Monday, January 25, 2021

Who Sits Where -- A Way Too Early Look at 2022

Updated January 27, 2021

The latest information that I have is that there are currently 13 circuit judge vacancies. The following list, now updated, identifies 13 vacancies.

After this post first appeared, many readers left comments about one of the vacancies that I did not initially include.

Actually, the reason that I refrained from including the Robert E. Gordon vacancy in the 8th Subcircuit was that I was unsure whether Justice Gordon would be able to return to the Circuit Court, under the terms of the order appointing him to the Appellate Court vacancy of Justice Shelvin Louise Marie Hall, if his election bid should prove unsuccessful. Some prior appointees have had that 'fallback position.' Yesterday, however, a Supreme Court spokesperson confirmed to FWIW that Justice Gordon's new appointment to the Appellate Court removes him from the Circuit Court roster.

Where a vacancy has been filled by an interim Supreme Court appointment, I have provided the identity of the appointee. If history is any guide, there will be several more vacancies opening up in the months to come. I can and will update as additional information becomes available.

As always, all errors of omission or commission in this list are mine alone and I am grateful for additions and corrections provided.

Appellate Court Vacancy

Vacancy of the Hon. Shelvin Louise Marie Hall -- Robert E. Gordon

Countywide Circuit Court Vacancies

Vacancy of the Hon. Diane Gordon Cannon -- Sanjay T. Tailor
Vacancy of the Hon. Michael B. Hyman -- Unfilled
Vacancy of the Hon. Kathleen M. McGury -- Cara Lefevour Smith
Vacancy of the Hon. Sharon M. Sullivan -- Unfilled

Subcircuit Vacancies

1st Subcircuit
Vacancy of the Hon. Sharon O. Johnson -- Unfilled

4th Subcircuit
Vacancy of the Hon. Patrick T. Rogers -- Unfilled

5th Subcircuit
Vacancy of the Hon. Jackie Marie Portman-Brown -- Unfilled

6th Subcircuit
Vacancy of the Hon. Mauricio Araujo -- Unfilled

7th Subcircuit
Vacancy of the Hon. Patricia Martin -- Unfilled

8th Subcircuit
Vacancy of the Hon. Robert E. Gordon -- Unfilled
Vacancy of the Hon. Thomas J. Lipscomb -- Unfilled

11th Subcircuit
Vacancy of the Hon. Dennis M. McGuire -- Unfilled

14th Subcircuit
Vacancy of the Hon. James R. Brown -- Unfilled

Wednesday, January 20, 2021

Three more judges, several more employees of the Chief Judge's Office test positive for COVID-19

A judge who works at the Criminal Courthouse, another who works in the Domestic Violence Courthouse, and a third, assigned to the Daley Center, have all tested positive for COVID-19, according to recent announcements made by the Chief Judge's Office.

The judge assigned to work at the Daley Center had not been "in the workplace since September," according to the Chief Judge's Office press release this morning.

A total of 21 judges (out of about 400) have now tested positive for COVID-19, according to the Chief Judge's Office. In addition, 259 employees of the Chief Judge's Office have also reported contracting COVID-19.

Most recently, according to the Chief Judge's Office, positive tests have been reported by an employee in the Office of Interpreter Services at the Criminal Courthouse Administration Building, and two employees in the Adult Probation Department, one in Bridgview and the other at the Criminal Courthouse Administration Building. Two Adult Probation Officers working at the Skokie Courthouse, an employee at the Bridgeview Courthouse, and an employee working at the Juvenile Temporary Detention Center, have also tested positive for COVID-19, according to recent announcements from the Chief Judge's Office.

Monday, January 18, 2021

Illinois adopts prejudgment interest in tort cases: Part 2 -- a look at the statutory language

For Part 1 of this article, scroll down or click here.

A Google search Friday revealed that, according to the FDIC, as of August 27, 2020, the national average for interest paid on savings accounts is 0.05% -- higher for online banks, perhaps, but lower at traditional brick and mortar banks. So 9% would be better -- 180 times better than the national average.

The interest rates on most judgments in Illinois has long been 9% per annum (6% on judgments against governmental entities). Judgments, when and if collectible, are a great investment. The key words here, however, as so many of us have learned to our great sorrow, are "when and if collectible."

The high post-judgment interest rate is the reason why appeal bonds are typically set at 150% of the judgment amount. (Illinois Supreme Court Rule 305(a) provides, in pertinent part, "The bond or other form of security ordinarily shall be in an amount sufficient to cover the amount of the judgment and costs plus interest reasonably anticipated to accrue during the pendency of the appeal.")

HB3360 was actually the second change made by the 101st General Assembly to §2-1303 of the Code of Civil Procedure. The first came in P.A. 101-168, effective January 1, 2020, which added a subsection (b) to §2-1303. Widely touted as a pro-consumer enactment, P.A. 101-168 lowered the interest rate, to 5%, for judgments on "consumer debt," such as credit card defaults. And it passed just in time for the destruction of the economy, too. But so many judgments of this kind fall into the not collectible category that the lowered interest rate (still, as you presumably noticed, 100 times the national average for savings acounts) was largely symbolic.

The changes made to §2-1303 this week add new sections (c) through (f). Here is the new language:

 (c)  In all actions brought to recover damages for personal injury or wrongful death resulting from or occasioned by the conduct of any other person or entity, whether by negligence, willful and wanton misconduct, intentional conduct, or strict liability of the other person or entity, the plaintiff shall recover prejudgment interest on all damages set forth in the judgment. Prejudgment interest shall begin to accrue on the date the defendant has notice of the injury from the incident itself or a written notice. In entering judgment for the plaintiff in the action, the court shall add to the amount of the judgment interest on the amount calculated at the rate of 9% per annum.

 (d)  Notwithstanding any other provision of law, a local public entity is not liable to pay prejudgment interest in an action brought directly or vicariously against it by the injured party.

 (e)  For any personal injury or wrongful death occurring before the effective date of this amendatory Act of the 101st General Assembly, the prejudgment interest shall begin to accrue on the later of the effective date of this amendatory Act of the 101st General Assembly or the date the alleged tortfeasor has notice of the injury.

 (f)  The trial court may, in its discretion, apportion any amount of prejudgment interest between the plaintiff and any agency or department of the State. In apportioning prejudgment interest as provided in this Section, the court shall consider, among other factors it deems relevant, the plaintiff's hardship from the time of injury to the date of judgment and the effort required to obtain the judgment.

Note that local governments are exempt from prejudgment interest under new §2-1303(d).

And while prejudment interest will start accruing in all pending Illinois tort cases just as soon as the Governor signs the bill (and the objections of the Illinois Insurance Association notwithstanding, I think the Governor's approval will be swiftly forthcoming) prejudgment interest is not retroactice. It begins to accrue from and after the date that this bill becomes law. A paragraph or two about the amount of prejudgment interest owed will be added to every demand letter written from here on out.

But will prejudgment interest make a real difference in the actual amounts paid by insurers in tort cases? For Illinois PI attorneys, the fact that damages in their cases will soon begin 'earning' interest may ameliorate, at least to some extent, their frustration at being unable to get meaningful jury trial dates so long as this Never Ending Pandemic persists. It's not because plaintiffs' lawyers are all necessarily panting to try cases. Non-lawyers may be surprised to learn that most civil cases are settled or otherwise disposed of without trial.

In fact, I was taught that a lawyer who tries a case has already lost, even if he or she wins a verdict. Trials may be fun (I have usually found this to be true, at least once a trial finally gets underway, after all the last-minute motions and posturing) but they are all-consuming. The lawyer in a trial is not settling other cases, or signing up new ones. And I know it is an article of faith among the plaintiffs' bar that insurers generally try to stall every case until prospective jurors are herded into the courtroom, but that's not been my experience: While there are well-known and infamous exceptions, in 40+ years at the bar, many of them representing persons and business entities on behalf of insurance companies, I have found that most insurance companies take a dim view of settling cases at the 11th hour. Defense costs soar during the last few weeks before trial. And I have heard more than one adjuster berate defense counsel for advocating a last-minute settlement, accusing counsel of milking every last tenth-of-an-hour out of a file before recommending settlement. Plaintiffs' lawyers are not wrong when they assert that insurers try and maximize profits -- insurance companies are not charitable institutions -- but most insurers do this by trying to identify which cases should be settled at the earliest possible date. Otherwise they pay defense costs and the cost of settlement.

