| In a prior column, we analyzed some of the complex issues raised in a federal lawsuit brought by Judge James R. Brown against the Justices of the Illinois Supreme Court. Judge Brown had served as a judge on the Cook County Circuit Court (a state trial court of general jurisdiction) for 18 years, retiring in 2020. In September of 2025, Judge Brown submitted an application for a “temporary recall appointment” on the Cook County Circuit Court. Article VI of the Illinois Constitution allows the Illinois Supreme Court to assign any retired judge to “recall” service when needed. The Illinois Supreme Court assigned Judge Brown to a one-year recall stint in Cook County Traffic Court. Soon thereafter two Chicago-based bar associations conveyed objections to the Illinois Supreme Court concerning Judge Brown’s appointment, based on partisan statements he had made on a news blog and in a podcast appearance shortly before he was to resume the bench. In apparent response to these complaints, the Illinois Supreme Court vacated (i.e., terminated) Judge Brown’s recall appointment. Brown then sued the Justices in federal district court, alleging that his removal violated the Illinois Constitution, under which, he argues, impeachment initiated by the state legislature and proceedings undertaken by the Illinois Courts Commission are the only two permissible ways to remove judges, and that his removal violated his free-speech rights and deprived him of property without adequate procedure in violation of the First and Fourteenth Amendments. | | At the time of our earlier column, Judge Brown was seeking a preliminary injunction reinstalling him to the bench during the pendency of the litigation. The Justices had opposed that request and had filed a motion in the district court to dismiss all or parts of Judge Brown’s lawsuit for several reasons: First, under principles of federalism and comity, the federal court should abstain from cases involving state supreme court exercise of managerial authority. Second, the Justices were entitled, under notions of judicial immunity, to be free from damage liability, and 42 U.S.C. § 1983 precludes the issuance of an injunction against a judge. Third, because Judge Brown had failed to state a valid claim under the Due Process Clause in that, as a matter of Illinois state property law, he had no property interest in a temporary recall assignment. And finally, Judge Brown’s First Amendment claim should fail because the Illinois Supreme Court has demonstrated a sufficiently strong interest in the administration of the court system to justify the burdening of any free-speech interest Judge Brown may have had in his public commentary. | | The federal district court has now ruled on Judge Brown’s application for a preliminary injunction and on the Justices’ motion to dismiss the lawsuit. The court declined to issue a preliminary injunction. Although it determined that because Judge Brown’s assignment was not adjudicative in nature, the bar on injunctive relief in the text of § 1983 “against a judicial officer for an act or omission taken in such officer’s judicial capacity” (added in 1996) did not apply, the court nonetheless held that abstention was warranted and the federal case should therefore be stayed (and no preliminary injunction should issue at this time). The court reasoned that “[t]horny and unprecedented questions of Illinois state law abound in this case,” particularly questions about the allocation, under the state constitution, of authority to terminate a temporary judicial assignment, and the permissible grounds on which that authority can be exercised, and resolution of such state-law questions could obviate the need for the federal court to decide Judge Brown’s federal claims. (For instance, Judge Brown might prevail if the state courts ruled that the state supreme court simply lacked power to remove him from office.) In the alternative, the district court also explained that even were abstention unwarranted, it would still deny the preliminary injunction because even though Judge Brown had demonstrated a likelihood of success on the merits of the due process claim (though not, the court thought, on the First Amendment claim), he had not demonstrated irreparable harm absent preliminary injunctive relief and the balance of equities favored the Justices given their interest in overseeing, with public confidence, the administration of the state courts. The district court also rejected the Justices’ motion to dismiss because it found that Judge Brown had adequately pleaded claims of violations of free speech and due process. (As to the former, the court believed that even though the claim was unlikely to succeed on the merits, it was not so flawed as to be dismissed for failure to state a claim.) | | The district court’s bottom-line rulings (to abstain and not to dismiss), at least at this stage of the case, are defensible (and indeed correct), but much of the court’s reasoning (or lack thereof) strikes us as problematic. For starters, in its determination that abstention was warranted, the district court, seemingly unsure of which line of the admittedly fuzzy doctrines of abstention might apply, invoked Supreme Court caselaw concerning so-called Pullman, Burford, Younger, and Colorado River abstention (along with circuit court cases applying these doctrines) to reach the conclusion that resolution of state-law issues are reasonably likely to resolve the case and that therefore litigation