Monday, November 21, 2016

TV report accuses Circuit Court judge of taking unnecessary sick leave

A Cook County Circuit Court judge, Arnette Hubbard, was recently singled out by WBBM-TV in an investigative report by Pam Zekman for taking 17 months of paid sick leave as a result of injuries allegedly sustained in an altercation outside the Daley Center in July 2014. The link will take you to Ms. Zekman's piece.

Judge Hubbard was one of the judges retained in office at the November election just concluded. She was unanimously recommended for retention by the Chicago Bar Association and each of the member groups of the Alliance of Bar Associations for Judicial Screening. The evaluation process is confidential, so I can not tell you authoritatively that the bar associations were aware that Judge Hubbard had been off work for any extended period (whether 17 months or some, other, lesser figure) -- but I would bet a significant sum that this was indeed known, and explored by, the various bar groups before each group made their respective recommendations.

The person involved in the altercation with Judge Hubbard, a man by the name of David Nicosia, was charged with aggravated battery and a hate crime as a result of this incident. He was acquitted of these charges this past August after a bench trial before Judge James Obbish.

The implication of the Channel 2 report was that Judge Hubbard was not seriously injured in the altercation. However, the defendant's acquittal in the criminal case is not conclusive on whether Judge Hubbard was in fact injured or whether Mr. Nicosia is legally responsible for those injuries. Judge Hubbard has sued Nicosia for damages. She is represented by Power, Rogers, and Smith LLP in the 2016 Law Division case. Mr. Nicosia is represented by Breen & Pugh, the firm that represented him in the criminal case. This, presumably, is because Mr. Nicosia's insurer has asserted a reservation of rights and agreed to allow Mr. Nicosia to choose his own attorney to avoid a potential conflict of interests. Criminal defense attorney Thomas M. Breen is prominently featured in Zekman's report.

The Cook County Bar Association has issued a statement demanding an apology and retraction of the story from Channel 2.

Nothing here advances the story in any particular; however, the Channel 2 piece about Judge Hubbard was recently raised in a comment submitted to this blog. So there are apparently rumors circulating; these are the known facts, as best as I can ascertain them.

Diversity Scholarship Foundation Unity Dinner set for December 1


The 2016 Diversity Scholarship Foundation Unity Dinner and All-Bar Swearing In Ceremony and Reception is set for December 1 in the Grand Ballroom of the Chicago Hilton, 720 South Michigan Avenue. The Reception begins at 5:00 p.m.; the dinner and program follows at 6:00 p.m.

Tickets are $150 each (a table of 10 costs $1,500) are available at this link (there is a small service charge).

Persons interested in sponsoring the event are invited to email dsfchicago@gmail.com.

Persons to be honored at the dinner as Advocates for Diversity are Chasity Boyce, Diversity & Inclusion Projects Manager, Skadden, Arps, Slate, Meagher & Flom LLP; Hon. William J. Haddad (Ret.); Tiffany Harper, Associate Counsel, Grant Thornton LLP; Cecilia Horan, Partner, Hinshaw & Culbertson LLP; and Hon. Jorge L. Ortiz, Chief Judge, Circuit Court of Lake County. An Access to Justice Award will be presented, in memoriam, to the late Appellate Court Justice Laura C. Liu. Illinois Secretary of State Jesse White will receive the Unity award and scholarships will be presented to 20 law student award recipients.

Law Professor claims that part of the Constitution is unconstitutional

It could be satire, of course. That would be the best case scenario. For some reason, satire is notoriously hard to separate from mere stupidity on the Internet. In fact, satire seems to attract stupidity; thus, every now and then, the North Koreans or the Iranians mistake a yarn on the Onion for a serious news story.

The article in question here, "Is The Electoral College System For Choosing Our President Unconstitutional?" appeared in the Huffington Post. The Huffington Post is not the Onion. At least not intentionally, or all the time. So this makes the determination of whether this article is meant to be laughed at, instead of merely laughable, that much more difficult.

And there really is a Professor Leon Friedman who teaches Constitutional Law at Hofstra University, in Hempstead, New York. He is pictured at left. And he's no adjunct, either; Friedman is the Joseph Kushner Distinguished Professor of Civil Liberties Law. That sounds impressive. Tuition at the Maurice Deane School of Law at Hofstra University is a cool $54,250 a year, according to this U.S. News & World Report web page. This, too, sounds impressive. According to Wikipedia, only 57.7% of the 2014 graduates of the Deane Law School had found "full-time, long-term, JD-required employment nine months after graduation." This seems less impressive.

A possible partial explanation for this anemic statistic is suggested if the article was intended to be serious.