Admittedly, the suspension of trials changes has changed the normal calculus -- open-ended delay is a fact of life at present and, until now, there has been no adverse consequence to defendants and their insurers arising from same. Moreover, the setting of a case on a date certain for trial is necessary for some insurers to more seriously evaluate their exposure... and reach for their checkbooks (remember that defense costs soar in the weeks and months before trial). So, in the short term, probably, prejudgment interest will be a boon to the plaintiffs' bar.

But long-term? Though prejudgment interest in tort cases has long been an objective of the Illinois Trial Lawyers Association, I am not certain that the prospect of prejudgment interest will cause most carriers to actually put more dollars on their files.

I can think of two categories of tort cases in which the new amendments to §2-1303 would potentially increase settlements or judgments, and they are typically viewed as being at the opposite ends of the litigation food chain: medical malpractice cases and soft tissue auto accident cases where a substandard carrier insures the defendant. These are not coinicidentally the two most common types of tort cases to go to trial. In soft tissue cases with substandad carriers, the prospect of prejudment interest may prompt some behavior modification -- the low-ball final settlement offer may come sooner, or be made in a few more cases. But substandard carriers and med mal carriers take their very different types of cases to trial for the same reason: They generally do pretty well. There's no interest to pay on a defense trial verdict.

There will be some contention that this enactment, which at least potentially increases costs to Illinois insurers, will actually increase costs to Illinois insureds. There is an argument to be made that almost any action taken by our General Assembly leads to an increase in insurance rates.

But other events, including in particular large claim payouts after the "unrest" of this past summer, and the unprecedented surge in carjackings, will drive insurance costs up much farther and faster than the adoption of prejudgment interest.

Many other states have adopted prejudgment interest and insurers have somehow managed to do business in them. A 2015 survey done by Cozen O'Connor, linked here, may be a bit dated, but it suffices to show that Illinois is hardly alone in adopting some sort of prejudgment interest regime in tort cases. That probably won't stop the Judicial Hellhole folks from castigating our legislature on this issue, but I think the General Assembly will not crumble under criticism from that quarter.

On balance, at least in my opinion, the most alarming thing about prejudgment interest is not the concept itself, but the way in which it was adopted. Of course, I think the General Assembly will not crumble under this criticism either.

Friday, January 15, 2021

Illinois adopts prejudgment interest in tort cases: Part 1 -- A look at the process

There's an old saying that goes something like this: "Laws are like sausages. It's best not to see either being made." This quotation is usually attributed to Otto Von Bismarck; he probably never said it. Whoever came up with it, the quote refers to the often unsavory and frequently disturbing process by which legislative proposals find their way into law.

In the case of HB3360, Bismarck's sausages seem a less appropriate analogy than Dr. Who's Weeping Angels.

Follow along with me -- and don't blink!

On February 15, 2019, very early in the life cycle of the 101st General Assembly now concluded, Rep. Arthur Turner introduced a bill to amend two sections of the Mortgage Foreclosure Article of the Code of Civil Procedure, namely, §§15-1504.1 and 15-1507.1, extending or, as necessary, reenacting, until 2023, certain special, temporary fees to be added to the filing fees for initiating mortgage foreclosure actions. The bill was designated HB3360

HB3360 was referred to the Rules Committee on February 15, 2019. It was assigned to the Judiciary - Civil Committee on March 5, 2019. On March 6, 2019 HB3360 was further referred to the Commercial Law Subcommittee.

Rep. Turner introduced a couple of amendments on successive days, March 19 and 20, 2019. Meanwhile, the original bill was passed out of committee, without the amendments, on March 27 and March 28, 2019. The amendments were tabled on March 28 and HB3360 received its Second Reading in the House on April 2, 2019. Then, on April 4, 2019, HB3360 received its Third Reading. The bill was passed by the House and sent to the Illinois Senate that same day.

In the Senate, still on the same day, April 4, 2019, HB3360 received its First Reading, and was referred to the Assisgnments Committee.

On April 24, 2019, HB3360 was referred to the Financial Institutions Committee.

Action in the Financial Institutions Committee was postponed on May 1 and May 8, 2019. Committee scheduling deadlines were set for May 17, May 24, and May 31, the final day of the 2019 session. Until May 31, 2019, HB3360 sat in the Senate Financial Institutions Committee. On that date it was sent back to Assignments.

Meanwhile, in Article 50 (Adminstrative Provisions) of the FY2020 Budget Implementation Act, P.A. 101-10, in §50-25 to be precise, amendments were made to §§15-1504.1 and 15-1507.1 of the Mortgage Foreclosure Article consistent with those sought by HB3360.

HB3360, it would seem, had achieved its purpose without ever leaving a Senate committee. Section 50-25 of P.A. 101-10 became effective on June 5, 2019.

Then someone must have blinked.

And, in that blink of an eye, on January 10, 2021, the dessicated corpse of HB3360 was suddenly reanimated and placed on the Senate Calendar for an immediate Second Reading. It was set for a Third Reading on January 11.

On January 11, Senate President Don Harmon introduced a floor "amendment" to HB3360. The "amendment" deleted all the no-longer-necessary stuff about §§15-1504.1 and 15-1507.1 of the Mortgage Foreclosure Article of the Code of Civil Procedure and substituted in its stead an amendment to §2-1303 of the Code of Civil Procedure, the section pertaining to interest on judgments, adding new subsections (c) through (f) thereto. These provisions, which will be discussed substantively in Part 2 of this article, provide for prejudgment interest in Illinois tort cases.

The General Assembly website is very detailed, and very helpful, but I can not be sure I understand this January 11, 2021 entry: "Senate Floor Amendment No. 1 Be Approved for Consideration Assignments." I don't know for certain whether this means the "amendment" went to committee and immediately returned, duly approved. But the next entry, also on January 11, the bill was "Recalled to Second Reading." The next entry on the timeline, also January 11 was "Senate Floor Amendment No. 1 Adopted; Harmon." Then -- still on January 11 -- the bill was placed on calendar order for Third Reading. HB3360, now as "amended," passed 38-17 (with two not voting) following the Third Reading.

Someone blinked again and HB3360 "returned" to the House. Here's the rest of the Actions recorded on the ILGA website:

Because an entirely different version of HB3360 had already passed the House, way back in April 2019, this wholly different statute with the same name could bypass all the scrutiny new legislation would ordinarily receive. Fast as any Weeping Angel, HB3360 moved from committee oblivion to the Governor's desk, through the House -- which, during these two days was grappling with, and presumably at least somewhat distracted by, the selection of a new Speaker.

I realize a significant number of FWIW readers will be thrilled by this new law -- and again, we'll talk about the substance of the legislation in Part 2 -- but, even if you have lobbied for the adoption of pretrial interest for many years, is this any way to run a legislative process?

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

For Part 2 of this article, click here.

Thursday, January 14, 2021

Justice Neville announces procedure he will follow in filling Cook County judicial vacancies

The Illinois Constitution gives the Illinois Supreme Court the power to fill Circuit Court and Appellate Court vacancies as they occur. Three of the Supreme Court's justices are elected from Cook County (the First Judicial District). As a practical matter, the Cook County justices take turns filling vacancies as they come open. While I suppose it could happen that his or her colleagues might veto a particular choice, as a practical matter, when a justice proposes someone for a vacancy, that person gets a robe.

There are no specific rules governing how a justice may fill a vacancy. No justice needs to publicly explain why he or she appointed Lawyer A instead of Lawyer B, and no justice ever will. However, in recent years, however, Supreme Court justices have announced individual application processes, including screening committees, some more public than others. Now that he has been elected to a full term, Illinois Supreme Court Justice P. Scott Neville, Jr. has today announced the procedures he will follow. I quote verbatim from the press release (emphasis in original):

To be eligible for consideration for appointment to the circuit court, the candidate must be a lawyer in good standing, licensed to practice law in Illinois for 12 years, and a resident of Cook County.

To be eligible for consideration for appointment to the First District Appellate Court, the candidate must be a lawyer in good standing, licensed to practice law in Illinois for 15 years, and a resident of Cook County.