should first proceed in state court. The trouble is that, besides its citation of these landmark cases, the district court provided very little analysis to support its determination that abstention was warranted. Abstention doctrine (precisely because the abstention rationales can seem murky and might, if not carefully applied, improperly deny federal claimants their legally entitled days in federal court) requires a court to provide a precise rationale, grounded tightly in the circumstances of the particular case, for any decision to abstain. Railroad Commission of Texas v. Pullman is the case that stands most clearly for the proposition that federal courts can appropriately exercise discretion to stay a case involving federal constitutional claims where “constitutional adjudication plainly can be avoided if a definitive ruling on [a] state issue would terminate the controversy.” Abstention in such instances “further[s] the harmonious relation between state and federal authority” and reflects the concern that federal courts should not “decide an issue by making a tentative answer which may be displaced tomorrow by a state adjudication.” But alongside these broad principles, the Supreme Court has repeatedly instructed that Pullman abstention requires that there exist “unsettled questions of state law” and is inappropriate unless “the state [law] is of an uncertain nature, and is obviously susceptible of a limiting construction.” Although the Court itself is no model of consistency in this regard, it has further explained: | In the abstract, of course, such possibilities [that state law can be construed in a way that eliminates the need to resolve federal constitutional questions] always exist. But the relevant inquiry is not whether there is a bare, though unlikely, possibility that state courts might render adjudication of the federal question unnecessary.
| | Passages like these have led the leading treatise on federal courts (Wright & Miller’s Federal Practice and Procedure) to observe in the volume dealing with Pullman abstention (which has been co-authored by one of us, Vik, for over two decades) that in many cases “the Court has seemed to call for a very strong showing that construction of the state law may avoid the constitutional question.” | | In Judge Brown’s case, this means the district court was obligated to explain in some detail why there is anything more than a “bare, unlikely” possibility that abstention in favor of the state courts would make the federal claims go away. We’re not sure the district court discharged this burden. In particular, the district court did not adequately deal with the (highly unusual) fact that the defendants in the case are themselves the Justices of the state supreme court who have final authority on the meaning of the state constitution and other state laws that the district court thought required more definitive resolution. In their motion to dismiss, the Justices asserted that because the state constitution gives the Illinois Supreme Court an appointment power, that court (as a matter of state constitutional interpretation) also necessarily has an accompanying removal power, such that removal of Judge Brown was perfectly legal under the state constitution. To be sure, these assertions were made in a legal brief by the Justices as defendants and through counsel, rather than in an adjudicated case coming to the Justices from the lower state courts. But it is fair to wonder whether there is any reasonable likelihood the Justices, were they to decide the issues of state law as members of a court and in a judicial capacity, would reach a different outcome in this very case. If the briefs filed by Judge Brown contesting the Justices’ view of the state constitution did not convince the Justices, why would the briefs and arguments in state court be any different? Again, there is certainly a “bare possibility” that the full adversarial process (featuring input from lower state courts) in which the Justices are asked to decide a state law case might lead to a different outcome, or that the Justices in such a state-court litigation would all recuse themselves in favor of lower-court state judges who have a different view of the state constitution. But we think the federal district court was obligated to explain why these outcomes were plausible rather than provide a mere recitation of generic abstention principles. | | Ironically, the district court missed what could have been a possibly stronger justification for abstention when it came to Judge Brown’s argument that he was deprived of a property interest—the temporary assignment—without procedural due process. As to this claim, the district court flatly rejected the Justices’ argument that, under state law, there is no property interest because the state supreme court has full discretion to remove a judge from a temporary assignment. But rather than conclusively rejecting the Justices’ position here, abstaining in favor of further state proceedings might actually have made considerable sense. As we noted in our prior column, while state courts are ordinarily the complete master interpreters of state law, when state law determinations (e.g., whether state law confers a property interest) are antecedent to the adjudication of distinct federal claims against state actors (under, say, the due process or takings clauses), federal courts have more leeway (indeed obligation) to second-guess state-court determinations of state law, to