Login | November 23, 2017

A way to use the experience of retired judges, but to avoid a new expense

DAVID P. STERBA
Law Bulletin columnist

Published: July 17, 2017

The dire and potentially ruinous financial condition of the state requires calculated and creative financial reforms. One such reform that could conceivably reduce costs associated with the judiciary, while concurrently elevating the quality of the bench, relates to the recall of judges to active service.

Recalling judges is an issue that has been rarely discussed and often overlooked. For most of Illinois’ history, no clear procedure existed for recalling experienced judges back into active service after their retirement.

In the earliest versions of our constitution, which were adopted in 1818 and 1848, the powers of the judiciary were left vague and largely unspecified. See generally Kopecky & Harris, “Understanding the Illinois Constitution,” 2-3 (2001 ed.). It was not until the passage of the Illinois Constitution of 1870 that the judiciary’s power and structure was fully set out, yet even then, the constitution did not contain any specific provision governing the retirement of judges, much less any clear authority for recalling them to service.

Over the next century, rising caseloads and the proliferation of specialized courts with overlapping jurisdictions created increasingly severe clogs in the judicial machinery. See Robert C. Underwood, “Illinois Judicial System,” 47 Notre Dame L. Rev. 247, 247-48 (1971).

These problems led to the adoption in 1962 of an entirely new Judicial Article, known as the “Blue Ballot amendment,” which came into effect in 1964. The new article completely reorganized the judicial system by not only eliminating independent local courts and streamlining the court system into its current vertically integrated, three-tiered structure, but also by vesting plenary administrative authority over the entire judiciary in the Supreme Court.

The Blue Ballot did not, however, address the issue of recalling judges.

A recall provision was finally added during the drafting of the Illinois Constitution of 1970. When Delegate Joseph Rachunas first presented to the floor the Judiciary Committee’s proposed draft of Section 15, he noted the “significant addition” of the recall provision and emphasized that “the committee should like to have it known that this consideration might and should be helpful in some of the areas of the state where the judicial personnel may be scarce and almost unobtainable.” Record of Proceedings, 6th Ill. Con. Convention, vol. 2, at 1089.

As later revised and adopted by the convention, the new recall clause provided, “Any retired Judge or Associate Judge, with his or her consent, may be assigned by the Supreme Court to judicial service.” See Ill. Const. 1970, art. VI, sec. 15(a).

This provision, while helpful, has its drawbacks. The ability to recall retired judges has since proved helpful in filling gaps in the judiciary when needed, but it comes with a significant financial cost: It mandates that a recalled judge “shall receive the applicable compensation in lieu of retirement benefits.”

In sum, if an Illinois judge is recalled by the Supreme Court, his resumed service must be full-time, his pension payments are suspended for the duration of his service and his salary is whatever a currently sitting judge receives.

These parameters severely curtail the court’s ability to entice and enlist the services of highly experienced and accomplished veteran judges, and also impose significant additional costs on our cash-strapped court system.

I suggest that enabling the court to be more flexible in recalling judges could yield cost savings while also enticing the best and brightest retired judges to answer the call for supplemental service.

Simply put, authorizing the court to recall judges on a per diem basis without a suspension of pension benefits could be a win-win for the state and its citizenry.

This approach is not new. Most states have recall procedures, though they vary widely in structure and application. North Dakota, for example, allows retired judges to be recalled as “surrogate judges.” See generally N.D.C.C. Section 27-17-03.

The system is similar to that found in Illinois with the notable exception of the compensation scheme. A recalled judge is entitled to compensation, but only for days or half-days “actually engaged in the performance of judicial duties,” and only in “an amount equal to 5 percent of the gross monthly salary” of a judge in active service.

The compensation is also capped, so that the per diem compensation and the judge’s retirement benefits combined cannot exceed the annual salary of an active judge. Other states such as Missouri employ a similar capping scheme. See e.g., M.R.S. Section 476.682.1 (recalled judge receives 50 percent of active judge’s salary, but combined compensation and pension cannot exceed annual salary of active judge).

The system used in Maine provides an interesting model for recalling senior judges. Maine vests recall authority of retired judges in the governor, who may appoint a retired judge for a renewable seven-year term. See generally 4 M.R.S. Section 157-B.

The newly appointed “active retired judge” serves in the district he retired in, but only hears cases as assigned by the chief judge. The judge may also, at the discretion of the chief judge, be assigned to hear matters in any other district, as the need arises.

The judge continues to receive retirement benefits but does not receive any salary. He or she is entitled to “reimbursement for expenses actually and reasonably incurred in the performance of that judge’s duties.” A modified version of the Maine system is perhaps most suited to upgrading Illinois’ courts.

Indeed, I favor the flexibility of Maine’s approach but recommend that our Supreme Court govern its application, rather than the executive branch. By granting the local chief judge of a circuit the ability to assign a recalled judge to only specific cases as needed, the judiciary will be able to quickly plug gaps as caseloads fluctuate.

More importantly, from a fiscal standpoint, the system would require minimal additional funding. The judge’s pension would continue in full effect, so unlike the current system it would be unnecessary to appropriate extra state funds for yet another judicial salary. Only the judge’s per diem expenses would need to be covered, and those would likely be minimal outside of the rare situation when a judge is assigned outside of his home jurisdiction.

Of course, revising our current recall system would require a constitutional amendment. My proposal, however, is only a modest tweak that has the potential to significantly relieve the congestion in our judicial dockets, encourage experienced retired judges to re-enter active service and avoid the cost of adding entire full-time judgeships to the system.

Perhaps most importantly, recalled senior judges could mentor their younger colleagues and thus upgrade the quality of justice that our system dispenses. Given the clear benefits and absence of drawbacks, this is a proposal to which our cash-strapped state should give serious consideration.

David P. Sterba is a retired Illinois appellate justice and a former presiding judge and trial judge. He is currently a partner at Walsh, Fewkes & Sterba in Palos Heights and an adjunct professor at The John Marshall Law School.

The dire and potentially ruinous financial condition of our state requires calculated and creative financial reforms. One such reform that could conceivably reduce costs associated with the judiciary, while concurrently elevating the quality of the bench, relates to the recall of judges to active service.

Recalling judges is an issue that has been rarely discussed and often overlooked. For most of Illinois’ history, no clear procedure existed for recalling experienced judges back into active service after their retirement.

In the earliest versions of our constitution, which were adopted


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