Under the Illinois Constitution, judicial vacancies are filled on an interim basis by Supreme Court appointment. See Ill. Const. Art. VI, § 12(c). Justice Neville will make a recommendation to the Supreme Court to fill a vacancy (1) after the candidate has undergone a screening and evaluation by the Alliance of Bar Associations, and (2) after Justice Neville has considered the findings made by the Cook County Circuit Court’s Screening Committee. If there are several outstanding candidates for a vacancy, Justice Neville may have his own committee review the findings and recommendations made by the Alliance of Bar Associations and the Cook County Circuit Court’s Screening Committee, and they will make a recommendation to Justice Neville.

All candidates for judgeships must have an evaluation from each bar association in the Alliance and the evaluation must have been issued by the Alliance within the last six years in order to be considered for a vacancy. If the candidate does not have an evaluation from each member of the Alliance within the last six years, the candidate should file an application and go through the Associate Judge application process. Finally, if there has been a change in a candidate’s status during the six years, e.g.,a move to another firm, a promotion to partner, or a contempt finding, conviction, suspension or disbarment, the candidate’s application must be supplemented and the information must be sent to the Alliance.

An application for Associate Judge may be obtained from the Director of the Administrative Office of the Illinois Courts (AOIC) on the form prescribed and furnished by the Director. The form and instructions for electronically submitting an application are available on the Supreme Court’s website by clicking here. If the candidate is unable to electronically submit an application, the candidate must submit two (2) signed originals of the prescribed application to the Director of the AOIC at the address listed below:

Marcia M. Meis, Director
Administrative Office of the Illinois Courts
222 North LaSalle Street, 13th Floor
Chicago, Illinois 60601

As FWIW readers already know, an associate judge selection process is now underway in Cook County. The deadline for applications is February 3. For more information about the current process, see these prior posts:

Wednesday, January 13, 2021

Congratulations to new Illinois House Speaker Emanuel "Chris" Welch

It's been a long morning watching Twitter -- mostly @capitolfax and @ShiaKapos on this issue -- but the Illinois House Democrats have finally named a successor to Michael Madigan. Emanuel "Chris" Welch (7th) was elected Speaker of the Illinois House this morning. Licensed as an attorney in Illinois since 1997, Welch is also employed by the law firm of Ancel Glink P.C., according to ARDC.

But... though Mr. Madigan is no longer Speaker, the question still remains... who will draw the new legislative maps? And how will they be drawn? Remember -- judicial subcircuits are being redrawn this year, too.

Second City Cop is gone

I've been retweeting updates on this from @CWBChicago on this one. This is the latest, and presumably the last:

The CWBChicago blogpost about this is here. The statement issued by the SCC authors is on HeyJackass!, at least for the time being. An excerpt:

Over the weekend, we received information from a contact at Google that internal chat/e-mails led them to believe that certain precautions we had taken over the years had been breached by Google. We had gotten similar warnings from others in the past, and we dealt with or ignored them as the situation warranted. But this one was different.

You may dismiss the SCC authors as paranoid right-wingers -- but former New York Times editor and writer Bari Weiss wrote, just yesterday, of the "takeover and the unimaginable strength of the new powers that have superseded" the "old truths, the old political consensus, ...the old common identity." Borrowing from David Samuels, she dubs this new age the age of machines. She continues (emphasis in original):

Now those machines, operated by people none of us elected, have begun an open war against us.

It’s not that Trump was permanently banned from Twitter. I’d be happy to never hear that voice or see those CAPS again. It’s that Twitter can ban whoever it wants whenever it wants for whatever reason. It’s that all the real town squares have been shuttered and that the only one left is pixelated and controlled by a few oligarchs in Silicon Valley.

We were promised the Internet would be better than democracy. But then it got privatized. Corporations own it. There is no online bill of rights. There is only the frenzy of the mob and fickle choices of a few billionaires.

Look, friends, even Germany's Chancellor Angela Merkel, whose disdain for Donald Trump has been open and obvious right from the beginning, thought it "problematic" that Twitter had evicted Trump from its platform.

Even if one exists, however, the SCC authors may have misinterpreted how high they were on anyone's hit list. But they had reason enough to fear for their paychecks if their identities were revealed. Clearly, there will be no tears shed for SCC's demise at City Hall, in the Chief Judge's Office, or by the Sheriff or the State's Attorney or the County Board President.

If they were in danger of being 'outed', I hope they got out in time. SCC has provided a genuine public service over the years, bringing important news to light that otherwise would have remained unseen. They were not journailsts -- but, often, they did work that the newspapers and broadcast media should have done.

Of course, sometimes, SCC just spouted some truly crazy sh*t. They had a point of view. Well, so does Injustice Watch (although a very different point of view, to be sure). You had to read through the point of view, sometimes, to get to the useful information, but there was useful information there. Some mornings they may have made you mad. Some mornings they made me mad, too. And some of the comments were truly frightening. But I will miss SCC. I wish its authors well.

Update: How long do Alliance ratings last?

In a recent post, I reminded persons interested in applying for associate judge of the need to seek or update ratings from the Chicago Bar Association and the Alliance of Bar Associations for Judicial Screening. A commenter asked about the shelf life of ratings... and my response was not entirely accurate.

Alliance Administrator Joyce Williams contacted FWIW to set the record straight. "For candidates evaluated before January 1, 2017," she advises, "favorable ratings are valid for six years. For candidates evaluated after January 1, 2017 favorable ratings are valid for four years. Unfavorable ratings have a life of three years."

Williams added that, because most evaluations took place more than 12 months ago, each candidate will have to update their questionnaire. The Alliance "short form" questionnaire has been eliminated, Williams said, explaining that "there were too many areas of interest to the evaluators that were not covered."

"I will begin sending out questionnaires this week to individuals who have contacted me," Williams said. The new Alliance questionnaire is almost duplicative of previous ones, but now requires a Letter of Good Standing from ARDC. There are also two new questions dealing with how the candidate is coping during the pandemic shutdown.

An explanation of the “life” of the ratings, instructional cover letter, and other required forms will be sent with the Alliance questionnaire, Williams said. A link to Williams' email is provided above for those who have not yet reached out to the Alliance. Associate judge applicants need to remember to contact Therese Kurth at the Chicago Bar Association as well.

Tuesday, January 12, 2021

Guest Post: Puerto Rican Bar Association issues statement on the U.S. Capitol attack

The PRBA is far from the only local bar group to offer a response to last week's riot at the Capitol. Follow the links in this sentence for statements from the Chicago Bar Association, the Illinois State Bar Association, and the Asian American Bar Association of Chicago.

But the PRBA's statement is a little different and readers may find it of particular interest. I reproduce it here in full, without comment. (The pictures used here were provided by the PRBA.)

The PRBA strongly denounces the attack on the US Capitol as anti-American and anti-democratic. The vision of confederate flags, armed insurgents and crouching legislatures will forever be a stain in this country’s history. The insurrection was a cowardly attempt to thwart our presidential electoral process and the voice of the people, who elected Biden as our next president.

Fortunately, these Trump-fueled domestic terrorists were unsuccessful, but as events unfolded on January 6, it was evident to the world that the US has another problem besides preserving our democracy; America needs to address the racist, double-standard that was also clearly on display that day. One need only compare the response from authorities to the mob that attacked the Capitol, and the military response to the Black Lives Matters protests this summer, to see the blaring disparity.

This was not the first time the Capitol was attacked. On March 1, 1954, four members of the Puerto Rican Nationalist Party, led by Lolita Lebrón, made it into the House of Representatives. From the visitor's gallery, Lebrón stood up and shouted, “Viva Puerto Rico Libre!” ("Long live a free Puerto Rico!") and unfurled a Puerto Rican flag. Five congressmen were shot and survived their wounds. Lolita Lebrón, Irvin Flores, Rafael Cancel Miranda and Oscar Collazo were immediately arrested by the US Capitol Police, and later found guilty of attempted murder. They would serve 25 years in prison before their 50 year sentences were commuted by President Carter in 1979.

The US Constitution and our democracy will survive the attempted coup this past week-- Joe Biden will be sworn in as president on January 20. But America’s bigger problem of systematic racism will linger. The PRBA, and millions of people of color in this country, demand that our leaders, in all branches of government, but particularly in the judicial branch, hold the perpetrators of this week’s attack fully accountable.

Lolita Lebrón served 25 years in prison for her role in wounding 5 congressmen. Black Lives Matters protesters from this summer all over the country are still facing pending charges. What will be the fate of the privileged insurgents who attacked the Capitol this week, where 5 people died?

