Thursday, September 20, 2018

Justice Theis announces process to fill two countywide and three subcircuit vacancies

Illinois Supreme Court Justice Mary Jane Theis today announced application processes for five Cook County judicial vacancies.

Two are countywide vacancies; applications will also be accepted for vacancies in the 2nd, 6th, and 14th Subcircuits.

The links in the preceding sentence will take you to the press releases announcing the respective vacancies and the specific requirements for each.

All of the announcements state that applications for any of the vacancies must be received by Friday, October 19 at 4:00 p.m. Applications, which are available via this link, may be emailed to lmarino@illinoiscourts.gov or mailed to the Supreme Court of Illinois, Attn: Ms. Laurie Marino, 160 N. LaSalle Street, Suite N2013, Chicago, IL 60601.

Applicants for prior vacancies must complete and submit new applications in order to be considered for any of these vacancies. Persons applying for a subcircuit vacancy must be a resident of that subcircuit.

The application process includes an evaluation by the Alliance of Bar Associations for Judicial Screening, which is made up of 11 bar groups in the Cook County area, and by the Chicago Bar Association.

Persons with current evaluations may submit these with their applications; persons who have not been previously screened, or whose evaluations have 'aged out', will have to complete separate Alliance and CBA evaluation questionnaires and interviews. Further review will be conducted by a special judicial screening committee that Justice Theis established in 2013 and is co-chaired by retired U.S. District Court Judge Wayne R. Andersen and retired Illinois Appellate Court Judge Michael J. Gallagher.

The two countywide vacancies are, or will be, created by the retirement of Judge Sebastian T. Patti and the decision by Judge Carole K. Bellows not to seek retention. The 2nd Subcircuit vacancy is created by the retirement of Judge Alexander White. The 14th Subcircuit vacancy is created by the retirement of Judge Robert Bertucci. The 6th Subcircuit vacancy will open because of Judge Marya Nega's decision not to seek retention. Appointments to each of these vacancies will expire on the first Monday of December 2020.

U.S. District Court accepting applications for two magistrate judge positions

The Northern District of Illinois has announced openings for two Magistrate Judge positions, one to serve in Chicago, the other in Rockford.

The deadline for applications is 4:30 p.m. on Friday, October 12.

Applications can be accessed via this page on the Northern District's website. According to that website, "Consideration will only be given to those who apply through the court's online applicant tracking system and provide a cover letter and resume."

Persons seeking both positions must apply for both vacancies.

Persons who applied for vacancies earlier this year must submit new applications in order to be considered for these new vacancies.

To be eligible to serve as a Magistrate Judge an applicant must
  • be, and have been for at least five years, a member in good standing of the bar of the highest court of a State, the District of Columbia, the Commonwealth of Puerto Rico, or the Virgin Islands of the United States, and have been engaged in the active practice of law for a period of at least five years;
  • be competent to perform all of the duties of the office; be of good moral character; be emotionally stable and mature; be committed to equal justice under the law; be in good health; be patient and courteous; and be capable of deliberation and decisiveness;
  • be less than seventy years of age; and
  • not be related to a judge of the district court.
A Merit Selection Panel composed of attorneys and other members of the community will review all applications and recommend to the judges of the Court a list of the persons whom it considers best qualified.

The Court will make the appointment following a Federal Bureau of Investigation full-field investigation and Internal Revenue Service tax check of the person selected to fill the position. An affirmative action effort will be made to give consideration to all qualified candidates, including women and members of minority groups.

All applications will be kept confidential, except as necessary for the Merit Selection Panel to perform its duties, and all applications will be examined only by members of the Merit Selection Panel and the judges of the District Court.

Monday's meeting of the Advocates to feature presentation by Polish jurist


Bogdan Jedrys, a sitting appellate judge in Poland, will speak at the next meeting of the Advocates Society on Monday, September 24, at 5:00 p.m., at the offices of Hinshaw & Culbertson, 151 N. Franklin, Suite 2500.

Judge Jedrys is expected to speak on the threats to judicial independence in Poland arising from legislation passed by the current Polish government. Marc Santora and Joanna Berendt, in a September 17 article in the New York Times concerning the White House visit of Polish President Andrzej Duda, wrote:
A law forcing Supreme Court judges to retire at 65 — even if they are currently serving their six-year terms — is being challenged before the European Court of Justice; by the European Commission, the bloc’s executive arm; and in a case on behalf of the dismissed judges.

With Polish judges fighting to keep their jobs, it is unclear who is in charge of the court, which judges can sit on which cases, and whether their rulings will later be called into question.

The government’s changes have inspired resistance from the nation’s judges, who have all but boycotted their own posts.

Of about 10,000 qualified judges in the nation, only around 200 judges and other “applicants” have submitted their names to fill dozens of open positions on the Supreme Court. At least 99 cases have had to be postponed because there are simply not enough judges.

Poland’s top Supreme Court justice, Malgorzata Gersdorf, who was targeted by the new law, has refused to retire, and the person named by Mr. Duda as her replacement said he did not consider himself to be the head of the court.

Judges who have publicly condemned the new law have found themselves hauled before disciplinary chambers, denounced in the right-wing media and threatened by party supporters.
This Monday's Advocates meeting is open to members and non-members alike; however, non-members wishing to attend must email Advocates Society President Kristen Kozlowski Lyons at attorneykristen@gmail.com.

Some pictures from Monday's Reception for the 2018 Cook County Retention Judges... and some observations


For a great many Cook County lawyers and judges, Monday night's Bears victory was preceded by attendance at the 2018 Retention Judges Reception at the Chicago Cultural Center.

The room was packed... as is usual for this event... and the guests engaged in the light banter that is customary on such occasions... Hi, howareya! [*squinting to read name tag*] I haven't seen you in forever!... That's technically correct; I've never seen you either....

It was not unpleasant, though the crowded room was uncomfortably warm on a late summer evening.


After a couple of turns around the room, I thought I'd better take a few pictures.



The blogger with a camera knows that no one will pose for a picture without first setting down his or her refreshment.


And that's normal.


But, for the first time at one of these events, my picture-taking efforts met with a different sort of resistance.

I tried to get several people into pictures who were concerned about being photographed. Several refused outright. One judge asked me to not use her name if I ran her picture (I didn't do either). More than one judge cited personal security concerns.

I've seen this before, but not with judges.

Over a dozen years ago my wife and I served on a 100th anniversary committee for our parish. At an early meeting, I foolishly stated that the family directory that the parish had published 15 years before had been very useful (and we'd gotten a nice family portrait out of it, too) and I suggested that a new one might be similarly helpful for newer families.

Well, of course, I barely finished my sentence before the committee charged me and my wife with putting such a directory together. (I think my wife has finally forgiven me.)

Many of our neighbors and fellow parishioners are members of the Chicago Police Department. We had a tough time getting police families into the directory.

Several of the camera-shy cops explained: If someone with evil intent got hold of his or her family portrait, their children might become targets.

Now I didn't think that was particularly likely to happen with a directory that was published on glossy paper, in very limited numbers, and made available only to fellow parishioners. And some of our police neighbors evaluated the risks and came to the same conclusion. But I realized that the concerns that some expressed were genuine, and I respected them.

As I respect the concerns raised Monday. And this is the Internet, where pictures can go everywhere. So I totally understand -- but I lament this latest evidence of the deterioration of our society.

Thursday, September 13, 2018

Uh oh


Well, on the bright side, it's been six weeks since the last outage. That one was referred to as "challenges with [the] Case Management System." This one is an "integration outage."

Is that better... or worse?


------------------------------------------------

UPDATE:

"The integration issue has been resolved." Faster, I think, than the last time, too. Hopefully 'resolved' means you can efile again.....

More judges not on the retention ballot

This gets complicated, but bear with me.

We know who is serving on the Cook County bench at any given time because the list of serving judges is regularly updated on the Illinois Courts website. It's not necessarily 100% accurate 'in real time' (as of this morning, for example, Jessica O'Brien is still on the list, but Judge Alexander White, who retired quite recently, has already been removed) but it's very, very close.

We could determine who is eligible for retention because these would be those still-serving judges elected six years ago, or any multiple of six years ago. While the AOIC maintains such a list, it isn't something those of us among the great unwashed can call up and peruse. From my archives, we could compile such a list, since this blog's records go back to the 2008 election.