ensure state courts are not manipulating state law to avoid liability under a federal claim that is intended to safeguard independent federal interests. For that reason, a fuller explanation by the Illinois Justices—sitting as a court—for why Judge Brown had no state-law property interest, discussing at length other state cases not involving state defendants, could help reveal whether the Justices’ views of state law expressed in their brief were being applied fairly and even-handedly or instead were being warped to help the Justices as defendants. Such additional explanation by the Justices could help decide whether to defer to the state-court interpretation of state property law, or instead to be skeptical of it. (In this regard, we note that abstention can be warranted if clarification of state-law issues helps inform, rather than completely obviate, resolution of the federal claims.) | | As to the First Amendment claim, in our prior column, we observed that under Pickering v. Board of Education (and related cases) there was at least a plausible argument that an interest in public confidence in the courts outweighed Judge Brown’s right to speak such that his removal did not violate the First Amendment. The district court’s ultimate determination, therefore, that Judge Brown was not entitled to a preliminary injunction based on this claim, seems reasonable. But here too the district court’s explanation was far from fully convincing; indeed, the district court’s primary rationale—that Judge Brown had not demonstrated irreparable harm—is in our view clearly wide of the mark. Where speech is at issue, irreparable harm is usually presumed because the inability to speak cannot easily be remedied by money damages or otherwise. But the district court reasoned that Judge Brown would be able to speak more if an injunction requiring his return to the bench were denied rather than granted. The court explained: | [I]f the Court were to grant Brown’s requested injunctive relief and order his preliminary reinstatement to the bench, the breadth of his ongoing right to speak freely would—ironically—be diminished rather than promoted. . . . Brown himself admitted that he would not make statements similar to those he made in the column as an active judge. . . . The First Amendment cases establishing a presumption of irreparable harm resulted in removing speech restrictions so that the result was more speech, not less. . . . The presumption of irreparable harm at the preliminary-injunction stage does not apply on all fours to this case.
| | This reasoning is plainly flawed. The First Amendment exists not simply to protect one Judge Brown. It exists to protect all of the other would-be judges concerned about how their pre-judicial expression might diminish their chances of an appointment to the bench. An injunction of reinstatement in the present case might indeed result in Judge Brown—in office—being less outspoken. But it would assure others inclined to judicial office that they can engage in speech without the risk of later being penalized for it by being refused an appointment. That would remove the chill from many speakers, not just one. While the district court is right that the First Amendment generally prefers more speech to less speech, the court’s application of that important idea in the context of this dispute got things exactly backwards because the judge focused only on the speech of one speaker, and not the aggregate quantum of speech by all would-be speakers, that is relevant. | | There is a similar myopic quality to the district court’s rejection of the Justices’ motion to dismiss, on the basis of qualified immunity, Judge Brown’s claims for monetary damages. Although the court observed that “Brown has not identified a specific Seventh Circuit or Supreme Court case that would clearly establish that the Illinois Justices violated Brown’s right to procedural due process” (something that would have deprived the defendants of qualified immunity), the district court nevertheless concluded that there was no need to resolve the qualified immunity issue at this juncture. The court explained: | [B]ecause the Court is abstaining from jurisdiction, there is no need to definitively decide qualified immunity from monetary damages right now. It is true that qualified immunity is an immunity from suit, not just judgment. But this case is stayed, so the Illinois Justices are (at least for now) enjoying the functional equivalent of qualified immunity from suit for monetary damages.
| | This reasoning, too, fails to appreciate the stakes and the way a lawsuit can affect the psychology of litigants in a given case and writ large. A stay of a lawsuit is not remotely comparable to a dismissal. When a claim is dismissed, a defendant no longer has to answer for it and is free not to fret over it. When a claim is stayed, the specter of potential liability continues to hang over a defendant’s head, and will have to be addressed at some future point. Moreover, if other, would-be defendants know that their assertions of qualified immunity in the future can languish for months/years, they too are affected psychologically and perhaps in the performance of their jobs, effects that qualified immunity (according to its adherents) are intended to ameliorate. | | The district court’s decision to abstain is likely not the last we will hear of this interesting and complex litigation. Stay tuned. |
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