Monday, January 11, 2021

Associate Judge Process Panel Discussion set for January 21

The Asian American Judges Association of Illinois is hosting a panel discussion "regarding the Associate Judge process" in Cook County on Thursday, January 21, at 5:30 p.m. There is no charge to attend this virtual event; a Zoom link will be provided upon registration. (Click here to reach the event registration page).

Associate Judge Neera Walsh will moderate the panel, which includes Associate Judges William Yu (selected in 2018) and Rena Van Tine and the newly appointed Acting Presiding Judge of the County Division, Judge Sanjay Tailor.

The South Asian Bar Association of Chicago is also promoting this event.

COVID-19 update

Next Monday will mark the 10th month anniversary of the Governor's stay-at-home order. Put another way, we are about to start our 11th month of our temporary two-week shutdown.

Vaccines are coming... eventually. They exist, anyway, and all we have to do is wait our turn. And wait some more. But remember when it was big news that there'd been a thousand tests administered in a single day? On November 25, the IDPH announced that there had been 10 million tests administered in the State of Illinois, 114,233 specimens having been tested in the 24 hours preceding alone. Vaccinations will ramp up similarly -- and the sooner the better, thank you.

Meanwhile, the Office of the Chief Judge has put out another COVID-19 update: Another employee, one who works at the Juevenile Temporary Detention Center, has tested positive for the virus. This brings to 100 the number of JTDC staff cases; there have also been some 80 resident cases there.

In total, according to this morning's announcement, 245 employees (out of a total of 2,600) of the Chief Judge's Office have tested positive for COVID-19. In addition, 18 judges, out of about 400, have tested positve.

The most recent COVID-19 update from the Cook County State's Attorney's Office is dated January 7. According to that announcement, an employee of that office, working at the Leighton Criminal Court Building, is the most recent person to report a positive test result. Some 71 employees of the SAO have tested positive for COVID-19, according to that announcement.

Friday, January 08, 2021

Christmas tree, holiday light recycling options

The Three Kings are on their way home now. It is now possible to go whole minutes without seeing an Amazon truck.

If you put one up, you are probably thinking it's time to take down that Christmas tree.

If you had a real tree you may be looking for a way in which to responsibly dispose of it.

There are options.

Starting tomorrow, January 9, and running through Saturday, January 23, you can take your tree to one of 25 Chicago parks for recycling. All ornaments and lights must be removed first, of course.

Here is the list of participating Chicago parks, per this December 29 report from ABC-7:

  • Bessemer Park
    8930 S. Muskegon Ave.

  • Clark Park
    3400 N. Rockwell St.

  • Forestry Site
    900 E. 103rd Street
    This site offers free mulch

  • Garfield Park
    100 N. Central Park Ave.

  • Grant Park
    900 S. Columbus Dr.

  • Humboldt Park Boathouse
    1369 N. Sacramento Ave.

  • Jackson Park
    6300 S. Cornell Ave.

  • Kennedy Park
    2427 W. 113th St.

  • Kelvyn Park
    4438 W. Wrightwood Ave.

  • Lake Meadows Park
    3117 S. Rhodes Ave.

  • Lincoln Park
    Cannon Dr. at Fullerton Ave., east of Cannon Dr.
    This site offers free mulch

  • Margate Park
    4921 N. Marine Dr.
    This site offers free mulch

  • Marquette Park
    6700 S. Kedzie Ave.

  • McKinley Park
    2210 W. Pershing Rd.

  • Mt. Greenwood Park
    3721 W. 111th St.
    This site offers free mulch

  • North Park Village
    5801 N. Pulaski Rd.
    This site offers free mulch

  • Norwood Park
    5801 N. Natoma Ave.
    This site offers free mulch

  • Portage Park
    4100 N. Long Ave.

  • Riis Park
    6201 W. Wrightwood Ave.

  • Rowan Park
    11546 S. Avenue L

  • Sheridan Park
    910 S. Aberdeen St.

  • Walsh Park
    1722 N. Ashland

  • Warren Park
    6601 N. Western Ave.
    This site offers free mulch

  • Wentworth Park
    5701 S. Narragansett Ave.

  • West Chatham Park
    8223 S. Princeton

According to this post on recyclebycity.com, some 17,000 trees were composted in the City program in 2019, diverting an estimated 620,000 pounds from landfills.

For tree recycling in areas outside the City, including Downstate, see this post from EHSO.com.

Trees, you say, are the easy part. What about the strings of lights that stopped working over the holidays?

The options here are more limited, but there are some.

A private company called Elgin Recycling partners with a number of local municipalities to collect and recycle holiday lights. If you explore the company's website, you will find all sorts of information about the program... in 2012. But, the lack of updates on its website notwithstanding, the Elgin Recycling program continues.

According to the January 4 issue of the Daily Herald (accessed via Lexis), the Village of Arlington Heights is working with Elgin Recycling in collecting strings of holiday lights or extension cords at the Health & Human Services Dept. in the Village Hall, 33 S. Arlington Heights Rd., or at the Arlington Heights Public Works Center, 222 N. Ridge Ave. through February 26. "Last year," according to the Daily Herald article, "with 51 municipalities participating in the Elgin Recycling program, more than 100,000 pounds of holiday lights were recycled instead of thrown away. Lights accepted include mini-lights (or Italian lights), C7 lights, C9 lights, rope lights and LED lights, as well as extension cords."

The Village of Glenview is also working with Elgin Recycling to collect used holiday lights, through February 28, at the Public Works Department, 2498 East Lake Ave. (corner of East Lake Avenue and Shermer Road) (there is tree recycling information available at that link, as well).

Mt. Prospect residents can drop off unwanted holiday lights and extension cords at the Public Works Department, 1700 West Central Road, between the hours of 7:30 a.m. and 5:00 p.m., from Monday to Friday. The website says "residents"; I don't know if they card.

This is a very short list because I only reported sites that I am reasonably confident about. There is---and I know this will come as a shock to some---a lot of outdated and downright inaccurate information floating around the Internet, even about holiday light recycling.

However, I would be pleased to add to this list. Email me or leave a comment about tree or light recycling in your area and I will update where possible.

Thursday, January 07, 2021

Thinking about submitting an application for associate judge?

Filling out the revised application on the Illinois Courts website is merely Step One.

Step 1A involves reaching out the bar associations that evaluate associate judge hopefuls. While there are 13 bar associations that issue evaluations that will be considered by the Circuit Court Executive Committee, 12 of these groups work together as the Alliance of Bar Associations for Judicial Screening. Joyce Williams, the administrator who coordinates the Alliance screening process, has asked all potential candidates to contact her for the Alliance questionnaire forms as soon as possible. That's a link to Ms. Williams' email in the preceding sentence.

The Chicago Bar Association is the other bar group that issues evaluations of judicial candidates. Email Therese Kurth at tkurth@chicagobar.org to receive the CBA Questionnaire and forms.

First time applicants will note that the associate judge application is similar to, but not the same as, the Alliance Questionnaire which, in turn, is similar to, but not the same as, the CBA Questionnaire. Nevertheless, most people will find it helpful to work on all of these simultaneously. These are all substantial undertakings and will take some time to properly complete. (And while it's true that, in every election cycle, one or more candidates gets elected without submitting to bar association screening, no one is going to make the "short list" without going through the evaluation process.)

And if you are not thinking about applying for judge, at least not for a few years, you may wish to consider helping the bar groups sift through the lengthy candidate questionnaires by joining a judicial evaluation committee. Every bar group that issues evaluations has one. And if you are a member of any of these bar associations, you can join.

As longtime FWIW readers know, judicial candidate evaluations are sometimes criticized as partisan or ideological; individual evaluators have been criticized for having an 'agenda.' But the influence that any one evaluator may have, no matter how determined, can be diminished, if not eliminated, through numbers: The more evaluators that participate, the fairer the process should likely be. Particularly if you, Dear Fair-Minded Reader, participate.

There is significant work involved in JEC committee service, but, particularly for those attorneys who regularly appear in court (or who will, eventually, again regularly appear in court some day) there is also an opportunity to improve the quality of the bench and thereby improve the quality of your own professional life.

Members of Alliance groups interested in JEC service should contact Joyce Williams; CBA members may wish to contact Therese Kurth.