But I have never undertaken that effort. Instead, I reported on who actually filed for retention. FWIW published that list in May.

If one could compare the list of eligibles to the list of actuals, we would know for certain that the seats of those not named on both lists would become available by no later than the first Monday of December.

I haven't been able to do that. But, this morning, FWIW received, from a reliable source, a list of six judges eligible for retention, but not seeking it.

These judges (and the units from which they were elected), are:
  • Rodney Hughes Brooks (1st Subcircuit);
  • Raymond Funderburk (Countywide);
  • Deborah J. Gubin (8th Subcircuit);
  • Marvin F. Luckman (9th Subcircuit);
  • Marya Nega (6th Subcircuit); and
  • Carole K. Bellows (Countywide).
Looking back, with the blinding clarity of 20/20 hindsight, you will now note that five of these six jurists were not on the list published in May of those seeking retention. Also, knowing now what to look for, we can see that none of these are on the list of retention judges on the invitation for their September 17 fundraiser (full disclosure: I have sent in my check for a ticket to this event; really full disclosure: I think it will clear).

September 27 fundraiser set for David Studenroth

Supporters of David Studenroth's bid for the Maki vacancy in the 12th Subcircuit have organized a fundraiser for their candidate on Thursday, September 27, from 5:30 to 7:30 p.m. at the Park Ridge Country Club, 636 N. Prospect, Park Ridge.

Tickets for the event are $100 each, but sponsorships are available (Silver - $250, Gold - $500, Platinum - $1,000).

For more information about the event, or to obtain tickets, call Frank DiFranco at (847) 825-7744 or email difrancolaw@aol.com. DiFranco and Judge William O. Maki (Ret.) are the co-chairs of Studenroth campaign.

Wednesday, September 12, 2018

Jessica O'Brien off the November retention ballot

In an order entered today, the Illinois Supreme Court, on its own motion, dismissed as moot the mandamus petition filed to knock Judge Jessica A. O'Brien off the November retention ballot.

According to the court, O'Brien had promised, back in February, to resign if her post-trial motions in her federal criminal case proved unsuccessful. Her motions to overturn her conviction were denied on September 4. The court therefore considers O'Brien to have resigned as of September 4. Moreover, although the Illinois State Board of Elections website does not yet reflect it (and I've been checking), O'Brien officially withdrew her retention candidacy in an email sent to the Secretary of State on September 5 and filed on September 6.

Friday, September 28 fundraiser set for Joel Chupack

The Vault (the former American National Bank vault) on the lower level of 33 N. LaSalle Street is the venue chosen by supporters of 12th Subcircuit candidate Joel Chupack for their "Dash to the Polls" fundraiser on Friday, September 28, from 4:00 to 6:00 p.m.

Tickets for the event, which will be hosted by Mark Karno and Helen Bloch, are $100 each, but sponsorships are available (Circuit - $250, Appellate - $500, Supreme - $1,000).

For more information about the event, or to order tickets, email Sarah at chupackforjudge@gmail.com or call (224) 558-3888.

October 10 fundraiser set for Daniel Patrick Fitzgerald

Supporters of Daniel Patrick Fitzgerald's campaign for the Lawrence vacancy in the far northwest suburban 13th Judicial Subcircuit have announced a "One Month to Go" fundraiser for their candidate on Wednesday, October 10, from 5:30 to 7:30 p.m., at McGonaigal's Pub, 105 S. Cook Street, Barrington. Hors d’oeuvres will be available.

Tickets for the event are $40 per person or $60 per couple. Sponsorships are also available (Registered Voter - $250, Vote by Mail - $500, Early Voting - $1,000, and Victory - $2,500).

For more information about the event, or to order tickets, email Abbey@CorStrategies.com or call (708) 209-6076. Tickets are also available via this link.

Chicago Bar Association announces John Paul Stevens Award recipients

The Chicago Bar Association has named nine "influential attorneys who stand out in their respective areas of practice as recipients of the association's top legal awards," the 2018 John Paul Stevens Awards, according to a press release issued yesterday by the CBA.

Named for former United States Supreme Court Justice (and native Chicagoan) John Paul Stevens, the awards will be presented by the CBA and the Chicago Bar Foundation at a luncheon on Tuesday, September 27 at the Standard Club, 320 S. Plymouth Court.

This year's award recipients are:
  • Laurel Bellows, of the Bellows Law Group, P.C., President of the American Bar Association in 2012-2013 and a former CBA President;
  • Carol A. Brook, the retired Executive Director of the Federal Defender Program;
  • Kevin P. Durkin, a partner at Clifford Law Offices, CBA President in 2006-07 (and General Chairman of the CBA Judicial Evaluation Committee in 1997-1998);
  • John N. Gallo, the Executive Director of LAF (formerly the Legal Assistance Foundation), and, for much of his tenure with Sidley Austin, Trial Counsel for the Illinois Judicial Inquiry Board;
  • Terri L. Mascherin, partner at Jenner & Block, also a former CBA President, and nationally recognized for her pro bono representation of death row inmates and work promoting effective representation of defendants in capital cases;
  • Recently appointed Illinois Supreme Court Justice P. Scott Neville Jr., a former President of the Cook County Bar Association and a co-founder of the Alliance of Bar Associations for Judicial Screening;
  • Illinois Appellate Court Justice Jesse Reyes, a former President of the Illinois Judges Association and President of the Diversity Scholarship Foundation;
  • Illinois Appellate Court Justice Mary K. Rochford, the Chair of the Illinois Supreme Court Commission on Access to Justice; and
  • Tina Tchen, a partner at Buckley Sander, and a former Assistant to President Obama, Executive Director of the White House Council on Women and Girls, and Chief of Staff to First Lady Michelle Obama.
In a written statement, current CBA President Steven M. Elrod said, "The CBA is very proud to join with the Bar Foundation in honoring this distinguished and diverse group of attorneys and jurists.... Much like Justice John Paul Stevens, each of these individuals has a steadfast commitment to the rule of law. They are among the finest in the legal profession in Chicago and we are pleased to honor them for their service to our Bar Association and our community."

For more information about the luncheon, or to order tickets (which are priced at $70 apiece, with tables of 10 going for $700), click here or contact Tamara Drees by phone at (312) 554-2057 or by email at tdrees@chicagobar.org.

Sunday, September 09, 2018

Guest Post: Dr. Klumpp reports on record spending in 2018 judicial primary

by Albert J. Klumpp

After the March primary election I provided FWIW with an analysis of the results of Cook County’s judicial contests. At that time I did not have data on campaign spending by the candidates, since the required quarterly spending reports covering the first and second quarters of the year were not yet due at the state elections office.

Those reports are now on file and I have compiled total spending numbers for all 110 candidates. While I won’t be rerunning the full statistical analysis for some time yet, there was some interest expressed here in seeing the spending numbers, so here is a brief summary:

The candidates spent a total of $7,966,104. The average per candidate of $72,419 sets a new record high for a single year, well ahead of 2014’s $62,605. On a per-vacancy basis the average for each of the 39 vacancies was $204,259; this figure is second only to the 2004 average of $245,688. (In 2004, though, there were only eighteen vacancies, an abnormally low number that resulted in the number of candidates per vacancy being higher than usual. So the comparison is not a good one.)

The 26 countywide candidates spent an average of $79,398, surpassing the previous highest figure (in 2008) by more than ten percent. Analysis has shown that the impact of campaign spending on vote percentages in countywide judicial contests is almost negligible, yet spending by countywide candidates has continued to increase over the years.

The 84 subcircuit candidates spent an average of $70,259, surpassing the previous high (in 2004) likewise by more than ten percent. What stands out most about this figure is that it was not driven by the wealthier and traditionally more competitive subcircuits in the outer and northern suburbs and North Side, but rather reflects unprecented spending elsewhere. For instance:
  • In the 2nd Subcircuit the previous high for total spending was roughly $156,000. This year it exceeded $700,000. In part this was because the numbers of vacancies and candidates--six and thirteen, respectively--were much higher than usual, but even in terms of averages the amount is the highest ever.
  • Candidates in the 5th Subcircuit spent more than $516,000, more than double the previous high.
  • In the 6th Subcircuit, eight candidates pursuing three vacancies spent more than $1 million. This was more than 2½ times the previous high.
The ten highest spending individual candidates overall were:

Candidate Race Campaign Spending
James "Jaime" Shapiro 8th Subc. $491,127
Jack Hagerty Countywide $413,053
Michael B. Barrett 15th Subc. $308,078
Tom Sam Sianis Countywide $240,811
Kent Delgado 6th Subc. $228,353
Oran F. Whiting Countywide $220,667
Robert Harris 5th Subc. $190,859
Susanne Groebner 13th Subc. $185,458
Sean Patrick Kelly 6th Subc. $179,617
Robin Denise Shoffner 8th Subc. $179,285

The Shapiro total is a new record high for a Circuit Court candidate, surpassing the $419,051 spent by Megan Goldish in 2014, and is the twelfth-highest figure for any judicial primary campaign in Cook County since 1980 (where my data set begins).

