State’s Attorney Richard Stengel, I walked over to the federal courthouse to see if I might also interview with the U.S. Attorney. What I remember clearly from that morning, was how forbidding the Federal Courthouse seemed with all its office doors shut, and how friendly the Rock Island County Courthouse seemed with all its doors wide open.

After that interview and job offer, Dick Stengel took me on a tour of the courthouse. Over the years, I explored it myself when I had free time. When I explored the basement, it was like going down into a coal mine. By that time, the tunnel under 15th Street, from the old jail to the courthouse, originally constructed to allow the sheriff to safely convey prisoners to court, had been converted into a tunnel to accommodate the pipes that provided heat to the courthouse.

On the first floor was a large unattractive men’s room, a small unattractive sheriff’s office, and a very plain probate court and probate chambers. They had all the charm of an old bowling alley. There was also an ancient, tiny elevator.

The recorder of deeds office sat at the south end of the 2nd floor. An old, utterly unattractive county court occupied the north end. In the middle front, was the small, plain, cluttered clerk’s office.

The third floor had already been “remodeled.” The old two-story circuit courtroom, had been “remodeled” out of existence. It was replaced by a new courtroom with a jury box, a hearing room and three judges’ chambers in back. Above, a law library was created. None of the changes were in keeping with the design of the courthouse as originally constructed, or worthy, in the least, of historical preservation.

By the time I retired in 2000, the only portion of the building that bore any similarity to the original design, was the exterior brick work. In the interior, even the great double staircase had been halved — to allow for installation of a modern elevator. I can still recall our female court reporters complaining about the women’s facilities. Even the circuit clerk’s office, which when I arrived in 1966 had been so open and friendly, had been chopped up into a warren of cubicles.

Of course, like any building, the courthouse could have been restored to its original condition.

If that would have been a wise expenditure of money, a private investor would have bought the building and undertaken that restoration. The fact that the cost of restoration made the project unfeasible for a private investor, rather clearly demonstrates that it would have been a waste of taxpayer dollars.

I’m a guy that loves old buildings. While on the bench, while assigned to Mercer, Henry and Whiteside counties, I explored all the old courthouses. In Whiteside County, I walked across the boards laying atop the rafter above the old circuit courtroom, and upstairs explored the rooms where the judge and jurors slept over when the cases continued into the next day.

Of the four courthouses, I explored, during my years on the bench, only one — The Henry County Courthouse — was worth saving. To this day, it remains an architectural masterpiece and thing of beauty. The people of Henry County deserve high praise for their preservation of it.

First Published in the Moline Dispatch and Rock Island Argus on April 16, 2023. 

Copyright 2023, John Donald O'Shea

Plan to use high-potency marijuana? Buyer Beware!

On March 27, 2023, five members of the Moline City Council voted to approve Moline’s second marijuana dispensary. Two Aldermen, Mike Waldron and Scott Williams, voted “NO.” Waldron quoted as saying, “I don’t believe we need one; we certainly don’t need two!” Those who voted affirmatively, justified their votes saying, that they “appreciated the extra tax revenue.” (3% of revenues will go into the city’s general fund.)

While use and possession still remains illegal under federal law, as of September 2022, 37 states and the District of Columbia allow the medical use of marijuana; 19 states and the DC have legalized recreational use.

But whether the use of marijuana is legal or not in Moline, or whether Moline will receive extra tax dollars, really misses the point.

In a long article in the Frontiers of Psychiatry, dated Jan. 5, captured U.S. trends in the association of suicide ideation/behaviors with marijuana use among adolescents ages 12–17 and differences by gender and race/ethnicity, by Flores, Granados and Lê Cook, issues of far greater consequence are discussed.

Their paper is written against this background: “In the U.S. over the past decade, there has been a steady increase in marijuana use rates among adolescents, in part due to marijuana legalization laws. It is unknown whether these greater marijuana use rates are associated with rising rates of adolescent suicide ideation and behaviors (plan and attempt) or whether these associations differ by gender or race/ethnicity.”

The object of their study was “To determine whether marijuana use is associated with suicide ideation/behaviors among adolescents and if differences exist by gender and race/ethnicity.”

The discussion and conclusions of the paper strongly suggest great caution is in order.

“Using nationally representative data, our findings demonstrated that past-year marijuana use is a significant risk factor for suicide ideation/behavior among adolescents.

“This finding was consistent among males and females, as well as adolescents identifying as white, Black, Latinx, and NA/AN.

“We also found that rates of suicide ideation/behavior increased as the frequency (number of days) of marijuana use increased.

"While prior literature has found gender, race/ethnicity, and marijuana use to be independent factors associated with suicide ideation/behavior among adolescents, our study is one of the first to use a nationally representative sample of adolescents to examine associations between suicide ideation/behavior and marijuana use and how these associations differ by gender and race/ethnicity.

"Marijuana use, which we found to be associated with higher rates of suicide ideation/behavior, is influenced by a multitude of factors, including supply side factors such as availability, price and potency. Marijuana has become more widely available via recreational use legislation.

“Increased marijuana availability may result in adolescents initiating or increasing their recreational use.

"In an analysis of a national, annually administrated cross-sectional survey, “Cerda and (his) colleagues found marijuana prevalence rates among eighth and 10th graders in the state of Washington increased when comparing marijuana use rates before and after legalization.

“The state (Washington) saw an increase in the prevalence of habitual marijuana users and a decrease in the prevalence of non-users.