Tuesday, January 05, 2021

Chief Judge Evans names three new acting presiding judges

The headline-grabber is the appointment of Judge Erica L. Reddick to head the Criminal Division of the Cook County Circuit Court. Reddick succeeds Judge Leroy K. Martin, Jr., recently assigned to the Appellate Court (replacing Justice Robert E. Gordon, who was appointed to the vacancy created by the retirement of Justice Shelvin Louise Marie Hall).

But Chief Judge Timothy C. Evans also announced yesterday that newly-appointed Circuit Court Judge Sanjay T. Tailor will become the acting presiding judge of the County Division, replacing Judge Sharon Sullivan, who has retired. Also, Judge Diann K. Marsalek, who had been Supervising Judge of the First Municipal District's Traffic Court, has been appointed to the newly-created position of "acting presiding judge over all traffic judges in Cook County."

Judge Reddick, the first woman to head the Court's Criminal Division, was appointed to the Circuit bench in 2010, elected to a countywide vacancy in 2012, and retained in 2018. Licensed as an attorney in Illinois since 1991, Reddick spent her pre-judicial career in the Public Defender's office, serving "in a number of leadership positions, including deputy chief of the felony trial division, acting chief of the Third District and attorney supervisor of the felony trial division," according to the Chief Judge's announcement.

According to the Chief Judge's Office, Judge Tailor will be the first Asian-American to serve as a presiding judge in the history of the State of Illinois. An associate judge since 2003, Tailor had served in the Chancery Division since 2015.

Judge Marsalek was first appointed to the Circuit Court in 2011; she was elected to a countywide vacancy in 2012 and retained in 2018. Since becoming Supervising Judge of the First Municipal District Traffic Court, Marsalek has "trained approximately 150 new judges," according to the announcement from the Chief Judge's Office.

Eleven associate judge vacancies to be filled in Cook County... at least at this point

Cook County Chief Judge Timothy C. Evans announced yesterday that there are 10 associate judge vacancies to be filled. Applications are available on this page of the Illinois Courts website and must be submitted by February 3.

In keeping with the modern trend, applications may be submitted electronically to the Administrative Office of the Illinois Courts (and emailers will have until 11:59 p.m. on the 3rd to send in the application). However, 'wet signature' applications (applications signed in ink) can still be delivered to the AOIC's Chicago office, so long as they are received by 5:00 p.m. on the 3rd. A new application form was promulgated in September 2019; no applications using the old form will be accepted.

The announcement of a new class of associate judges is not a signal that the Pandemic is past; rather, it was triggered by Illinois Supreme Court Rule 39(b), which requires posting of a notice of vacancy when five or more associate judge vacancies exist. One vacancy was created when Associate Judge Franklin U. Valderrama moved to the United States District Court; four others were created when Associate Judges Michael A. Forti, Mary C. Marubio, Celestia L. Mays, and Levander Smith, Jr. were sworn into full Circuit Court judgeships last month.

In a departure from past practice, the Chief Judge's announcement yesterday mentioned all of these by name, as well as the resignations of Associate Judges Earl B. Hoffenberg, Carol A. Kipperman, Macia B. Orr, and the retirements of Associate Judges James N. Karahalios and Richard A. Stevens. If you're keeping score at home, that adds up to 10 vacancies -- but that did not include the vacancy opened yesterday by the appointment of Associate Judge Sanjay T. Tailor to a countywide vacancy.

Casual observers of the process (and first-time applicants) are often astounded by how long it takes to form each new class of associate judges. For example, for the class of associate judges announced in April 2012, applications were closed on November 1, 2010. There were 276 applicants in March 2013; the 13 associates selected from that applicant pool were announced in April 2014. There were 283 applicants in early 2015; 13 new associates emerged from this group in April 2016. A notice of vacancies in January 2017 attracted 272 applications and, eventually, 17 new associates (16 associate judges were announced in May 2018; because of a tie, the 17th was not selected until June). Vacancies announced in August 2018 attracted 212 hopefuls; 15 new associates were selected from this list in December 2019.

One reason that it ordinarily takes more than a year for each new crop of associate judges is that the Chicago Bar Association and each of the Alliance bar groups will be asked to weigh in on the qualifications of each aspirant. That takes time; while many candidates have previously sought judicial office, there are always some newcomers. And, only when the evaluations are done, or largely done, will the Circuit Court's executive committee begin interviewing hopefuls. After the interviews are concluded, the executive committee will select a "short list" from the applicants in the current pool, two for each vacancy. These names are on the ballot submitted to all the eligible full Cook County Circuit Court judges -- and, almost always, the associate judges selected will be on this ballot. (There have been a couple of recent exceptions -- a couple of "write-ins" have been selected without making the short list -- but these were already-serving judges; anyone else attempting a "write-in" campaign would presumably damage, if not destroy, their long-term prospects.)

The announcement of the formation of the next class of associate judges will also depend on the results of the 2020 census.

The number of associate judgeships available in Cook County is set by statute, but is determined by population. The Associate Judge Act provides, in pertinent part, at 705 ILCS 45/2(a), "The maximum number of associate judges authorized for each circuit is the greater of the applicable minimum number specified in this Section or one for each 35,000 or fraction thereof in population as determined by the last preceding Federal census, except for circuits with a population of more than 3,000,000 where the maximum number of associate judges is one for each 29,000 or fraction thereof in population as determined by the last preceding federal census...."

The population of Cook County declined by 182,500 between the 2000 and 2010 censuses. That cost the Cook County Circuit Court six associate judge positions.

Judges are immune from layoffs. But, when an associate judge surplus exists, the death, resignation, retirement, or removal of an associate does not create a vacancy. Thus, because of the decline in the number of associate judgeships required by the 2010 census results, there were only nine vacancies available in the 2012 class.

The final 2020 census figures have not yet been determined. But preliminary figures suggest a population decline of 45,000. The July 1, 2019 estimate shown in the linked table will surely change when the final figures come out. If the number were to stay the same, one existing associate judge vacancy would not be refilled. If the final number is lower than the estimate, more may be lost.

If the county population drop is significant, and several positions thereby eliminated, this year's process might be stretched out, waiting for additional attrition among the ranks of the associates. Time, and numbers, will tell.

Thursday, December 31, 2020

Sanjay Tailor appointed to countywide vacancy

The Illinois Supreme Court today appointed Associate Judge Sanjay T. Tailor to the countywide vacancy recently created by the death of Judge Diane Gordon Cannon.

The appointment is effective Monday, January 4, and expires December 5, 2022.

Currently serving in the Circuit Court's Chancery Division, Judge Tailor became an Associate Judge in 2003. Before becoming a judge, Tailor served as a Cook County Assistant State's Attorney, rising to the position of Deputy Supervisor of the Torts and Civil Rights Litigation Section. Licensed as an attorney in Illinois since 1991, Tailor began his legal career in private practice, working for the firm of Chapman and Cutler LLP. The Supreme Court's press release about the appointment is available here.

A Very Merry Christmas to all, and moderate expectations for the New Year

I know what you're thinking: Merry Christmas? Now? Christmas Eve was a week ago. Once again Leyhane comes in late and lame.

Which may be true -- but it's still Christmas. Did your true love give you seven swans a-swimming today? This is the Seventh Day of Christmas. The Shepherds are back with their flocks, perhaps, but the Three Kings are still following the Star. By now, perhaps, they've stopped off at Herod's palace to ask for directions, but they haven't yet found the place where the Child was.

Come to think of it, this story may provide a good explanation for why men (allegedly) have been reluctant to stop and ask for directions, even prior to the invention of Google Maps: Look at the terrible things that happened when the Wise Men innocently asked for directions to Bethlehem. No responsible person would want to ask for directions after that, right?

The Twelve Days of Christmas will continue into next week. The Wise Men will finally get to deliver their gifts on January 6th, the Feast of Epiphany. And, yet, many of my neighbors, and I'll bet some of yours, too, have already taken down their Christmas decorations. I understand that this year, in particular, many are in a hurry to be done with Christmas. Because after Christmas comes New Year. And with the New Year 2020 will be but a nightmarish memory.

Match.com is running some clever ads that, I think, catch the national mood toward the year now ending -- in them, Satan meets his soulmate, 2020. In the picture above, the happy couple are having a picnic in an empty stadium -- emptied, we automatically realize, on account of COVID-19.

Since last Sunday, Brewster Rockit has been taking a not-so-fond look back at 2020. In a subsequent strip, one of the characters suggests that "its like 2020 was run by a super villian." A lot of people, I think, take that view.