Finally, some fine print: All of the above figures include in-kind contributions that are equivalent to actual expenditures; they exclude irrelevant items such as post-election parties and charitable donations, ISBE civil fines, and accounting adjustments such as loan repayments that the ISBE requires be classified as expenditures. The intent is to include only those amounts that are spent directly on the effort to attract votes. All pre-2018 figures are adjusted for inflation to allow for direct comparisons.

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Albert J. Klumpp has been a generous and frequent contributor to this blog over the years. A research analyst with a public policy PhD, Klumpp is the author of several scholarly works analyzing judicial elections including, most recently, Alaska’s Judicial Retention Elections: A Comparative Analysis, 34 Alaska Law Review 143-160 (2017). Other works include Judicial Primary Elections in Cook County, Illinois: Fear the Irish Women!, 60 DePaul L. Rev. 821 (2011); "Voter Information and Judicial Retention Elections in Illinois," 94 Ill. B.J. 538 (October 2006); and "Cook County Judicial Elections: Partisanship, Campaign Spending, & Voter Information," CBA Record, January 2007 (p. 34).

Friday, September 07, 2018

September 12 fundraiser set for Judge Sam Betar

Supporters of Judge Samuel J. Betar's 13th Subcircuit candidacy have scheduled a fundraiser for their candidate on Wednesday, September 12, from 5:00 to 8:00 p.m., at the Chicago offices of Polsinelli, 150 N. Riverside Plaza, Suite 3000. Hon. William Haddad (Ret.) is chairing this event; Donna Haddad, Sandra Frantzen, and Anthony Nasharr are event co-chairs.

Tickets for this fundraiser are $125 each, but sponsorships are available ($500 - Bronze, $1,500 - Silver, $2,500 - Gold, $5,000 - Premium).

For more information, or to order tickets, email citizenstoelectjudgesambetar@gmail.com or contact Elizabeth Belcaster at (773) 678-7026. Tickets are also available at this link.

Jewish Judges Association of Illinois Annual Award and Installation Dinner set for November 8

The Jewish Judges Association of Illinois will hold its 16th Annual Award and Installation Dinner on Thursday, November 8, in the Crystal Ballroom of the Hyatt Regency Chicago, 151 East Wacker Drive. The reception will begin at 5:30 p.m. Dinner is scheduled to begin at 6:30 p.m.; dietary laws will be observed.

First District Appellate Court Justice Sheldon A. Harris will receive the Honorable Seymour Simon Justice Award at the event. United States Bankruptcy Court Judge Jack B. Schmetterer will receive the Honorable Illana Diamond Rovner Lifetime Achievement Award. Third District Appellate Court Justice Tom M. Lytton will receive the Honorable Richard J. Elrod Public Service Award.

Tickets for the event are $150 each; tables are available for $1,500. The last date to purchase tickets is November 1. Dinner Co-Chairs are First District Appellate Court Justice Robert E. Gordon, former First District Appellate Court Justice Marvin Leavitt, and Cook County Associate Judge Lauren G. Edidin.

Judge Edidin will be installed as President of the Association at this event. The Jewish Judges Association will also confer Special Recognition Awards on Hon. Carole K. Bellows, retired Cook County Circuit Court judge; Hon. Richard P. Goldenhersh, retired Justice of the Illinois Appellate Court, Fifth District; Hon. Alfred Levinson, retired Cook County Circuit Court judge; Hon. Hy J. Riebman, retired Cook County Circuit Court judge; Hon. John B. Simon, retired Justice of the Illinois Appellate Court, First District; Hon. Leonard Levin, deceased Cook County Circuit Court judge; Hon. Milton Shadur, deceased United States District Court judge; and Hon. Alvin I. Singer, deceased Lake County Circuit Court judge.

To order tickets for the event, call (312) 593-8953.

Guest post: An "open letter" from Judicial Accountability PAC

By printing this "open letter" I mean to take no position or offer any position on the matters expressed. The opinions expressed in this post are those of the authors, who signed this post (see below).

To Whom It May Concern:

We write to urge you to take a stand against a problematic judge that is on the retention ballot in Cook County this November. We write with the understanding that it has been the practice of the Cook County Democratic Party to urge voters to vote yes on all retention judges. This practice has existed for more than four decades. As a result, there has only been one cycle in the last forty years where judges have lost the retention ballot. As Cook County Board President Toni Preckwinkle pointed out last spring, this practice should end because it has resulted in little or no accountability for sitting judges and a less competent and less unbiased judiciary for our communities.

In the spring, our PAC did a statistical analysis of all judges presiding over criminal courts in Cook County. The analysis utilized data published online by Cook County State’s Attorney Kim Foxx. We employed a statistician that looked at numerous metrics, including harshest sentencing on drug possession cases, and racial disparities in sentencing. Since each judge had not sentenced a statistically significant number of white people we found that, no statistician would sign off on any particular racial disparity analysis. Nonetheless we recognized that there was an issue, and our PAC created an internal list of the top ten harshest drug sentencers (an analysis that will be released to the public later this month); the top ten most disparate sentencers. What we found were three judges that were on both top ten lists that also happened to be on the November 6 retention ballot. Simultaneously (and separate from us), Injustice Watch did an analysis of the appellate court reversals of all judges on the retention list, and the top two judges with the most reversals happened to be two of the three from each of our lists.

We then did a deeper dive into those two judges, and one stood out. It turned out that the statistics we uncovered represented real decisions that had a real impact. For instance, in the same month that Judge Mathew Coghlan sentenced a white police officer to two years probation for smashing a woman’s face into a concrete bench which resulted in her needing reconstructive surgery; Coghlan also sentenced a 25-year-old black man to 3 years prison for possessing the equivalent of a marijuana joint in his own front yard (because it happened to be within 1000 feet of a school). Within the same year, Coghlan sentenced an off-duty officer to just 3 years for his drunken vehicular homicide of a 13 year old. During sentencing, Coghlan blamed the 13-year-old for playing outside in the evening.

In addition to being on all three lists above, Coghlan gained notoriety in the mid-2000s for the brevity in which he addressed bond hearings. A 2005 Chicago Sun Times article discussed how Coghlan flew through 113 bond hearings in the course of 50 minutes—managing to make a finding of probable cause and assess factors regarding bond in what came out to of an average of 26 seconds per defendant. This is very troubling, particularly in the era of cash bail reform.

Even more troubling was the allegations made in 2013 and 2014 that Coghlan actively engaged in the framing of two different Latino men from Humboldt Park that were wrongfully convicted by the actions of notorious detective Rey Guevara. After decades of fighting, both men had their convictions overturned in 2016 by an appellate court that found “profoundly alarming acts of misconduct” in the case. After their release from prison, both individuals framed by Guevara and Coghlan filed federal civil rights lawsuits.

In 2017, in response to the lawsuits, Judge Coghlan filed a federal court document where he denied he was even present during the interrogation of a key witness that ultimately recanted against the two framed innocent Latino men. But, this summer, Injustice Watch and the Chicago Sun Times uncovered a 1993 court transcript where it was shown that Coghlan admitted taking the offending statement.

Then, in the spring of this year, Rey Guevara was specifically asked under oath about Coghlan’s role in the framing of these two men and Guevara pled the 5th and refused to answer.

Coghlan was found qualified by all the bar associations when he last ran for retention in 2012, and he was endorsed by the Party. But, the amount of damning evidence against Coghlan that has built up in the last two years should make every bar association and every Democratic Ward Committeeman reconsider. If you are part of a bar association, we are asking you to vote not recommended or not qualified for Judge Coghlan. If you are a Democratic Ward Committeeman we are asking you to vote to have the Party campaign to vote no on Coghlan for retention.

