Misconduct allegation against appellate judge remained private for years

Months before the Democratic primary election, leaders in the local legal community knew that a retired appellate justice had submitted a memo to local bar associations accusing an Illinois Supreme Court candidate of trying to influence a case on his relative’s behalf.

The allegation had remained mostly private since 2016, when former Appellate Judge Mary Anne Mason wrote a memo for her file outlining what she considered Appellate Judge Shelly Harris’s unethical involvement in his nephew’s case.

Chicago Sun Times

Appellate Judge Shelly Harris

But after Harris became a candidate for an open seat on the state Supreme Court, Mason shared her memo with the various bar associations that evaluate the judicial candidates. In that memo, which Mason has described to Injustice Watch but not made public, she contended that Harris had attempted to discuss an appeal brought by the judge’s nephew, Jason Harris, with her as well as with another member of the three-judge panel assigned to decide the case. Appellate Judge Harris has denied the allegations and neither he nor his nephew have been found to have engaged in any wrongdoing.

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None of the bar associations who had access to the memo revealed Mason’s accusation in their evaluations of Harris that were made public before the March Democratic primary. Of the 13 area bar associations, which include the Chicago Bar Association, the Chicago Council of Lawyers, the Illinois State Bar Association and several affinity groups, six rated Harris negatively. The Illinois State Bar Association, the only one of those six groups to write a narrative, cited complaints about Harris’s temperament.

Harris finished third in a field of seven candidates in the race.

Mason said that in 2019 the state Judicial Inquiry Board, which investigates judicial misconduct, belatedly learned of the allegation of misconduct. But that board, which operates in secret to protect judges from unfounded complaints by disappointed litigants, also has made nothing public about the allegation. Kevin Fee, the board counsel, said that the agency does not comment on confidential matters.

Concern over process

Now, prominent members of the local legal community are privately expressing concern about whether the memo was handled properly and are considering whether local bar associations need to change their handling of allegations from credible sources. Most declined to say anything publicly, citing the confidentiality agreement of bar association evaluations.

“Any credible information that bears on the decision to elect a judge, the public has a right to know. And they should have all the facts surrounding that information,” said Cook County Bar Association President Jerrod Williams, emphasizing that he was not speaking specifically of the Harris case.

In general, he said, an appellate judge would appear to be a credible source of information.  

Former Appellate Judge Mary Anne Mason

Neither Shelly Harris nor his nephew, Jason Harris, responded to repeated requests for comment by Injustice Watch. But a lawyer who helped Shelly Harris in his defense before the bar associations said last week that Harris had done nothing wrong.

Attorney Warren Lupel said that Mason’s allegation was motivated by her support of Margaret McBride, another appellate judge who, like Harris, unsuccessfully sought the open Illinois Supreme Court seat.

Mason rejects the idea that she would have written a memo falsely accusing Harris of unethical interference in a 2016 case, and then, more than three years later, provided that memo to bar associations because of politics.

An ugly legal dispute

At issue are a series of lawsuits and counterclaims that stem from a 2009 fire to the home of a woman named Reava King. More than a year later, King sued Jason Harris, identified in court papers as a public adjuster as well as an attorney, for allegedly failing to complete rehabilitation work for which King claimed she paid.

Things spiraled downward. In 2011, King sought an order of protection against Harris, contending he was stalking her. Harris denied the allegation. After hearing testimony, a Cook County circuit judge denied King’s motion. Jason Harris then filed a motion in Circuit Court for sanctions against King’s attorney, Steven Pollack, contending he had pursued the protection order despite knowing there was no factual basis.

After Circuit Court Judge Patrice Ball-Reed rejected Jason Harris’s motion for sanctions, Harris appealed to the Illinois Appellate Court, where the case was assigned to a three-judge panel of Mason, Terrence J. Lavin and James Fitzgerald Smith. After Jason Harris failed to timely pursue the appeal, instead seeking a series of extensions, the three judges agreed to an order, signed by Mason, dismissing the case. Court records reflect that Harris then failed to persuade the panel to reconsider the dismissal.