And we certainly hope 2021 will be better.

But the 'Rona won't vanish with the last stroke of midnight tonight. Our ongoing two-week shutdown, now in its 10th month, will continue into an 11th and beyond.

Many people are thinking things will improve dramatically after January 20. "My new favorite palindrome - 12021" was making the rounds on Facebook a week or so ago. Things should be a little less crazy in Washington---I hope---on January 21. At least the early monrning Tweets from the White House will presumably cease.

But things are going to be rough for a lot of us for a long time to come. I don't know if the Loop will ever come back to anything like what it was: Business owners have seen for themselves that a lot of people can work from home. Why pay rent on offices in downtown skyscrapers? Leases will expire and not be renewed. Offices that must remain will downsize. And what will become of the buildings themselves? These were the golden geese of our property tax system. Their owners won't be making as much money; the buildings will not be generating vital tax revenue. And what about the conventions and trade shows that provided so much tax revenue. All of these associations have learned how to do virtual events now -- will they want to resume actual events, once public health authorities permit? City and County revenues are going to be woeful for the foreseeable future.

When will the courts fully reopen? How? Every sort of business owner is asking questions like this. Local authorities haven't received as much vaccine as was promised -- and have pushed out only a small fraction of what they have received. The pace will quicken. But, even so, it will be months, at best, before most of us will be vaccinated.

And when we are all vaccinated, will there be restaurants to visit? Will any movie theaters survive? Will live theater return? The White Sox should be competitive -- but will people be able to afford tickets?

The economic numbers aren't so bleak because, while so many were suffering, Amazon and Wal-Mart and Zoom and a lot of the tech sector thrived. The very rich got richer. But a lot of jobs aren't coming back. Not in 2021. Probably not ever.

So Happy New Year to all -- but don't get your hopes up that 2021 will be a great improvement over what we're living with now. Not right away. Maybe at some point. Whoopee!

Wednesday, December 16, 2020

The Longest Election: Dr. Klumpp analyzes the Cook County judicial retention results

by Albert J. Klumpp

Two years ago Cook County experienced an election that was different from any other in its 54-year history of retention voting. Last month’s election, while not a carbon copy of 2018’s, had many of the same basic characteristics and indicates that what happened in 2018 was more than just a flash in the pan.

Concern over police misconduct and wrongful convictions continued to drive higher-than-normal levels of attention to the retention part of the ballot. Voter participation on retention judges was 70.02%, roughly equal to that of 2018 but reaching just above 70% for the first time ever.

Most of the past fluctuations in participation can be tied to changes in voting systems and ballot designs. 2018 and 2020 together are only the second instance of participation changes attributable to a substantive public policy matter (the other being the Operation Greylord investigation of the 1980s). Evidence of this is that nearly all of the 2018-2020 increase is attributable to Chicago voters and not suburban voters. Historically a higher proportion of city voters has skipped the retention part of the ballot compared to suburban voters, but in 2018 and this year, city participation rose to nearly equal suburban participation.

The base approval rate for the entire set of judges—that is, the rate for a judge with no name-cue advantages or informational disadvantages--was 75.3 percent, a historically typical figure and essentially unchanged from 2018’s 75.4 percent. Female judges had their best election ever, with a 3.5 point advantage relative to male judges. Historically their advantage had been 1.5 to 2 percentage points but began creeping upwards more recently, jumping to 3.4 points two years ago.

On the other hand, there was no significant racial/ethnic vote. Typically there is a small but detectable bump for having a recognizably Irish, African-American (based on US Census data) or Hispanic surname. But while 2018 saw one- to two-point bumps in all three categories, nothing of the sort was detectable this year. Certain wards and townships showed expected preferences--Irish names in the 19th Ward; Hispanic in Cicero Township; African-American on the South Side—but in the overall countywide numbers there was no meaningful advantage.

The most important characteristic of the 2018 election was the substantial use of voter information. Nearly one-third of the 2018 retention electorate (32.7%) voted based on some source of information—a newspaper or bar association, a social media guide, or one of the political or community campaigns against Matthew Coghlan. This year, despite the larger turnout typical of a presidential election, information use held relatively steady at 31.9%. Both of these elections eclipsed the previous high of 22.0% in 1988.

While the 2018 and 2020 figures are similar, their composition differs. One difference is a decrease in the county Democratic party’s influence. In 2018 roughly seven percent of the electorate followed the party’s instructions to support all judges except Coghlan. This year its influence was less than three percent, albeit with a larger electorate. The wards and townships where the party’s influence was greatest were largely the same in both elections, but the overall effect was lower throughout. Negative publicity over the Michael Toomin controversy undoubtedly hurt the party, but another factor may have been a decrease in the overall number and timing of party mailers (still looking for information to confirm or refute this).

In contrast, there was an increase in the impact of social media. The “Girl I Guess” voter guide that emerged in 2018 remained influential this year, with an estimated 4.2 percent effect (versus estimated 3.4 percent in 2018, likely but not provably higher). In addition, a bare-bones “Chicago Voter Cheat Sheet” prepared by two city political activists was statistically detectable in every city ward except the 41st, and had an overall impact of roughly 2.6 percent countywide. Together the two guides had a larger impact than any single bar association or newspaper.

As for bar associations, the ISBA’s ratings emerged in 2018 and 2020 to become an influential information source, worth roughly 3.5 percentage points in both elections. More media outlets have reported ISBA ratings in recent years and their reporting is having an effect. For instance, the suburban Daily Herald newspapers, which in the past had tended to report CCL or Alliance ratings in their pre-election coverage, instead emphasized ISBA ratings in both 2018 and 2020. In all of the suburban townships where the Herald newspapers circulate, ISBA ratings this year showed an influence of between six and eight percentage points.

Ratings from the CBA and Chicago Tribune measured in the 5-6 point range, as they did in 2018. There also was evidence, as in 2018, of Alliance ratings having a small but detectable influence where little or none besides the CCL’s ratings could be detected in prior years. This is difficult to pin down precisely because of the number and similarity of the ratings among all of the bar associations, but overall the numbers do suggest, as they did two years ago, that the Internet and mobile devices are being used by increasing numbers of voters to access information from more different sources than in the past.

Finally, the usual bit of fine print: the statistical estimates reported here are just that—estimates—and have margins of error, but all are considered highly statistically significant.

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Albert J. Klumpp has been a generous and frequent contributor to FWIW 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, "Evaluating Judicial Merit Selection," in the November 2020 issue of Arizona Attorney (the link will take you the magazine website; you'll have to click around a bit to access the article). Closer to home, Klumpp's recent publications include "Campaign Spending in Cook County Judicial Elections," CBA Record, Nov.-Dec. 2019 (p. 30)

Tuesday, December 15, 2020

The Longest Election: Starting a look back at the 2020 election

Maybe it was done to generate interest -- and, not coincedentally, to divert attention from the seemingly certain Democratic nominee. Maybe it was done because they had no clear frontrunner (though many alleged movers and shakers were supposedly pining for Jeb Bush). Whatever the reason, in 2016, the Republican Party sought their presidential nominee using a reality TV format -- their own version of Survivor, The Real World, or I'm a Celebrity, Get Me Out of Here -- with roughly 25 Republican hopefuls.

Or roughly 24 Republicans and billionaire reality TV host Donald Trump.

The Republicans and, ultimately, the nation as a whole were shocked -- shocked -- when the reality TV host emerged from this hokey process as the nominee.

Still, the concept might have been retired, unmourned, but for the unexpected outcome (unexpected by any pollsters or pundits) of the 2016 election. It is apparently a fundamental law of American politics that, if a tactic works for THEM, no matter how stupid or far-fetched, it will be copied by US.

Maybe that's unfair to politicians. It works that way in other industries, too. Does anybody get a big-budget movie greenlighted these days without a comic book superhero angle? Imitation may be the sincerest form of flattery, but it is also the best defense against ever having to have an independent thought.

Thus it was that the 2020 election started before workers could remove that unshatterred glass ceiling from the hotel ballroom. And, sadly, history will affirm that many Democratic Party leaders first responded to Trump's victory by casting about for their own billionaire TV host to run against Trump in 2020.