Thank you for your time and consideration on this issue.
Brendan Shiller, Board President

Antonio Romanucci, Board Vice President

Jennifer Bonjean, Board Secretary

Jon Loevy, Board Treasurer

Judge Raymond Figueroa (Ret.)

Dartesia Pitts

Michael Del Galdo

Sam Toia

47th Ward Committeeman Paul Rosenfeld

Lamell McMorris

Steven Hart

Tom Johnson

Clem Balanoff

It's not necessarily bad for a judge to be reversed... but it might be

A few weeks back, Injustice Watch (also linked in the Sidebar here) ran a piece entitled, "Chicago’s harshest judge seeks retention with 34 decisions undone in 6 years."

The linked Injustice Watch article is about Judge Maura Slattery Boyle, a candidate for retention in November.

I don't practice in the criminal courts. I don't know Judge Slattery Boyle. Therefore, this post is about reversals generally, and not about Judge Slattery Boyle or any other individual judge.

No human being likes being told that they've erred. So it should be no surprise that judges don't like getting reversed.

But I would submit that no judge worthy of the robe should ever be afraid of being reversed -- or, at least, no judge should ever take a position on a legal issue (or refuse to take a position) because of a fear of what an appellate court might say.

A reversal in any given case is not a bad thing. Not necessarily.

On the other hand, if a judge is reversed frequently, that might be a bad thing.

A judge's obligation is to "respect and comply with the law" (Supreme Court Rule 62A). A judge is expected to be "faithful to the law and maintain professional competence in it" and to be "unswayed by partisan interests, public clamor, or fear of criticism" (Supreme Court Rule 63A(1)).

In other words, a judge must know the law. And follow it.

It may be, where a judge is reversed more frequently than his or her colleagues, that the judge does not know the law well enough or, worse, chooses not to follow it. That would be a major problem.

In our increasingly fractious society, persons are often forced, or effectively consigned, into opposing camps (those who are not with us are against us). But judges are required to maintain a dispassionate neutrality. Supreme Court Rule 63A(3) obligates judges to be "patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity." And patience and courtesy alone are not enough. A judge must "perform judicial duties without bias or prejudice" and shall not "by words or conduct manifest bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status" (Rule 63A(9)).

A judge who has difficulty maintaining his or her neutrality will wind up being reversed more than his or her colleagues. And deservedly so.

But... it can also be true that some cases really do present more thorny issues than others. Tough cases make for tough choices. Reasonable people may disagree with the choices made -- and, if at least two of the three appellate judges reviewing the decision disagree with the trial court's rulings on the law, the decision will be reversed.

In the present day, with random assignment systems, those cases presenting tough choices should, on average, be more evenly distributed as opposed to the Old Days when "heater" cases were deliberately steered to certain judges. But, if a random assignment system truly is, there can be, on occasion, a glut of tough cases that wind up on a particular judge's calendar (or motion call). Just by chance. And, chances are, that judge's reversal rate will thereafter go up, at least temporarily.

And there is one other fact about reversals that I think should be mentioned.

The Millennials and Gen Z-ers out there wouldn't know about this, of course, but there was a time, years ago, when legal research was conducted with books. Annotated statute books and case law digests. And when those books were opened up to the relevant pages and scanned by the most efficient search engine so far created, the Mark One Eyeball, the careful researcher would frequently discern that, on almost any legal issue, there were (at least) two strands of authority, interwoven like DNA, running through the cases.

The lawyer-researcher could then construct an argument showing how that strand of authority most favorable to his or her position was controlling on the facts of the case at bar -- distinguishing the other strand of cases as irrelevant, immaterial, and/or fattening. Of course, his or her opponent was in a different library, perusing other copies of the same digests, and arriving at the diametrically opposed opinion.

Lexis and Westlaw, bless them, for all their convenience, don't always produce that same realization. The interwoven, competing strand of cases may never be found at all -- or, if happened upon, quickly abandoned and forgotten in pursuit of the cases supporting our position. Come to think of it, in the legal world, this alone would lead to a decrease in civility. In the Old Days, we often knew there was another side to most legal questions; the annotations of those (wrongly decided?) cases were right there on the desk in front of us. Before we saw anything submitted by our opponents.

In any event, then and now, the judge's task in ruling on legal questions is to evaluate these competing arguments, or find another strand that both sides ignored, and reach a solid, defensible legal conclusion. Much depends on how the judge -- and I think this is the term currently in vogue -- 'frames' the issue. If a judge, in the honest exercise of his or her best professional judgment, reaches a conclusion on a legal issue, that judge should not be afraid to voice that opinion and stand by it.

Other judges, appellate judges, in the honest exercise of their best professional judgment, may frame the issue differently, and thereby reach a different conclusion, reversing the lower court decision.

That's not a bad thing. That's how the system is supposed to work.

Unless, of course, the learned trial judge had ruled in my client's favor....

Anyway, the thing to keep in mind when evaluating any trial judge's reversal rate is that the number of reversals is not nearly so important as the reasons for those reversals.

Wednesday, September 05, 2018

Post-trial motions denied in Jessica O'Brien case; sentencing set for October 9

Judge Thomas Durkin's 45-page Memorandum Opinion & Order denying Jessica A. O'Brien's post-trial motions for a judgment of acquittal or, alternatively, for a new trial was entered yesterday. The opinion also denies O'Brien's motion for judgment of acquittal filed at the close of the government’s case, as well as her oral motions for a directed verdict at the close of the evidence and following the jury charge, both of which had been taken under advisement.

If I've done this properly, you can read Judge Durkin's complete opinion here.

According to Jon Seidel's article posted last evening on the Sun-Times website, sentencing for O'Brien has been set for October 9.

The Judicial Inquiry Board has filed a case with the Illinois Courts Commission seeking to suspend O'Brien from her judicial position without pay or for any other relief available under Article 6, Section 15 of the 1970 Illinois Constitution (which may include removal from office). Hearing before the Courts Commission is presently scheduled for September 24.

I am NOT running for mayor

I guess I better get that right out of the way.

Since Mayor Emmanuel's announcement yesterday that he would not seek a third term after all, a host of new candidates have declared themselves... sent out feelers... begun pollling... signaled their interest... the words are different but the meaning is the same: According to this morning's Politico / Illinois Playbook, the dozen or so candidates already in the mayoral race may be joined by Gery Chico, Bill Daley, Arne Duncan, Luis Gutierrez, Susana Mendoza, Maria Pappas, Toni Preckwinkle, Larry Rogers Jr., Michael Sacks, Kurt Summers, Anna Valencia, "and numerous aldermen including Proco 'Joe' Moreno, 1st; Ricardo Munoz, 22nd (who recently announced his retirement from the City Council), Roderick Sawyer, 6th; Tom Tunney, 44th; and Ameya Pawar (who’s not [seeking] re-election for the City Council)."

With so many candidates, a runoff seems insufficient: We need brackets.

What does all this mean for potential 2020 judicial candidates?

Not much... not directly... although the glut of mayoral candidates will soak up a lot of dollars that might have been available for judicial candidates. But there will be some time between the likely April 2019 mayoral runoff and the start of the 2020 primary season: Figure about six weeks. No more than eight. The Democratic Party's "pre-screening" of countywide judicial hopefuls will probably take place some time in June 2019.

Saturday, September 01, 2018

Chicago Federation of Labor makes endorsements in contested judicial races

The Chicago Federation of Labor has endorsed Judge Samuel J. Betar III and former Judge Ketki "Kay" Steffen in their respective 13th Subcircuit races (the O'Donnell and Crane vacancies, respectively). The CFL had not made any endorsements for the March primary in that far northwest suburban subcircuit.

Other judicial candidates in contested races picking up CFL endorsements for the November election are Joel Chupack (candidate for the Maki vacancy in the 12th Subcircuit) and Scott McKenna (candidate for the Zelezinski vacancy in the 15th Subcircuit). The CFL had endorsed a different candidate in that 15th Subcircuit primary race; the CFL made no primary endorsement in the 12th.

There are contests on the November ballot for only five judicial vacancies, three in the 13th Subcircuit, one each in the 12th and 15th. All other vacancies (over 30) are uncontested. In general, the March primary winners now carry CFL endorsements for November, whether or not that candidate was endorsed in the primary. The Chicago Federation of Labor has made no endorsement in the race for the 13th Subcircuit Lawrence vacancy.