Of course, it could be a case of stolen identity. Some jokester may have bamboozled the Huffington Post into believing that the Professor Friedman who contributes articles is the real Professor Friedman who teaches at Hofstra. As FWIW recently reported, there have been some fairly sophisticated identity appropriations out here in the Ether. On the other hand, the bio of the Huffington Post's Professor Friedman lines up fairly well with that of the apparently real prof.

At the risk of foolishly mistaking satire for seriousness, let's get this out of the way: The Electoral College can't be unconstitutional, because it is expressly provided for in the Constitution. Twice. First by Article II, Section 1, and then again by the 12th Amendment. You know, the Amendment drafted after the Election of 1800 resulted in a tie between Thomas Jefferson and Aaron Burr? While constitutional law professors on Long Island may not have much working knowledge of the original document, one would think they'd be conversant with that musical still playing on Broadway, Hamilton.

Now, there might be an argument that the Electoral College has outlived its usefulness to the nation and should be abolished in the only way possible (for the benefit of any law professors in the audience, that would be by constitutional amendment). It's a bad argument, in my opinion, because the need to prevail in the Electoral College should force a candidate to seek support in a majority of the states, and not just seek majorities in the largest population centers. In this way a candidate must try and build a truly national consensus. This helps hold the nation together after a close national election. Also, properly functioning, the Electoral College serves as a mandate multiplier, which again serves the laudable purpose of bringing the nation together after a close national election.

Most national elections are close. A few million votes, and only a few percentage points, separate the winner and loser. But---usually---the Electoral College turns that close result into a seeming landslide for the popular vote winner.

No, that's not what happened this time. Or in 2000. Or in 1876. Or in 1824. But that's the whole list. And, in three of those four elections, third and/or fourth party candidates prevented the top vote-getter from achieving a majority of the votes case (the exception was Samuel Tilden in 1876; he had 50.9% of the vote).

But, writes, Professor Friedman---or whoever really wrote that Huffington Post piece---"each Presidential vote in Wyoming is worth 3.6 times more than each vote in California."

A graph depicting this same 'disparity' has been floating around Facebook of late.

It is a dishonest, emotional argument: Wicked voters in backward, barbarian Wyoming outweighed enlightened voters in sunny, sophisticated California.

Here's how the Electoral College is actually put together: All states start with two electoral votes -- one for each senator. Each state's additional electoral votes comes from the number of representatives it has in the House. Wyoming has one representative for its 584,000 population; thus, it gets one more electoral vote, for a total of three. At the other extreme, California has 55 electoral votes -- for its two senators and 53 representatives. Each of the 53 House members in California represents, according to the numbers in the graphic, about 735,000 people. This is a discrepancy, yes, but not as great as the graph would suggest. And the discrepancy has nothing to do with the Electoral College; this is, rather, a function of the House of Representatives choosing not to grow with the national population.

The size of the House is not a Constitutional problem. Article I, Section 2 of the Constitution provides only, "The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative." Although the House was regularly expanded during the 1800s (from the original 65 reps in 1789) the size of the House has been capped at 435 since 1911 -- and a lot has changed in the past century.

Texas is arguably even more shortchanged than California -- each of the 36 House districts in that state have a population of approximately 763,000. Montana has over a million people in its sole House district.

Rhode Island voters would have more electoral college clout than voters in either Wyoming or California, according to the reasoning of Professor Friedman or the Facebook graph. Rhode Island has two representatives (thus, four electoral votes) even though its two districts have populations of only about 528,149. By contrast, each of Idaho's two congressional districts contains roughly 827,000 persons. So, Idaho's four electoral votes are worth 'less' than Rhode Island's.

The Electoral College did not cause these discrepancies. These are caused entirely by the size of the House of Representatives. And all because of a law passed over a 100 years ago -- which, by the way, absolves both the Clintons and Donald Trump alike from responsibility.

Nor is the Electoral College responsible for the fact that, according to respectable polls from all shades of political opinion, the candidates of the major parties this year were the arguably the least popular national candidates of all time. Neither was particularly popular in their own party. Their presence at the top of their respective tickets suggests major flaws in the presidential primary process, but not in the Electoral College.

Certainly the primary process in both parties needs major, structural, fundamental reform. Maybe the size of the House of Representatives should be expanded while we're at it. But the Electoral College, whatever else its flaws may be, is not unconstitutional. If a 'distinguished' law professor was seriously arguing otherwise, we have a further illustration of why new law graduates, from any school, must take a bar review course to have any hope of passing any bar exam.

Friday, November 11, 2016

John A. O'Meara appointed to 4th Subcircuit vacancy

The Illinois Supreme Court yesterday appointed personal injury attorney John A. O'Meara to a 4th Subcircuit vacancy created by the retirement of Judge James Riley.

O'Meara's appointment is effective November 18 and terminates December 3, 2018.