It was at this point that the alleged conversations involving Shelly Harris are at issue.

Attorney Warren Lupel, Harris’s legal advisor in the Chicago Bar Association consideration, said that Mason’s order denying a routine extension was so extraordinary that it became the “talk of the court.”

It was in that context, Lupel said, that Harris spoke to his colleague, Lavin, about the case. “I’ve been a lawyer for 50 years,” Lupel said in an interview. “The appellate judges always, always allow someone to file a brief late if they’re asking to file it now.”

Even that version appears to raise ethical questions. “The best practice is for a judge not to discuss a relative’s case with any other judge. Period,” said retired Lake County Circuit Judge Ray McKoski, an expert in Illinois judicial ethics, in an interview. “The whole thing, the whole situation could have been avoided with no problem and no need to investigate somebody’s intent, no need to worry about the appearance of impropriety.”

Mason last week called “ridiculous” the idea that her order had become the talk of the court, saying there was nothing extraordinary about the order after Jason Harris missed repeated deadlines.

According to Mason’s account, after she learned from the second judge – whom she declined to identify as Lavin — that Shelly Harris was allegedly discussing his nephew’s case, she called Harris into her office on March 29, 2016. Harris, she said in interviews with Injustice Watch, began by saying, “’I want to tell you about my nephew, my sister’s son.”

She described in an interview her response: “I said, ‘I don’t want to talk about your nephew.’ He said, ‘I thought that’s why I was here.’ Then I said, ‘I need you to tell me why you’re trying to interfere in this case on behalf of your nephew. It isn’t ethical.'”

Mason not only wrote a memo of the incident, she disqualified herself from the appeal which then was transferred to another division. Mason said she regrets not reporting the encounter at the time to the court’s executive committee or the state Judicial Inquiry Board.

Lupel said that her account is wrong. He said that after Harris mentioned to Lavin that it was a “harsh order,” Harris did nothing further. Lupel said that what Harris described happened next: Mason entered his office and berated him, but nothing substantive about the case was discussed. Mason denies that this occurred.

Lavin and the third member of that panel, Fitzgerald Smith, both did not respond to requests by Injustice Watch to discuss the case.

In any event, Mason’s accusation lay dormant for more than three years until Harris became a Supreme Court candidate. “One wonders why it became relevant three and a half years later, when her close friend and Judge Harris were running for the same office,” Lupel said.

Another abrupt recusal

Pollack, the opposing attorney in Jason Harris’s case, said he knew nothing of the backroom drama that slowed down a decision in Harris’s quest for sanctions against him until earlier this month.

But the legal dispute between him and Jason Harris did not end with the appeal. After the sanctions effort failed, Jason Harris filed an amended complaint in Cook County Circuit Court that Pollack had engaged in malicious prosecution and defamation, The complaint alleges that Pollack had brought unsubstantiated claims about Jason Harris to several agencies including the Cook County State’s Attorney and the Illinois Attorney General..

Pollack filed a motion to dismiss the case, which was assigned to Cook County Circuit Judge John H. Ehrlich.

On May 2, 2017, Ehrlich held a hearing on the dismissal motion. At the end of the hearing, Ehrlich ruled that he was granting Pollack’s motion to dismiss the case.

Nothing else was filed after the hearing. But that afternoon Judge Ehrlich issued another order, stating he was vacating his own order, disqualifying himself from the case, and sending it back for reassignment.

Ehrlich gave no reason for that decision, and rejected a motion by Pollack to clarify the unexplained order. Ehrlich declined to elaborate last week, telling Injustice Watch he does not as a matter of policy discuss his cases.

The case was reassigned to Judge Moira Susan Johnson who dismissed Harris’s lawsuit in November, 2017.