Friday, August 17, 2018

Decalogue Society and Arab American Bar Association announce 2018 Building Bridges Awards


The Decalogue Society of Lawyers and Arab American Bar Association of Illinois will co-host the annual Building Bridges Awards on Tuesday, August 28, from 5:30 to 7:30 p.m., in the 11th floor reception area of the DePaul Law School.

This year's honorees are the Iraqi Mutual Aid Society and HIAS Chicago, a program of Jewish Child & Family Services. The theme of this year's event is "Honoring the Dreamers."

The Iraqi Mutual Aid Society (IMAS) is a Chicago-based, secular non-profit, founded in 2009, dedicated to providing long-term support services and building community for immigrants, asylees, and refugees. Although the organization's expertise is in assisting those from Iraq and the Middle East, IMAS doors are open to all immigrants, asylees, and refugees.

The Hebrew Immigrant Aid Society of Chicago (HIAS Chicago) was founded over a century ago to support Eastern European Jewish immigrants. The organization's program has expanded over time to address the needs of various refugee and immigrant groups from around the world, regardless of religion, race or national origin. Today, it operates as a program of Jewish Child & Family Services.

Tickets for the event are $10 each. Kosher and Halal food will be served. To register, visit this page of the Decalogue website.

Lawyers Assistance Program Annual Dinner and Awards Ceremony set for November 1


The Lawyers Assistance Program will hold its annual dinner on Thursday, November 1 at the Union League Club. A reception, beginning at 5:30, will precede the dinner, which is scheduled to begin at 6:30 p.m.

Illinois State Senate President John J. Cullerton will be the keynote speaker at this year's event. Scheduled to be honored at the dinner are this year's award winners:
  • Warren Wolfson Excellence in Education Award - Northern Illinois University College of Law
  • Carl Rolewick Award - Tracy Kepler and Kevin Kelly
  • Michael J. Howlett Jr. Award - Christine Anderson
  • President’s Award - Lamont Walton and Natasha Dorsey
Individual tickets for the dinner are $125 each; tables of 10 are available for $1,250. Sponsorships are also available (Bronze - $500, Silver - $1,000, Gold - $2,500). Tickets are available at this link.

Tuesday, August 14, 2018

Judge Raul Vega named Acting Presiding Judge of Domestic Violence Division

Chief Judge Timothy C. Evans announced yesterday that Judge Raul Vega will become Acting Presiding Judge of the Domestic Violence Division of the Cook County on Circuit Court on September 4.

The current Presiding Judge, Sebastian T. Patti, is leaving the Circuit Court to take up a post as an immigration judge in Los Angeles, according to a press release issued yesterday by Judge Evans's office. (Judge Patti's departure will leave a countywide vacancy to be filled at the 2020 election.)

Judge Vega was elected a circuit judge in 2002; he was most recently retained in 2014.

Vega has served in the Domestic Relations Division since June 2003. He has heard just about every type of domestic relations matter, such as divorces, child-custody disputes and requests for orders of protection, according to Judge Evans's press release.

A 1982 graduate of Loyola Law School, Vega worked as a general practitioner in Chicago, handling civil litigation, including election, real estate, family, bankruptcy, federal taxation, criminal, probate and appellate matters, according to Judge Evans's office. Judge Vega did appear before Democratic slatemakers in 2015, when he was named a second alternate for an Appellate Court vacancy that never opened.

As Presiding Judge, Vega will oversee the judges, administrative support staff and all court operations in the courthouse at 555 W. Harrison St.

Friday, August 03, 2018

Marsalek and Lopez to be honored at the Advocates Society Summer Reception


The Advocates Society of Polish American Lawyers will hold its Summer Reception and Awards Ceremony on Tuesday, August 28, beginning at 5:00 p.m. with a cocktail and appetizer reception at the Cerise Rooftop Bar, 203 North Wabash, 26th Floor.

Cook County Circuit Court Judge Diann K. Marsalek, the Supervising Judge of the Traffic Division, and Associate Judge Mark J. Lopez, of the Domestic Relations Division, will receive awards from the Advocates celebrating their lives, legal careers, and respective contributions to the Polish community.

Tickets for the event are $85 each, if purchased by August 25. Limited tickets may be available at the door, but will cost $100 each. Sponsorship opportunities are available.

For more information about the event, to reserve tickets, or to explore sponsorship opportunities, call Advocates President Kristen Kozlowski Lyons at (773) 610-4175 or email her at attorneykristen@gmail.com.

The Advocates are also co-sponsoring two August events with The Decalogue Society of Lawyers.

First up, on Wednesday, August 8, from 5:30 to 7:30 p.m., is a social at Bar Louie, 333 N. Dearborn. Quoting now from this month's Decalogue News, "We will not rest until we have a relaxing informal social event at a local watering hole with every local bar association. Our last social with Black Women Lawyers' Association was a huge hit with all attendees. * * * Bar Louie will run individual tabs for everyone."

Then, on Thursday, August 16, at noon, the Advocates and the Decalogue Society, in conjunction with the American Association of Jewish Lawyers and Jurists and the Chicago Loop Synagogue, will sponsor a talk by Michael Traison on the status of Poland, Law and the Jewish Community. The event will be held at the Chicago Loop Synagogue, 16 S. Clark Street. Tickets are $15 each and the cost includes lunch from the Sandwich Club. For more information, or to reserve tickets, email loopadmn@chiloopsyn.org .

Wednesday, August 01, 2018

Applications for the next class of Cook County Associate Judges to be taken through August 31

Well, that didn't take long.

The ink is barely dry on the commissions of the latest class of Cook County Associate Judges and already applications are open for the next class.

The above link will take you to the Illinois Courts website where you download an application to which you may affix a 'wet signature' -- which, for those who weren't with us last time, merely means a conventional signature, in ink, as opposed to an "e-signature" which must be affixed to the fillable online application. Persons choosing the fillable online application get, as a bonus, the opportunity to play a game of "beat the clock": Online applications, if not completed sooner, will expire after six hours and, according to the website, "information entered will not be saved."

Associate judge applications are not kept "on file," so (as one person has already asked today) applicants from the last or prior applicant classes must complete a new application in order to be considered.

For online applications, the deadline is August 31 at 11:59 p.m. Paper applications (with 'wet signatures') must be received in the Chicago office of the Administrative Office of the Illinois Courts prior to 5:00 p.m. on that same day, Friday, August 31.

For non-lawyers who may happen across this post, there is nothing nefarious or suspicious about a new class of associate judges opening so soon after the last class was sworn in. This is an automatic process, triggered by the language of Supreme Court Rule 39(b)(1), which must be undertaken "as soon as practicable, but no later than 30 days after the accumulation of five consecutive vacancies for which notice has not been given."

The notice signed today by Cook County Chief Judge Timothy C. Evans to the Administrative Office of the Illinois Courts advises that there are now six vacancies. There will, presumably, be more before the next class is sworn in.

Illinois Judges Foundation Annual Reception set for August 16

The Illinois Judges Foundation, the charitable arm of the Illinois Judges Association, will host its Annual Reception on Thursday, August 16, from 5:00 to 7:00 p.m. at the Kimpton Allegro Hotel, 171 West Randolph Street.

Proceeds from this event support the charitable and educational programs of the Illinois Judges Association, and other charitable initiatives.

New Supreme Court Justice P. Scott Neville, Jr. is among the persons slated to be honored at this reception.

Other honorees are United States District Court Judge Rebecca Pallmeyer, Cook County Circuit; Cook County Circuit Court Judge Sebastian Patti, Presiding Judge of the Domestic Violence Division; and Lake County Associate Judge Luis Berrones.

Tickets are $125 per person and may be obtained at this link online. Sponsorships are available. For more information, email ijf@chicagobar.org or call Christine Athanasoulis at (708) 705-4355.

Peace in the Preserves set for Friday evening


The Puerto Rican Bar Association is among the groups promoting and sponsoring "Peace in the Preserves," billed as a family-friendly event to promote peace and awareness -- the need for which was made apparent by the ugly incident that occurred at Caldwell Woods, on the Northwest Side, a few weeks ago. You've seen the video.

