State Supreme Court: Officials may, sometimes, use campaign funds for criminal defense

SPRINGFIELD — The Illinois Supreme Court ruled Thursday that elected public officials and their campaign committees may, in limited circumstances, use campaign funds to pay criminal defense attorney fees.

The case involved a former Chicago city alderman, Danny Solis, who reportedly avoided federal prosecution by agreeing to cooperate with the FBI and Department of Justice in their investigation of another alderman, Ed Burke, who was indicted in May 2020 on federal corruption charges.

Ed Burke is married to Chief Justice Anne Burke, who recused herself from the case. Two other justices, Mary Jane Theis and P. Scott Neville Jr., also did not take part in the decision, leaving only four justices to decide the case – the minimum number needed to issue a majority opinion.

Solis served on the Chicago City Council from 1996 to 2019 representing the city’s 25th Ward and for a time chaired the council’s powerful Zoning Committee. He did not run for reelection in 2019 and was succeeded in office by current Alderman Byron Sigcho-Lopez.

According to published reports, Solis had been under investigation as part of the federal government’s wide-sweeping probe into public corruption involving state and local elected officials. But in June 2016 he began cooperating with investigators by secretly recording conversations with other public officials.

When he first began cooperating with investigators, he retained the law firm of Foley & Lardner LLP. On May 21, 2019, the day after Sigcho-Lopez was sworn into office, the 25th Ward Democratic Organization – the committee that had backed his campaigns – paid the firm $220,000 for legal fees.

What is known now, but was not publicly known then, is that on Jan. 3, 2019, Solis entered a deferred prosecution agreement with the U.S. Attorney’s office. That was the same day prosecutors indicted Alderman Burke on 19 counts for allegedly using his position to corruptly solicit business for his private law firms from companies involved in redevelopment projects in his 14th Ward.

That information became public in August 2020 through court filings when Alderman Burke’s attorneys sought to suppress some of the evidence that had been gathered against him.

In October 2019, Sigcho-Lopez filed a complaint with the Illinois State Board of Elections alleging that the expenditure violated provisions of the Illinois Election Code that regulate campaign disclosure and finance. Specifically, he argued, the payment was made to settle a personal debt that was not related to any of his campaigns or for governmental or political purposes directly related to his official duties or responsibilities.

The board, however, dismissed the complaint on the grounds that spending campaign funds for criminal defense was not specifically prohibited in the Election Code and that Solis’ legal bill was not a personal loan or debt. Sigcho-Lopez then appealed that decision to the First District Court of Appeals which upheld the board’s decision.

During oral arguments before the Supreme Court in January, much of the discussion focused on whether criminal defense fees constitute “customary and reasonable expenses” for an officeholder’s governmental and public service functions.

Sigcho-Lopez’s attorney argued that the whole purpose of campaign disclosure laws is to deter and mitigate political corruption, and so the use of those funds to defend an official against charges of political corruption would go against the intent of the law.

But an attorney for the 25th Ward committee argued that a public corruption investigation is, by definition, directly tied to an officeholder’s official duties and, therefore, should be considered an allowable expense.

“Are we at that point in Illinois where we’re going to say that that’s an ordinary expense of holding public office?” Justice Michael Burke – who is not related to Anne or Ed Burke – asked during the hearing.

Other justices pointed out, however, that political campaigns retain attorneys for a wide range of reasons. They also noted that public officials are sometimes the target of baseless allegations of corruption from political rivals.

In the court’s 17-page ruling released Thursday, the remaining four justices drew a narrow line between the arguments of Sigcho-Lopez and those of the 25th Ward committee.

They partially rejected the committee’s argument that payment of criminal defense fees is always permissible solely because the General Assembly did not specifically include them in the list of prohibited expenses. But it also partially rejected Sigcho-Lopez’s argument that the legal fees were a prohibited “personal debt.”

Instead, they found that because the General Assembly had not specifically prohibited the payment of criminal defense attorney fees from campaign funds, it is reasonable for the Board of Elections to rule on a case-by-case basis.

And in Solis’ case, Justice David K. Overstreet wrote for the majority, the expense was permissible because Solis had not been indicted on criminal charges but had only worked with federal investigators “using his official capacity to expose public corruption.”

“Considering the evidence before the Board, we find that the Board’s conclusion—that Solis’s legal fees amounted to a proper expenditure not prohibited as ‘satisfaction or repayment’ of a personal debt … but incurred ‘to defray the customary and reasonable expenses of an officeholder in connection with the performance of governmental and public service functions’ … — was not clearly erroneous,” the opinion concluded. “Thus, we affirm the Board’s decision, finding that the complaint was not factually and legally justified.”

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