When Oprah turned them down, the Democrats came up with their own reality TV format -- not just an island, but a two-island mini-archipelago, with something like 50 wannabes, many of whom were known to others beyond their immediate families. One island was like the kids' table at a holiday gathering, with obscure contestants vying for the chance to move up to the grownup table, from which the eventual nominee would emerge. Contestants could be voted off the islands entirely, or demoted to the kiddie table, apparently on the basis of responses to the breathless emails that clogged our inboxes every morning. (Who won last night's debate? Vote now!) I'm only surprised there wasn't an 800-number flashing throughout each nightly program.

There's no guarantee that the reality TV format will be abandoned four years hence. Indeed, I'm seriously afraid that, in 2024, one or both parties may add a panel of party elders to help eager contestants craft their messages to the American people. (Congratulations! You're on Team Bernie!) The Republic might survive that... as long as the parties don't make the candidates wear costumes.

The onset of the Pandemic also contributed to the seeming length of this election season.

But it wasn't just the fact that we were stuck at home, seeking affirmation of our increasingly strident views from our like-thinking friends on Facebook, or performing pathetic dances on Tik Tok as the economy crumbled about us -- this election season really was longer than its recent predecessors, and on both ends.

Early voting started earlier than ever -- and, of course, the unprecedented numbers of mail-in ballots guaranteed that it would take far longer than usual to figure out who won. Indeed, you won't have to drive too far beyond the Chicago suburbs before you encounter some seemingly solid citizens who are not entirely sure that the national election is over even now.

But the 2020 election is over, even though, in a few local cases, discovery recounts and related court challenges will continue a while longer. So it's time to start looking back, and see what really happened and, potentially, use that hard-won knowledge to begin preparing for 2022.

By which time, hopefully, our two-week shutdown will finally be over....

Unfortunately, I have more questions than answers at this point. Among these:

  • Despite being bombarded with incessant messages about the necessity and virtue of voting, and despite a myriad of options for accomplishing this civic duty, roughly three out of 10 of our neighbors still did not bother to vote. Why?

  • Mail-in ballots unquestionably skewed strongly Democratic. But were they uniformly distributed among the population, or were there concentrated pockets of mail-in participation? If so, where?

  • Do any identifiable pockets of mail-in voters in Cook County correspond with nationwide patterns? Were there nationwide patterns?

  • Did local mail-in voters linger longer over their ballots, giving more attention to the down-ballot questions -- the judicial retention ballot, for example?

Definitive answers to some of these questions may be impossible to ascertain. But the next essay in this series, a guest post by Dr. Albert J. Klumpp, will suggest possible answers to one or more of these. And -- SPOILER ALERT -- Dr. Klumpp will thoroughly refute my unsupported perception that voters were more hositle toward retention judges this year than in recent elections. Stay tuned.

Monday, November 30, 2020

Be careful what you wish for: Changes announced to Rule 23

I have tried---really, I have---to summon the enthusiasm exhibited by my fellow practitioners concerning the November 20 Supreme Court Order amending Illinois Supreme Court Rule 23.

The Appellate Lawyers Association hailed November 20 as "a great day for the Illinois appellate bar." The ALA's celebratory email breathlessly recounted the "years of advocacy by the Appellate Lawyers Association, working in conjunction with the Illinois State Bar Association and the Chicago Bar Association, for exactly this amendment to Rule 23." I mentioned some of these extensive efforts in a 2017 post (which also sounded a warning to be careful what one wishes for).

The bottom line is that Rule 23 Orders entered after January 1, 2021 may be cited as persuasive authority. They still are not precedential. Rule 23 Orders entered before the first of the year may not be cited "except to support contentions of double jeopardy, res judicata, collateral estoppel, or law of the case."

The rule change will presumably alleviate the frustration that every appellate practitioner has experienced when a Lexis or Westlaw search returns a case that has exactly the language you were looking to plug into your brief -- only to find that the case was decided under Rule 23. At least if the Rule 23 was entered after 1/1/21. But... will Rule 23 Orders actually be better somehow after the New Year?

If Rule 23 functioned as its original drafters intended, the Supreme Court would never grant a PLA from a Rule 23 Order -- and we all know this is not the case. There are new examples every term.

Rule 23 Orders can be quite scholarly. They can quite carefully delineate and distinguish all applicable precedents as well or even better than published opinions on the subject. And these are the Orders that appellate practitioners are looking to cite when they are issued on or after 1 January. These are the Orders that are fueling the ALA's excitement. Of course, such Orders probably should have been published in the first instance -- and should be published after January 1, 2021, too. Moreover, not all Rule 23 Orders are not created equally.

Every appellate lawyer hopes to contribute, victoriously, to the development of the common law. This can only be done through published opinions. And, at one time, I thought that every case should end up in a published opinion. But I also suspect every appellate practitioner has had cases in which a disposition under Rule 23 was a mercy. (I certainly have.) Sometimes we make really good arguments in not-so-good cases -- but we are relieved when the Appellate Court charitably chooses not to share the refutation of these arguments with the world.

And as grateful as practitioners sometimes are for Rule 23 dispositions, there are others.... It would be impolite as well as not entirely accurate to state that Rule 23 is where the justices bury their mistakes -- but many practitioners have experienced pangs of doubt, while reading numbly through a Rule 23 defeat, about the amount of time that an elected or appointed member of the Appellate Court actually spent with the briefs. Or in crafting, or even editing, the Order. (This is one reason why the 2018 changes to Rule 352, pointedly encouraging more oral arguments, was so gratefully received by the bar.)

Sometimes the ability to use Rule 23 seems to give a panel a seeming license to disregard controlling precedent. I'm sure many appellate practitioners could (but would probably not, not without the liberal administration of sodium pentothal) cite examples of Rule 23 Orders in which the court found the facts so compelling as to require a certain result, the weight of precedent notwithstanding. Published cases may give a practitioner reason to assume success in a given case only to find, to her sorrow, that the Appellate Court never applies that rule when the case can be decided in the shadows of Rule 23. The new rule may flush some of these instances out into the open where they can no longer be politely ignored. That could be a good thing. Only time will tell.

Wednesday, November 25, 2020

Then again, maybe it's not all over in the 12th Subcircuit...

CBS2 aired a story last evening about a challenged raised by 12th Subcircuit candidate Frank R. DiFranco to the Judge Patricia M. Fallon's apparent come-from-behind victory. Fallon's narrow victory (502 votes) was certified yesterday.

If the video that I have attempted to embed above does not work---a distinct possibility given my limited technical abilities---the CBS2 story can be accessed at this link.

I have reached out to both the DiFranco campaign and the County Clerk's office for more information and I will update this post or put up an additional post if and when I have something new to report.

Tuesday, November 24, 2020

It's official: Fallon wins in 12; Mahoney retained

The votes are all counted, finally, and, finally, we can say: The "Red Mirage" was real.

No... wait... we can't say that. Mirages, by definition aren't real. Perhaps, instead, we could say the Red Mirage Phenomenon played out as prophesied.

The national pollsters messed up again in 2020. Not as bad, perhaps, as 2016 -- this time, the candidate predicted by the pollsters to win did in fact win -- but there was no landslide, though increasingly giddy pundits were making more and more extravagant promises in this regard as Election Day drew ever closer. But the vast majority of talking heads all cautioned that, on Election Night, it would appear that Trump had won, or was on his way to winning, a second term because Trump voters were going to the polls in person -- and Democrats were voting by mail. The vote by mail ballots (VBM ballots) would, ultimately, they said, flip the script.

Then came Election Night and all the pundits forgot about what they had said about mirages and began plotzing all over national TV....

The VBM effect was particularly strong in True Blue Illinois. A lot of races seemed to be heading for Republican wins as Tuesday, November 3 turned into Wednesday, November 4. Two Cook County judicial races---the only two contested Cook County judicial races---were among those impacted by the VBM wave.

Appointed Judge Patricia M. Fallon (pictured at right) seemed likely to have lost her seat as the in-person votes were posted. The gap seemed too large to close. Then, as VBM ballots were tabulated, the gap grew smaller. And then smaller still. Eventually, Fallon eked out a lead -- and, now, according to official results revealed today, has eked out a win, by 502 votes, 82,976 to 82,474.

Meanwhile, in the 13th Subcircuit, which looked like a cliffhanger on Election Night, Susanne Michele Groebner has won a decisive victory, with a better than 14,000 vote margin.