Hosting the event, set for this Friday, August 3, from 5:00 to 8:00 p.m., at the Caldwell Woods Pavilion, 6200 W. Devon, is the Northwest Side Coalition Against Racism & Hate. The Jesse White Tumblers will perform and the linked Coalition Facebook page says that music and other family activities (including face painting) will be provided. Attendees are asked to bring picnic dinners.

No fee will be charged for attendance -- but donations will be solicited for a GoFundMe sponsored by the Puerto Rican Agenda of Chicago for Hurricane Maria relief efforts.

For more information, or for last-minute sponsorship opportunities, email Claudia F. Badillo, the acting PRBA president, at Prba@prbalawil.com.

The wildcat strike is over


Yes, I know there was no strike. The good folks in the Cook County Clerk of the Circuit Court's office did not engage in a job action.

But that's the effect of whatever "challenges" brought Odyssey down yesterday afternoon. (The Tyler Technologies email sounding the 'all clear' was time-stamped 9:44 p.m.)

Look... if this is a one-time hiccup, we'll all be fine. If this is a portent of things to come, however....

Transitions are tough. We are in a transition. But transitions are, by definition, transitory. We will come through this to the other side eventually. What will be there for us when we arrive? A bleak and desolate wasteland... or broad sunlit uplands?

This story will most definitely be continued....

Tuesday, July 31, 2018

Ooops. Cook County efiling system experiencing "challenges" this afternoon


What were they before?

Anyway, apparently the system has crashed entirely now.

Anyone in Cook County with a "hard" (jurisdictional) deadline today may wish to become familiar with Supreme Court Rules 9(d) and 10(d) forthwith.

Challenges... such an innocent-sounding word....

Saturday, July 28, 2018

August 16 fundraiser for Daniel Patrick Fitzgerald

Supporters of Daniel Patrick Fitzgerald's 13th Subcircuit judicial bid are holding a fundraiser for their candidate on Thursday, August 16, from 6:00 to 8:00 p.m., at Mac's on Slade, 117 W. Slade, Palatine. Tickets for the event are $40 each ("Precinct Captains" admitted for $25). Tunes, libations, and appetizers are included. Sponsorships are available (Jazz - $250, Blues - $500, Rock - $1,000).

Live music will continue late into the night at Mac's, even after the fundraiser concludes.

For more information about the event, or to reserve tickets, email Abbey Corbett at abbey@corstrategies.com or call (708) 209-6076. Tickets may also be obtained from this web page.

Fitzgerald is the Republican nominee for the Lawrence vacancy in the far northwest suburban 13th Subcircuit.

ABA seeks nominations for annual Web 100


You're obviously a connoisseur of fine legal blogging, or you wouldn't be here. Unless you got here by accident. Or you're a Russian hacker or provocateur. (You know, I don't like where this is heading....)

Anyway, the American Bar Association is once again soliciting nominations for what its Web 100 award. This used to be called the "Blawg 100," but the ABA broadened the title a few years back so it could include legal podcasts and law-based Twitter feeds and, this year, "all online legal forums—including apps, subscription services and other digital tools."

The ABA's explanation of what it wants to include in this year's Web 100 can be found at this link. No, I don't know what the ABA means by apps, subscription services or other digital tools. If you do, however, you can nominate one by filling out this form. You can even nominate a more traditional blog (*hint, hint*) The deadline for submissions is August 7 at 11:59 p.m.

To be on the safe side, don't start uploading your submission at 11:58 p.m. on the 7th. See, Peraino v. County of Winnebago, 2018 IL App (2d) 170368. (In comedy writing, this is called a "callback.")

The Web 100 winners will be published in the December issue of the ABA Journal. A complete list of legal blogs can be found at the ABA Blawg Directory. The ABA Blawg Hall of Fame can be found here. For What It's Worth may be found in only one of these....

Friday, July 27, 2018

Illinois must reject efiling 'rejections'

Here in Cook County we are adrift this month on Odyssey's wine-dark sea. Those of us who have braved the new efiling system have experienced wildly divergent results. I had one filing take three attempts over six days, another done in one shot -- but it still took 55 hours -- and another that was turned around in just under 30 minutes.

That's some wild divergence. And, from Facebook and the ISBA online discussion groups, I know my experiences are not unique.

But -- assuming progress is being made in this department -- cutting down on the extreme turnaround times will not alone be sufficient to make efiling useful, or even palatable, to the bench and bar.

We must decisively reject any notion that efiling gives our Clerks of Court new powers to "reject" efilings.

The Illinois Clerk of Courts Act, 705 ILCS 105/0.01 et seq., specifies, in great detail, the duties and responsibilities of court clerks and the fees they may charge.

And it is clear that the General Assembly has made the Circuit Clerks into more than mere warehousemen. In addition to receiving and keeping records -- the core historic function of a Clerk of the Circuit Court -- the legislature has made the clerks responsible for the creation of various sorts of records, specifying, down to the bindings, what records to create and how these must be kept.

Nowhere in the Clerk of Courts Act, however, does the legislature make a clerk into a curator of everyday court records: They do not have the power to decide for themselves what to keep and what to reject.

And efiling changes nothing in this regard.

The creation of the court record is the responsibility of judges and lawyers (and unrepresented parties). The court clerk merely keeps that record, and stores it, making it available for further use by the trial court or for appellate review.

It is true that the most recent amendment to Illinois Supreme Court Rule 131 does refer to the power of a clerk to "reject" a document submitted for filing.

As of January 1, 2018, Supreme Court Rule 131 was renamed "Form of Documents" (from "Form of Papers"). The rule now provides:
(a) Legibility. All documents for filing and service shall be legibly written, typewritten, printed, or otherwise prepared. The clerk may reject any documents which do not conform to this rule.

(b) Titles. All documents shall be entitled in the court and cause, and the plaintiff’s name shall be placed first.

(c) Multiple Parties. In cases in which there are two or more plaintiffs or two or more defendants, it is sufficient in entitling documents, except a summons, to name the first-named plaintiff and the first-named defendant with the usual indication of other parties, provided there be added the official number of the cause.

(d) Name, Address, Telephone Number, and E-mail Address.
(1) Attorneys. All documents filed or served in any cause by an attorney upon another party shall bear the attorney’s name, business address, e-mail address, and telephone number. The attorney must designate a primary e-mail address and may designate no more than two secondary e-mail addresses.

(2) Unrepresented Parties. All documents filed or served in any cause by an unrepresented party upon another party shall bear the unrepresented party’s mailing address and telephone number. Additionally, an unrepresented party may designate a single e-mail address to which service may be directed under Rule 11. If an unrepresented party does not designate an e-mail address, then service upon and by that party must be made by a method specified in Rule 11 other than e-mail transmission.
According to the Supreme Court Rules, a circuit clerk may only "reject" a document which is illegible or otherwise fails to comply with the few specific requirements of Supreme Court Rule 131. And the clerk doesn't even have to do that; he or she "may" reject a non-conforming document.

Note, too, that attorneys are required to provide their name, address, telephone number and an email address on every document. No local attorney ID number is required. Therefore, no clerk has the power to reject a document because a local attorney ID number is omitted.

Yet, this was one of the bases on which the petitioner's notice of appeal was "rejected" by the Clerk of the Circuit Court of DuPage County in In re Marriage of Bordyn, 2018 IL App (2d) 180017-U (discussed more in this post).

The other asserted basis for "rejection" in Bordyn was that the notice of appeal and notice of filing of the notice of appeal were submitted as one document -- an "error" that Presiding Justice Donald C. Hudson noted, 2018 IL App (2d) 180017-U, ¶14, would probably have been rectified, in those carefree, innocent days prior to efiling, simply by pulling out the staple from the offending document and re-stapling it as two documents.

The Bordyn court agreed that the otherwise timely-filed notice of appeal was properly rejected because, under paragraph 3 of the Illinois Supreme Court's Electronic Filing Standards and Principles (as amended September 16, 2014), "Any electronic document or record submitted to the clerk of the court for filing shall be deemed filed if not rejected by the clerk." And paragraph 9(d), also relied upon, provides that, "Bulk filings of multiple cases or multiple documents combined into one PDF document... shall not be accepted." (2018 IL App (2d) 180017-U, ¶7.)

