The Illinois Supreme Court will begin its January term Tuesday with a first-ever female majority after the court welcomed four new justices last year.
Justices Mary O’Brien and Elizabeth Rochford were sworn in last month following narrow victories in the November elections. The court appointed Lisa Holder White in July to fill one vacancy and appointed Joy Cunningham in November to fill the seat of a second retiring justice. Cunningham was also sworn in in December.
The addition of White—the first Black woman to serve on the state’s highest court—along with the three other new justices creates the first 5-2 female majority on the court since Illinois became a state in 1818.
“It’s a really exciting moment for the judiciary and the bar,” said Catherine Basque Weiler, a Chicago-based partner at Swanson Martin & Bell LLP who leads her firm’s appellate practice group.
The new bench will begin their term on Tuesday hearing a dispute over the state’s obligation to provide a defendant with a lawyer. On Thursday, it will hear oral arguments in a case contemplating whether a defendant who pleaded guilty to a crime he didn’t commit is eligible for a certificate of innocence—which could allow the defendant to sue the state.
Illinois is the only state where justices appoint a lawyer to the state’s Supreme Court when midterm vacancies occur and one of only eight states that elect its Supreme Court justices in partisan elections. The state’s appellate judges are elected to 10-year terms and then face retention votes every 10 years hence, in which they need to capture at least 60% of the vote to remain on the bench.
O’Brien (D) defeated Michael Burke (R) on Nov. 8 by about 11,000 votes, fewer than 2 percentage points. Rochford (D) defeated Mark Curran (R) by attracting about 55% of the votes. Justice Mary Jane Theis won her retention vote with 78.3% of ballots cast.
No Grandstander
A graduate of the University of Illinois College of Law, O’Brien served in the Grundy County, Ill., state attorney’s office before entering private practice. During her six years as a member of the Illinois House of Representatives, she chaired its Judiciary Criminal Law Committee.
She was appointed to the state’s appellate court in 2003, won election to that bench in 2004, and won her retention vote in 2014.
“She’s a very straightforward presence on the bench, in my experience,” Weiler said in an interview. She expects a “calm” O’Brien to ask specific questions of counsel during oral arguments and be well prepared. “She is not trying to trip up the attorneys. She’s not grandstanding,” said Weiler, who has argued before O’Brien.
A review of O’Brien’s appellate opinions shows she has both upheld and reversed circuit court determinations.
She reversed and remanded a circuit court order in a burglary case by concluding both plea counsel and the court failed to inform the defendant of the immigration consequences of his guilty pleas (Illinois v. Zeynali).
She joined a decision holding a circuit court erred when it granted defendants’ motions to dismiss and compelled arbitration in a case suing a nursing home over the care and treatment of a decedent (Nelson v. Heartland of Galesburg IL LLC).
O’Brien also upheld the integrity of circuit court decisions in several other cases. In Illinois v. Jones, she concurred that the lower court didn’t abuse its discretion by sentencing a defendant to prison, even though the defendant said the court failed to consider her medical condition.
In more administrative cases, O’Brien concurred in a decision denying the request of a Michigan resident, on jurisdiction grounds, who wanted to obtain an Illinois firearm owner’s identification card (Snedeker v. Will County State’s Attorney’s Office). O’Brien also upheld an $80,000 environmental fine against an excavation firm, finding a state agency didn’t err in holding the firm liable (Illinois v. IronHustler Excavating Inc.).
Family of Judges
Rochford, a Loyola University School of Law graduate, is a former English teacher, assistant state’s attorney, and sole practitioner who focused on trusts, estates, and real estate law while in private practice. She was sworn into office in December by her cousin, Mary K. Rochford, who serves as an Illinois appellate judge.
The new supreme court justice was previously an associate circuit court judge in Lake County, Ill., where she served since 2012. She was first assigned to hear criminal matters and family law cases, and in probate she presided over estates and guardianships. Last year, she was assigned to the court’s civil division.
Rochford was “highly recommended” for her new job, according to an Illinois State Bar Association evaluation based on 250 responses and an in-person interview.
At a candidates’ forum, Rochford said she’d never really thought of campaigning for the state Supreme Court until the state’s judicial district map was redrawn in 2021 for the first time since 1964, reducing the Second District’s territory from 13 counties to just five—including a county where Rochford resides.
She has ruled on an array of cases, including business disputes and medical malpractices cases, but she said the ones that mean the most to her—"the ones I still carry with me to this day"—are cases involving children and the disabled, she said at the forum.
Rochford was an Illinois State Bar Association board member for nearly a decade, served as president of the Lake County Bar Association, and is the current secretary of the Illinois Judges Association.
During her judicial career Rochford has worked on issues to improve access to justice and her volunteer efforts have focused on Illinois literacy initiatives. During the worst of the Covid-19 pandemic, she released videos of her reading childrens’ books since she couldn’t visit classrooms in person, something she regularly did.
The Democratic Women of Lake County, a group pushing to increase the number of women in elective office, in 2021 presented to Rochford its award named for former US Supreme Court Justice Ruth Bader Ginsburg.
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