A gale of his own making

Former governor and 7th Circuit judge left tarnished legacy

Judging History

Michael B. Hyman

Justice Michael B. Hyman sits on the Illinois Appellate Court, 1st District. He is a former president of The Chicago Bar Association and the incoming president of the Illinois Judges Association.

July 22, 1974: Seventh U.S. Circuit Court of Appeals judge and former Illinois Gov. Otto Kerner Jr. resigns more than a year after his conviction on bribery, tax evasion and other counts.

Any career, but especially a career in politics, can be sailing along just fine until it’s suddenly swept away by a gale of one’s own making. This description applies to Kerner.

His was a proud record of public service burst asunder in ignominy following a federal investigation of how he came to own stock in a harness-racing corporation.

To some, Kerner’s fall was bewildering. Others saw it as a ride he had coming. Kerner consistently asserted his innocence. Ironically, as governor, Kerner was referred to as “Mr. Clean.”

Kerner carried his father’s name and, like his father, followed a political path. The elder Kerner was a protege of Chicago Mayor Anton Cermak, and he held numerous public offices such as state court judge and Illinois attorney general before his appointment to the 7th Circuit by President Franklin D. Roosevelt.

The younger Kerner, born in 1908, would eventually sit on the 7th Circuit as well. His path included graduation from Northwestern University School of Law, marriage to Cermak’s daughter and stints as U.S. attorney for the Northern District of Illinois and Cook County Circuit Court judge.

In 1960, Kerner won election to the first of two terms as governor, only the second Democrat to hold the office in nearly 100 years.

According to a published report quoting Eileen Mackevich, executive director of the Abraham Lincoln Presidential Library and Museum, “So many of Kerner’s achievements in multiple areas — mental health, school reform and especially civil rights — broke new ground and bettered people’s lives. We need to understand both his failures and his achievements.”

Following the summer riots in black communities in 1967, President Lyndon Johnson established the National Advisory Commission on Civil Disorders with Kerner at its helm.

The Kerner Commission, as it was known, brought national prominence to Kerner. The commission’s report concluded that “white racism” and lack of economic opportunity were driving the nation “toward two societies, one black, one white — separate and unequal,” and called for changes “at a scale equal to the dimension of the problems.”

Within weeks of the report’s release, Johnson nominated Kerner for a seat on the 7th Circuit, and on May 20, 1968, Kerner recited the judicial oath.

But his tenure hearing cases would be relatively short.

Allegations emerged that Marge Lindheimer Everett, manager of two horse racing tracks, bribed Kerner and a close associate while Kerner was governor by giving them racetrack stock valued at $300,000 for $50,000 in exchange for the setting of preferential racing dates and other official acts. She even reported the payoffs on her federal tax returns.

Kerner asked to appear before the grand jury investigating him. He explained the various transactions and denied accepting a bribe or doing “anything to deprive the people of Illinois of their right to honest, good government.” On Dec. 15, 1971, Kerner was indicted and promptly took a leave of absence from the court.

The trial in Chicago’s federal court, held before a Tennessee federal judge, lasted six weeks and ended with Kerner becoming the first sitting federal judge to be convicted of a felony.

Before the U.S. House could vote to impeach, Kerner resigned from the bench. At the sentencing hearing, Kerner told the judge, “I shall always be satisfied that my conscience and my record of loyal and dedicated service as governor of this state were never tarnished or my integrity bought. In the end, this will bring me peace.”

The crux of the prosecution’s case was the honest services mail fraud statute.

In the per curium opinion upholding his conviction, the panel, sitting by designation from other circuits, noted, “The citizens of Illinois were defrauded of Kerner’s honest and faithful services as governor.” United States v. Isaacs, 493 F.2d 1124 (7th Cir. 1974). (The U.S. Supreme Court would find the statute unconstitutional in McNally v. United States, 483 U.S. 350 (1987), although within a year, Congress amended the mail fraud statute to override McNally.)

Kerner served seven months and nine days of his three-year sentence. He was released on parole in March 1975 due to a diagnosis of advanced lung cancer.

In the short time he had left, Kerner worked for prison reform. He died at age 67 in May 1976, months before his nemesis, U.S. Attorney James Thompson, was elected Illinois governor.

There has been speculation that Kerner was the victim of a Nixon vendetta, and White House tapes provide fodder.

Nevertheless, a reputation once shattered is nearly impossible to rehabilitate. Whether self-inflicted or at the hands of powerful people, Kerner’s reputation will likely never recover from the wound history recorded.