Standard 9(d) was incompletely quoted in Bordyn. The word "bulk" was omitted. Moreover, standard 9(d) further provided, "Documents with different civil or criminal case numbers must be filed individually in separate transactions." Well, of course! In the days before efiling, no attorney would hand over an undifferentiated mass of papers for the unrelated Smith, Jones, White, and Green cases and tell the counter clerk to figure it out for him- or herself. Nor would an attorney glob together her appearance, answer, and initial discovery requests all as one document. But all the attorney did in Bordyn was attempt to file his notice of appeal and proof of service of that notice as a single document.

Further, these 2014 "standards" generally refer to the voluntary efiling regime that the Illinois Supreme Court was then trying to encourage. These standards were referred to in the introductory paragraphs of the January 22, 2016 Order adopting a timetable for mandatory efiling across the state, but they were not adopted as rules. Rather, paragraph 9 of that Order provided, "The Supreme Court will adopt rules governing e-filing and e-service in accordance with the mandate schedule in this Order." Nor were these 2014 standards adopted as rules in the May 30, 2017 amendment to the mandatory efiling Order."

And, besides, nothing in these standards creates or confers any power on a clerk to reject a document; it merely states the obvious: that which is not rejected is accepted.

The Bordyn court also refers (2018 IL App (2) 180017-U, ¶7) paragraphs 7(d) and (f) of the Supreme Court's Electronic Filing Procedures and User Manual. But, of course, this is the manual for filing documents in the Supreme Court, not in DuPage County.

But let's look at the cited sections inasmuch as these may serve as templates for rules that may be adopted elsewhere. Section 7(d) provides, "An e-filed document submitted to the Clerk for filing shall be deemed filed upon review and acceptance by the Clerk. The filed document shall be endorsed with the clerk's electronic file mark setting forth, at a minimum, the identification of the Court, the Clerk, the date and the time of filing."

That provision gives no specific power to the Clerk of the Supreme Court; the objective evaluation that the Supreme Court Clerk may properly perform for, say, briefs submitted for filing in that court (e.g.left margins of 1.5", font sizes, brief cover colors, word counts) are already specified elsewhere in the Illinois Supreme Court Rules. Rather, the paragraph merely describes what consequences follow for a document that fails to conform to these objective filing requirements that the court -- not the clerk -- has set forth.

Paragraph 7(f) provides, "In the event the Clerk rejects a submitted document, the document will not be filed and the registered user will receive an electronic notification of the reason(s) for the rejection."

This provision gives no power to the Supreme Court Clerk to reject documents for any reason it wants; rather, it requires the Clerk, in the event she feels compelled to reject a document, to specify the reason -- and it is assumed, or should be, that the reason specified will be one specifically authorized by Supreme Court rule.

Now, I understand that one should not read too much into a Rule 23 Order like Bordyn. It will never be cited by any reviewing court addressing an efiling issue.

But it will have been read. As long as the case pops up in Lexis or Westlaw, at least until a body of published case law emerges, every trial or appellate court judge faced with an efiling issue, and all of their law clerks, will look at Bordyn.

And if one appellate panel was not inclined to critically examine the limitations placed on the circuit clerk's powers to "reject" documents submitted for efiling, others may be as well -- unless the bench and bar get together on this and make abundantly clear that efiling creates no new powers for circuit clerks. Circuit Clerks have limited powers to reject any proposed filings; specifically, they have only those powers granted by statute and by the Supreme Court Rules. We must reject efiling rejections.

Saturday, July 21, 2018

An efiling nightmare -- but with a happy ending

I left you yesterday with a tease for a "doozy" of an efiling story.

This particular nightmare scenario came to me courtesy of long-time colleague Orlando Velazquez, an experienced bankruptcy practitioner, who recently set up a solo practice in Warrenville.

Velazquez had a new client, a defendant in a collection case, who came to him just before the deadline for filing a responsive pleading. He had a substantive legal question to kick around, and we did, and I gave him my free advice (worth every penny he paid for it, I must say). (For the benefit of non-lawyers or lawyers in big firms or government settings, this is pretty common among solos. We pick each other's brains; sometimes it helps just to articulate an issue to a colleague. And Orlando has never given me a wrong answer to a bankruptcy question; sadly, however, there have been instances when I didn't immediately know the right questions to ask....)

Anyway, the substantive question addressed, we turned to the problem of efiling into the First Municipal District. He'd signed onto Odyssey, reaching a screen that looked something like this:


He'd entered the case number -- but Odyssey answered "No Record Found."

Well, here on the lower end of the legal food chain, where the clients aren't Fortune 100 general counsels, sometimes clients provide inaccurate information about docket numbers. An experienced attorney like my colleague Orlando would not be discouraged by this. Like the Chuck Yeager-imitating pilots in The Right Stuff, when A doesn't work, one just calmly moves on to try B. In this case, since his client had a fairly distinctive surname, Velazquez figured he'd search by party name. He moved to a screen that looked like this:


The grayed-out Search button turned blue as soon as the first and last names were entered, and Velazquez clicked...

...

...

... and got a "No Record Found."

At this point, even a pilot with the rightest stuff would start glancing at the eject button.

How does one file into a case that Odyssey says doesn't exist?

The Cook County Clerk of the Circuit Court's former electronic docket is still operational. I looked up the case using the number Velazquez's client had supplied -- and, sure enough, the case was there. It just wasn't in Odyssey. Not that we could find.

We discussed possible plans of action, but Orlando needed to get to work on the responsive pleading and I had things to do myself.

But I followed up yesterday afternoon. (I'd promised to write this post, after all.)

"Did you get that pleading on file?"

"I got it submitted," Velazquez said.

"How?" I asked. "Did you have to go downtown and ask in person?"

"No," Velazquez replied. "I called Texas."

Odyssey is operated by Tyler Technologies, a Texas-based company.

According to Velazquez, the problem was that he had entered the actual case number on the case number search screen.

That was a mistake.

In Law Division cases one must include the L as part of the case number in order to pull up a case in Odyssey. But in First Municipal ("Civil" in the nomenclature of the Cook County Clerk of the Circuit Court), one must not include the "M1" as part of the docket number -- one must include the extra "1" but not the "M."

Well, that makes sense.

Not.

But it was an answer, at least, and the case really was there. And Velazquez had a place to submit his filing.

So why didn't the Party Name search bring the case information up?

Well, said Velazquez, the folks in Texas told him that the Clerk of the Circuit Court has disabled the Party Name search. The feature is still there -- still on the screen -- and the search looks like it's running -- but it's been disabled. And it doesn't tell you that.

So we have a happy ending to one efiling nightmare at least -- and a tip about how to avoid this one pitfall.

We're going to need to share like this to get through this transition to the brave new (and scary) world of Cook County efiling.

Friday, July 20, 2018

The Cook County efiling system is not just slow and inconvenient, it is downright scary... a review, continued

We have this terrible horrible no good very bad efiling system in Cook County -- and it is downright dangerous for us practitioners.

Yesterday I left off with an assertion that the case law on efiling that has so far come down should be terrifying for those of us practicing in Cook County. There are two cases of particular import, both from the Second District, one published -- and the other decided under Rule 23. (In a blog a lawyer can cite a Rule 23 Order. And I intend to.)

The published case is Peraino v. County of Winnebago, 2018 IL App (2d) 170368.

Summary judgment was entered against Plaintiff in a personal injury case on December 2. His motion to reconsider or a notice of appeal was due on January 3. Plaintiff's counsel chose to file a motion to reconsider. But, with one thing or another, including the attorney's illness and deadlines in other cases, the motion wasn't ready to be filed until 11:58 p.m. on January 3. And then the attorney's assistant had difficulty uploading the exhibits, so the motion wasn't file-stamped until 12:04 a.m. on January 4.

Plaintiff's counsel next filed a motion on January 5, this one seeking to have his motion to reconsider filed nunc pro tunc as of January 3. This motion was briefed in the trial court, the trial court ultimately deciding to deny the motion. Plaintiff appealed.

And the Appellate Court held that the trial court was wrong to deny the motion for leave to file nunc pro tunc -- but that did not help the plaintiff any.

No, the Appellate Court determined that it did not have jurisdiction to hear the appeal in the first place, since the trial court lost jurisdiction over the case at the stroke of midnight on January 4.