“With legalization, the stigma of marijuana use may dissipate and elevate the social acceptability, which can lower the perceived risks associated with marijuana use.

“As such, adolescents living in states with legalized recreational marijuana legislation for adults may initiate or increase their use without fully considering consequences (e.g., elevated risk of psychosis and impacts of brain development associated with adolescent marijuana use).

“The decreasing price of marijuana may also contribute to increasing use among adolescents and help to further explain our research findings.

“As markets, both legal and illegal, compete for customers, there has been a proliferation of potent marijuana products, which may have severe consequences for adolescents.

“The levels of 19-tetrahydrocannabinol (THC), the content that gives marijuana its euphoric effects, have significantly increased over the past several decades.

“THC is associated with acute increases in heart rate, various types of arrhythmias, coronary vasospasm, and acute myocardial infarction.

“As marijuana potency has increased, there may be a parallel escalation in mental health-related events. Work by Di Forti and (his) colleagues found daily adult (18–64) use of high potency marijuana, defined as THC 10% or greater, was associated with five-times the odds of having a psychotic disorder, relative to no use.

"Researchers determined that eliminating high potency marijuana would contribute to a 12% decrease in the number of first-episode psychosis cases. This is of critical importance as psychosis is a predictor of suicidal behavior.

“A systematic review and meta-analysis of 10 general population cohort studies found individuals with a psychotic experience had higher odds of suicidal ideation, plan, attempt, and suicidal death.

While not yet conclusive, the studies to date clearly suggest that daily adult use of high potency marijuana increases fivefold the chances of having a psychotic disorder, and that psychosis is a predictor of suicidal behavior.

First Published in the Moline Dispatch and Rock Island Argus on April 2, 2023. 

Copyright 2023, John Donald O'Shea

Applause and thanks to Mid-American Energy

After I voted Tuesday morning, I headed over to Hy-Vee in Rock Island to mail a package. As I proceeded West on Rock Island’s 18th Avenue, it got very dark. Then suddenly I hit what felt like a wall of wind. I looked ahead and saw a large tree overhanging the Avenue and waving. Given the strength of the wind, I immediately pulled to the curb. I was afraid of getting under that tree and having the wind bring it down atop my car. When the west wind abated a bit, I scooted past the tree, and on to Hy-Vee. My efforts were in vain; Hy-Vee had lost power to run their mailing devices.

I headed home, wondering if the wind had done any damage. It had. A large maple tree on neighbor A’s property had fallen against the electrical pole on the same lot, with one big limb around the north side of the pole, and a second around the south side. In the process, the tree has taken down and snapped the electrical wire leading to neighbor B’s house. When I got home, I promptly learned that I was without power.

I immediately called Mid-American Energy to report the tree-attack on the pole and my outage. As I waited no more than 30 seconds on the phone to make my report, I thought to myself, “We are on an unimportant street; we may not get power back until tomorrow.” To my very pleasant surprise, a woman answered, who identified herself as “Susan” (if I remember).

I first reported the tree against the pole, and she asked a few intelligent questions, obviously to make sure she understood what I was telling her, and then before I could report my own outage, she inquired “Do you also have power?” She gathered the pertinent details.

Then, in mid-afternoon, as I took the dog out, I saw an emergency vehicle over by the tree and the pole. I walked over, and they advised me they had been sent out to determine exactly what equipment would be needed to restore power in the neighborhood. I was pleased that they were out “scouting” to ensure the necessary equipment would be dispatched. I was still guessing Mid-American Energy would deal with bigger problems first, and that we would probably be without power until the following day.

Since I was now living in 19th century America — an “America before electrification, — I went to bed early. At some point, around 9 o’clock, I notice flashing lights. Being curious, I got up, dressed, and went outside to see what was going on.

I again was pleasantly surprised to see a big bucket truck across the neighbor’s yard either working, or getting ready to work, to get the tree off the pole.

Because I had seen in the daylight how the tree was straddling the pole, I wondered how the tree removers would do the job. And I recalled that when I was about 3, a neighbor, who had been a lineman with the electric company, was electrocuted and killed, while working on a line.

Fascinated, I stood about 150 feet away, both out of personal danger, and out of the way of the workers, and watched. As I watched, it was clear that the man in the bucket [who a number of the times passed over the top of the pole], was proceeding deliberately and carefully to both get the tree off the pole and avoid doing any further damage to the pole or the wires. Rather than cutting off large sections of the limb, he proceeded almost surgically, using the appropriate saws — to deal with the smaller branches, as well as the larger ones. Then as the job neared completion, the power company’s linemen appeared to do the electrical work.

One of the Mid-American Energy men had earlier told me that the power had earlier been shut off, down the street. (I guessed to avoid the threat of somebody being injured by the down wire(s).) With the tree removers done, the linemen went back to the other end of the block and in their own bucket changed the fuse, or turned on the circuit breaker, or whatever, and suddenly we had light. My porch lights went on!

As I went in, and headed back to bed, I saw them return to restore power to neighbors A and B. Both had power.

To put it simply, I was impressed with the entirety of the service. The tree men told me that they had come from Des Moines, with five other trucks/crews.

I am assuming, Mid-American Energy did every bit as well in other affected neighborhoods. But at least in mine, they have my applause and my thanks.


First Published in the Moline Dispatch and Rock Island Argus on April 9, 2023.

Copyright 2023, John Donald O'Shea