O'Meara is a partner in Curcio Law Offices. According to ARDC, O'Meara has been licensed as an attorney in Illinois since 1995. According to his firm biography, O'Meara began his legal career as an Assistant Corporation Counsel for the City of Chicago before moving to a "private law firm specializing in insurance defense" (Parillo, Weiss & O'Halloran, although that firm is not mentioned by name in the linked bio). O'Meara joined Curcio Law Offices in 2002.

Wednesday, November 09, 2016

Waking up in Trump's America... some initial thoughts

I didn't think it possible that Trump would win.

I dare say that most of the people who visit this blog didn't think it possible either.

The polls said the popular vote would be close, but that Secretary Clinton would start out with a nearly insuperable advantage in electoral votes. Mr. Trump would have to win all the battleground states to have a chance at an upset. It looked like an early evening for the Clinton campaign---cute, I thought, that her party was in a room with a glass ceiling---was she going to break it, at least symbolically, at least some small part of it, during her acceptance speech? The real action, I thought, would be in the Senate races: How many Senate seats besides Illinois would the Democrats pick up?

And then the vote counting started.

Right now, in the morning, Ms. Clinton leads in the popular vote by 180,000 votes or so. The margin has widened in the last few hours. She was down by over a million when Mr. Trump claimed victory; she was up by 130,000 a few hours ago. The gap may widen or close some in the coming days; Trump may yet win a plurality when all the votes are counted. But ours is a federal republic, a union of states, and our chief magistrate is chosen by 538 electors, three from the District of Columbia, and the other 535 apportioned among the states according to their respective seats in Congress. Illinois has 20 votes in the Electoral College because we have 18 congressional districts and, of course, like every state, two senate seats.

Mr. Trump carried enough states to ensure victory in the Electoral College, 289 votes so far according to CNN, 19 more than necessary for victory. With results in Michigan and New Hampshire and Minnesota still not complete, Trump's electoral margin may yet grow.

Like many of you, perhaps, I watched a lot of the CNN coverage last night and into this morning. I found the county-by-county breakdowns remarkable... and very telling.

Here is CNN's county-by-county breakdown for Illinois:


If you click on the link, and go to the linked CNN website page, you'll see the map is interactive. You can see that Secretary Clinton's margin in Cook County was roughly 1.1 million votes. And she won the suburban collar counties, too -- yet her margin in the State as a whole is only 800,000 votes or so.

Similarly, in New York, according to the CNN county-by-county map, Secretary Clinton's 1.5 million vote lead comes largely from New York City:


The margin in California is 2.4 million votes, but the CNN map shows that most of it comes from the urban areas of San Diego, Los Angeles, and San Francisco.


In an ordinary election year, the Electoral College functions as a mandate multiplier. There are few blowouts in national elections. In 1972, when Richard Nixon beat George McGovern, he had only 60.7% of the popular vote to McGovern's 37.5%. But Nixon won in the Electoral College 520-17 (a nominally Republican elector from Virginia cast a ballot for someone other than Nixon that year). In 2008, when Barack Obama defeated John McCain, Obama had only 52.9% pf the popular vote -- but he bested McCain in the Electoral College 365 to 173.

This year, if Mr. Trump fails to regain the lead in the popular vote count, the Electoral College will not serve that mandate-multiplying function. Some will be tempted to call for abolition of the Electoral College because it 'frustrated' the 'will of the people.' But the genius of our system is that, to become President of this enormously diverse republic, one must win votes in the majority of states, not just supermajorities in a handful of urban areas. That should not be tossed away lightly.

I will leave it to the pundits to explain why Secretary Clinton's "Blue Wall" crumbled and why a rich Manhattanite with clown hair captured the loyalty, or at least the votes, of so many blue-collar, or formerly blue collar, voters. Or why Ms. Clinton in 2016 underperformed Mr. Obama's 2012 results in jurisdiction after jurisdiction (even in True Blue Illinois). Of course, these would be the same pundits who assured us we would never have to face this day.

But we do.

Tuesday, November 08, 2016

Two Republicans, Two Democrats apparent winners in 12th Subcircuit; O'Donnell apparent victor in the 13th

Appointed Judge Carrie Hamilton will apparently hold her seat in the 12th Subcircuit. With only eight precincts still outstanding (233 of 241), Hamilton leads Republican David Studenroth, 67,138 to 63,836.

Associate Judge Marguerite Anne Quinn is up 67,480 to 62,632 over Republican Thomas William Flannigan.

On the other hand, Republican James Leonard Allegretti leads Democrat Janet Cronin Mahoney 70,687 to 60,485 and Republican Steven A. Kozicki leads James Edward Hanlon, Jr. 68,999 to 63,263.

In the 13th Subcircuit, with 199 of 225 precincts reporting, Republican Kevin Michael O'Donnell is ahead of Judge Ketki "Kay" Steffen, 58,792 to 55,375.