Moreover, the late-filed motion was not a proper motion for nunc pro tunc relief. The Appellate Court explained (2018 IL App (2d) 170368, ¶16) (internal citations omitted):
[I]f there is proper evidence of a clerical error, the court may use a nunc pro tunc order at any time to correct the mistake.... Stated differently, nunc pro tunc orders incorporate into the record judicial actions taken by the court that were inadvertently omitted due to a clerical error.... However, such a correction must be based on a note, memorandum, or paper remaining in the court record, and it cannot rest on a recollection of an individual or on a new affidavit or testimony.... Here, plaintiff did not seek to correct a clerical error in the trial court's judgment, and the evidence he sought to rely on surrounding the filing date of his motion to reconsider came from outside of the established court record. Accordingly, plaintiff's January 5, 2017, motion could not be resolved on a nunc pro tunc basis.
Nor did the doctrine of revestment apply (2018 IL App (2d) 170368, ¶23): "The revestment doctrine causes the trial court to regain jurisdiction of a case even after 30 days have passed following the entry of a final judgment if both parties actively participate, without objection, in proceedings that are inconsistent with the merits of the prior judgment." However, where "a party opposes setting aside the prior judgment, jurisdiction will not be revested, even if the party does not raise a timeliness objection." Here, because Winnebago County opposed the nunc pro tunc motion, "the parties' actions did not revest the trial court with jurisdiction."

"We acknowledge," the Peraino court concluded, "that the outcome in this case might appear harsh, as plaintiff has lost both his chance to have the trial court reconsider its grant of summary judgment in favor of the County and his chance to have this court review that ruling. However, plaintiff's attorney had 30 days in which to file a motion to reconsider and could even have obtained an extension during those 30 days. He instead waited until less than two minutes before the deadline to attempt to electronically file the motion and unfortunately was unable to upload the motion within that time. As that deadline was jurisdictional, the trial court lacked authority to consider the untimely motion to reconsider and plaintiff's subsequent request to backdate that motion. Plaintiff's notice of appeal was correspondingly untimely, and we lack jurisdiction to consider the merits of this case. (2018 IL App (2d) 170368, ¶24).

So, sure, you say, Peraino isn't that scary. You'd never wait until two minutes before midnight to begin efiling a motion to protect a hard and fast jurisdictional deadline. And, besides, what kind of a person keeps staff working at the office at 11:58 p.m., especially during the holiday season? Karma jumped up and bit that lawyer, but that's not a reason to fear efiling, even into a slow and unpredictable efiling system such as we appear to have in Cook County.

To which I respond, please see In re Marriage of Bordyn, 2018 IL App (2d) 180017-U.

Bordyn concerned a notice of appeal, not a motion to reconsider. And the petitioner didn't wait until nearly the stroke of midnight before making his attempted filing.

No, in Bordyn, the petitioner submitted his notice of appeal for efiling at 2:37 p.m. on the afternoon of the 30th day -- receiving confirmation that the DuPage County Circuit Clerk's office had received the papers with that timely time stamp thereon. However, next morning, at 9:40 a.m., the Clerk rejected the filing. Why? Because the notice of appeal and notice of filing of the notice of appeal were submitted as one document instead of two documents -- the clerk thought they should be filed separately -- and the filing contained counsel's ARDC number instead of his DuPage County attorney ID number. (2018 IL App (2d) 180017-U, ¶¶3-4.)

Petitioner immediately corrected these "errors" and resubmitted the filing -- but now the notice of appeal was file stamped on the 31st day, not the 30th (2018 IL App (2d) 180017-U, ¶4.)

Are you scared yet? You should be. Respondent seized the opportunity and moved to dismiss the appeal as untimely. And the Appellate Court granted the motion on March 1, probably as a matter of course. It presumably did not take a full appellate panel to consult a calendar and determine that January 5 was more than 30 days after December 4.

The Rule 23 Order here under discussion arises prom Petitioner's motion to vacate that order -- which the Appellate Court denied.

After reviewing the language of the Supreme Court's efiling order, including language specifying that "multiple documents combined into one PDF document shall not be accepted (2018 IL App (2d) 180017-U, ¶7), the court acknowledged (2018 IL App (2d) 180017-U, ¶8), "We recognize that this result is harsh, and we are not without empathy for petitioner's circumstances. His arguments hold emotional appeal. Indeed, there appear to be no deadlines with which the clerk's office must comply in the process of accepting or rejecting submitted jurisdictional documents. Here, (unlike the plaintiff in Peraino), petitioner did not submit his documents at the proverbial '11th hour,' resulting in receipt on day 31. Clearly, the documents were received on day 30, early-to-mid afternoon. However, petitioner did not receive from the clerk's office a rejection until the next day, a response time that had jurisdictional implications."

The Appellate Court was not blind to the consequences of its reasoning (2018 IL App (2d) 180017-U, ¶8): "One might imagine scenarios wherein a litigant submits his or her documents even earlier than day 30, but a combination of weekends, court holidays, or even a busy or short-staffed clerk's office nevertheless operate to delay a rejection notice of rejection until after the jurisdictional period has expired. Here, petitioner was not alerted to his mistake until 18 hours after his submission was received by the clerk, and he could not timely correct the basis for the rejection and preserve his jurisdiction. While petitioner's suggestion—that we should treat at least the jurisdictional portion of his submission (the notice of appeal) as filed when it was received into the custody of the clerk's office—is tempting, we have no authority to do so. It is simply not for this court to make exceptions to jurisdictional requirements, re-write supreme court rules, or create new rules in this situation."

Besides, the Appellate Court suggested, petitioner was not entirely without recourse. He might have filed a motion under Supreme Court Rule 303(d) for the late filing of a notice of appeal. But such a motion would have been due within 30 days of January 4... and even if petitioner's motion to vacate the March 1 dismissal was deemed a 303(d) motion, it would have been late. (2018 IL App (2d) 180017-U, ¶9.)

Rule 303(d) is something that we all need to burn into our memory banks at this point -- but, in Bordyn, I could not help but notice that the court did not mention when respondent filed her motion to dismiss the appeal -- something that would have alerted petitioner to the mortal peril threatening his appeal. I don't know, of course, one way or the other, but if you were to tell me that the motion to dismiss wasn't filed until mid-February I wouldn't be at all surprised.

Presiding Justice Donald C. Hudson filed a separate concurrence in the Bordyn case. He was "compelled to concur in the majority's decision" primarily because petitioner didn't timely invoke Rule 303(d). But, he said, he wanted to write separately to "highlight the problematic implications this decision portends." (2018 IL App (2d) 180017-U, ¶13.)

Justice Hudson observed, 2018 IL App (2d) 180017-U, ¶14, emphasis mine, "Like most technological innovations, e-filing was supposed to make things easier and more efficient. Yet in this case the opposite seems to have occurred. Before e-filing, had petitioner submitted two documents that were improperly stapled together, the clerk would likely have simply removed the staple and filed the documents."

Perhaps, Justice Hudson continued, 2018 IL App (2d) 180017-U, ¶15, "It might be advisable to clarify the scope of the clerk's power of rejection. Perhaps, the filing date of a document that is rejected under the circumstances that exist in this case and then correctly resubmitted should automatically relate back to the date of its original submission."

That strikes me as a reasonable place to start.

It would be far better, however, to make it clear that Clerks of the Circuit Court do not have the power to "reject" documents submitted for filing, particularly documents submitted by attorneys, who are, after all, subject to Rule 137 sanction if they submit wholly improper pleadings. Otherwise, we are forcing our clerks to assume evaluative roles, not just engaging in the unauthorized practice of law, but, indeed, exercising judicial powers.

Even in DuPage County, where efiling has been the norm for some time now, and appears to be working fairly well, there will be more cases like Bordyn, Justice Hudson warned.

And here in the County of Cook, with our miserable system, we are heading over a cliff.

The Supreme Court will need to reconsider the details of its efiling orders -- and, please, do so soon.

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Postscript: In yesterday's post I wrote about how long it took to file a lengthy motion with voluminous exhibits and the various problems I encountered along the way. And although six days seems unconscionably long, it was not surprising that it that took a significant amount of time to get such a long, complicated document like that on file. So... why should I complain? That could have been merely a special case.

However, this past Tuesday morning, I filed a much simpler notice regarding the filing of a hearing transcript. It took until Thursday evening at 5:05 p.m. to get an acceptance back on that, much simpler document -- almost 55 hours. That can not be acceptable to anyone... can it? But my efiling problems pale compared to those presented by a colleague of mine. I'll report on his issue tomorrow. And it's a doozy.