VBM ballots do not appear to have flipped any retention races. Judge John J. Mahoney was bobbing at or near the 60% mark on Election Night, dipping below 60% in City returns though faring better in the suburbs, and his fortunes seemed to ebb and flow with each new release of totals. In today's final figures, though, Mahoney's "yes" percentage was 60.13%, representing a slight upturn in his favorable numbers since I'd last reported them.

In other closely watched retention races, Judge Michael P. Toomin, though dumped by the Cook County Democratic Party and targeted for defeat by the Judicial Accountability PAC, was retained with 61.67% "yes" votes, according to today's final figures. Judge Patricia Manila Martin, who told evaluating bar groups that she would be retiring, was nevertheless retained with 62.16% of voters agreeing that she should be retained in office. Only two judges were actually defeated for retention, Mauricio Araujo, who finished with a "yes" vote of only 48.14%, and Jackie Marie Portman-Brown, who finished with a "yes" vote of 59.32%. Both had been assigned to administrative duties by the Executive Committee of the Cook County Circuit Court prior to the election; Araujo was actually brought before the Illinois Courts Commission on misconduct charges during the election cycle, quitting before the Commission could determine what sanction would be entered against him.

I have suggested now, on a couple of occasions, that the electorate this year may have been unusually sour and that this was reflected in lower than usual favorable percentages for all retention judges. After perusing the final figures, however, it may be necessary to revisit this conclusion. Five judges, all female, did top the 80% favorable mark in this election, Donna L. Cooper, Debra B. Walker, Cynthia Y. Cobbs, Maritza Martinez, and Bridget Anne Mitchell. Judge Walker seems to have led the pack with an 80.59% "yes" vote. In 2018, there were eight retention judge candidates (also all female) who bested the 80% mark. I think I'll wait for Dr. Klumpp's opinion as to whether this difference is significant.

The Circuit Court of Cook County throttles back

Yesterday Cook County Chief Judge Timothy C. Evans entered General Administrative Order No. 2020-7, an order which, by its terms, supersedes the latest (October 17) updates to G.A.O. 2020-02.

The Circuit Court is responding to the current surge in COVID-19 cases by allowing all court business, "except in extraordinary or compelling circumstances," when not otherwise prohibited by "the limitations imposed by the constitutions of the United States and the State of Illinois," to be conducted by videoconference.

Paragraph 1.a.v. provides specifically that, "No bench trials in criminal cases and no jury trials of any kind shall be held until further order of the court. When jury trials resume, the judge presiding shall schedule jury trials not less than 60 days after the date on which the parties are notified of the trial date."

The dust will be settling soon.... meanwhile let's talk about comments

The results of the November election should be certified today, three weeks after the polls closed. I'll hold off on final reports on a couple of races until these come out -- but it does appear that, when vote by mail ballots are finally tabulated, Judge Patricia M. Fallon will have completed her comeback from a substantial Election Night deficit and held on to her 12th Subcircuit seat. Admittedly, I did not report on every update.

The truth is, the results of the 2020 November election were fixed like a fly in amber when the last precinct closed in Cook County on the evening of Tuesday, November 3 -- or perhaps when the Main Post Office on Harrison Street stopped postmarking envelopes November 3.

(One good thing about efiling is that it's been a long time since I had to drive downtown in the middle of the night and get in line at the Post Office in hopes that my freshly-printed appellate brief would be postmarked on the filing date---thank you, mailbox rule!---even if, due to the length of the line, it did not look like I would make it to the counter until a minute or two after midnight. Anyone who doubts the literal, physical truth of the expression 'his heart was in his throat' has never been in line in those circumstances....)

But, though the election results were determined by 12:01 a.m. on November 4, these were not immediately known. The order in which the votes were counted made for significant, but entirely artifical, drama. I complained about 'horse race' coverage on TV on Election Night; it didn't seem right for me to contribute to the phenomenon in the races covered here on FWIW. Frankly, I think I reported enough to show the trend lines without engaging in unnecessary speculation.

Judging by the always anonymous comments in my inbox, several FWIW readers disagreed. I got updates, particularly on the 12th Subcircuit race and Judge John J. Mahoney's retention bid, every time new numbers were released.

Often these updates were accompanied by fairly creative statements that I would never print. (Admittedly, there were a couple of "creative" statements on other topics that did make it through in recent weeks, temporarily, due to my unfamiliarity with recent Blogger format changes. But I think I eventually removed them all.)

I have already suggested that electorate generally was in a sour mood this election cycle, just judging from the lower numbers across the board for Cook County judicial retention candidates: Even the highest rated, least controversial jurists fared worse this year than their similarly-situated brothers and sisters in years past. This sour mood was likewise reflected in the anonymous comments in my inbox this cycle.

I've struggled with how I might share some of these with you without actually aiding and abetting the defamatory purposes of some commenters. Some specific names have been deliberately retained. Also, some of the references are certainly obvious, but, in my best judgment, unavoidable, in order to report on the sentiments apparently floating around there among some in our community. I think I can get away with these (and, yes, I've edited where I can):

  • What? Nothing to say about that Retention Class now? So much for judicial independence. The old dinosaur survives. [Redacted] trash talks. And two judges left twisting in the wind. Next time it will be 4 of them. Watch your backs 2022. So many of you have so much baggage. Save a seat for us at the Dearborn.

  • Like mom always said, it's not always cream that rises to the top. Congratulations (?) to the Retention Class of 2020. But just remember, the Daley Center will eventually have to reopen and those of you who barely came to work pre-COVID will have to start riding those elevators with the rest of us sooner or later. You know what that means: R-E-T-I-R-E-M-E-N-T. You know many of you have been talking about it among yourselves and those "leakers" have been telling the rest of us. We will patiently wait for you to make your exit next summer. We will wait and have our petitions ready to pounce on the competition. Donald Trump and the Retention Classes are my role models: sociopaths who don't care about anything but themselves. Time for us to get ours.

  • I've been phone banking all weekend long, courtesy of the Fair Tax Amendment people. Been calling people all over Cook County, encouraging all of them to vote NO on the following judges: Flannery Cobbs Rosario Rivers Raines Buford Sheahan Kubasiak Time to create some more countywide vacancies for 2022.

  • [A certain Democratic committeeman] is something else. He has a mannequin dressed in a white Klan robe positioned outside the early voting location. It has a sign saying "Vote No on these Judges -- Mahoney, Wadas and Democopoulos -- former prosecutors and current racists, bad for OUR community." Very powerful stuff. I would have taken a picture of it, but the guys standing watch looked like they had a healthy respect for their Second Amendment rights and I wasn't going to push my luck.

I had one would-be commenter who researched 60+ names of persons he or she thinks will be on the retention ballot in 2022. This person is already demanding a "no" vote on all 2022 retention candidates "if they don't resume jury trials at the Daley Center in January 2021." I think (I devoutly hope) this was one person who submitted about 10 different comments along these lines (further example: resume trials "or else we FIRE the 2022 Retention Class"). I have reason to believe that one person was responsible for all of these comments since each one named every judge who might be on the retention ballot in 2022.

I posted about a judge who passed away during the height of the election season. I had to suppress several comments. Whatever happened to not speaking ill of the dead? Once upon a time, I thought that a Supreme Court committee on civility was unnecessary... now I wonder if its task is not akin to bailing out the ocean.

Some FWIW readers may be smart lawyers, but they don't understand how Illinois is set up: At least one would-be commenter presumed that Justice Kilbride's loss in his retention bid bodes ill for Justice Mary Jane Theis, who will be on the retention ballot in 2022. Um... Justice Kilbride was elected as a Democrat from an area that has always been Republican -- and has only become more and more so as America's partisan divide deepens. Whatever else the future may hold, Justice Theis will not be facing that kind of uphill battle in Cook County two years hence.

I have to think that this would-be commenter knew better than this... but, on the other hand, the failure of civic education seems more and more apparent:

Hello don’t you think the rate of Fallon’s votes seem fishy? Btw 7 of my families mail in ballets have yet to be counted as of tonight, November 17th. All straight Republican (including DiFranco). That’s not right. No updates on numbers today. Watch tomorrow she will pull ahead. No transparency.

Um... yeah... when I was a brand-new voter, in the late 1970s, living with my parents just across the Lake County line, I could see my primary vote reported in the local newspaper. And I knew it was my vote that had been counted... but only because I was the only one taking a Democratic ballot in my precinct. But that's about the only way that a voter can be absolutely sure that a particular vote has been counted.