O'Donnell holding lead over Steffen in 13th Subcircuit

Republican Kevin Michael O'Donnell holds a 2,600+ vote lead over appointed Judge Ketki "Kay" Steffen, running as a Democrat in the traditionally Republican 13th Subcircuit. With 171 of 225 precincts reporting, O'Donnell leads 49,132 to 46,438.

Updated results in the 12th Subcircuit

Quinn, Allegretti, Hamilton, and Kozicki, two Democrats and two Republicans, are leading in the four contested judicial races in the 12th Subcircuit. Here are current results from Cook County Clerk David Orr's office:


Click on the image to enlarge or clarify it.

No retention judges appear to be in peril

The Chicago Bar Association rated all 58 Cook County jurists seeking retention "qualified," recommending a "yes" vote for each.

The Alliance bar associations largely agreed (there were a few judges receiving negative recommendations from this group of that one, but every single retention candidate was recommended by a large majority of the screening bar groups).

It appears that Cook County voters have agreed. Every retention candidate appears to be comfortably ahead of the 60% + 1 threshold necessary to remain on the bench.

Early results: Close votes in 12th, 13th Subcircuits

There are only five contested judicial races in Cook County, four in the north suburban 12th Subcircuit, one in the far northwest suburban 13th subcircuit. With just over 40% of the precincts reporting, in 12th Subcircuit races, Republican James L. Allegretti is holding a significant lead over Democrat Janet Cronin Mahoney. Judge Carrie Hamilton, a Democrat, is ahead of Republican David Studenroth. Republican Steven A. Kozicki holds a slim lead over Democratic candidate James Edward Hanlon, Jr. Associate Judge Marguerite Anne Quinn, the Democratic candidate, is leading Republican Thomas William Flannigan.

In the 13th Subcircuit, with 87 of 225 precincts reporting, Republican Kevin Michael O'Donnell is leading appointed Judge Ketki "Kay" Steffen, the Democratic candidate.

None of these leads are commanding at this point.

Monday, November 07, 2016

Justice Theis announces screening committee for 11th Subcircuit vacancy

In a press release issued last Friday, Illinois Supreme Court Justice Mary Jane Theis announced that her screening committee will review applicants for an upcoming vacancy in the 11th Subcircuit.

Applications for the vacancy, which will be created by the forthcoming retirement of Judge Kathleen Kennedy, must be submitted by no later than 4:00 p.m. on November 28 (three weeks from today). Applications may be submitted electronically to lmarino@illinoiscourts.gov or by regular mail addressed to the Supreme Court of Illinois, Attention: Ms. Laurie Marino, 160 N. LaSalle Street, Suite N2013, Chicago, IL 60601.

According to the press release, "Applicants who have previously applied for appointment to a vacancy must complete and submit a new application."

To be considered, an applicant must be a resident of the 11th Subcircuit.

For further information, or to obtain an application, visit www.illinoiscourts.gov and, from there, follow the instructions on the "Latest News" scroller announcing the Eleventh Subcircuit vacancy.

Tuesday, November 01, 2016

Link to Rhonda Crawford interim suspension order

This broke last night, but I didn't know how or where to find the Order. The Cook County Record had the link in a story by Jonathan Bilyk posted earlier this morning.

The Order apparently does not prevent Crawford from being elected; rather, it says she may not take the oath of office on the first Monday in December if elected (as is likely) a week from today.

On October 21, after the Administrator of the ARDC filed a Petition with the Supreme Court seeking an order suspending Crawford's law license, the Supreme Court entered an order directing Crawford to 'show cause' by October 28 as to why her license should not be immediately suspended. Crawford's response to that 'show cause' order asked for additional time (to November 11) in which to answer the 191-page Petition filed by the ARDC. Among other things, Crawford noted that she had only been served with the ARDC Complaint (that's one of the exhibits to the ARDC Supreme Court Petition) on October 13; one of her principal lawyers, George Collins, died the following day.

Among other things, Crawford stated in her Response to the 'show cause' order, "To address concerns of adverse impact upon the public’s perception of the dignity and integrity of the judiciary, Respondent agrees to not oppose entry of an order that would delay her from assuming office as a circuit court judge until the disciplinary case has been resolved." That's a little different than agreeing to voluntarily forego taking the oath, as it was widely reported.

On the other hand, Crawford said she needed more time to "to appropriately address the issue of whether the Administrator has presented grounds sufficient to warrant that Respondent be stripped of her law license without a hearing."

This is what the Supreme Court said 'no' to yesterday.

In a related Order, also entered yesterday, the Supreme Court granted the ARDC Administrator's motion for leave to amend the Petition against Crawford to include the criminal charges filed against her.