Cook County Circuit Court tosses both proposed constitutional amendments

Cook County Circuit Court Judge Mary L. Mikva today entered an order that will prevent both of the proposed constitutional amendments, Bruce Rauner's highly-publicized term limits initiative, and the independent redistricting amendment, from appearing on the November ballot.

All the machinations involving the Illinois State Board of Elections, all the Tribune's editorial hand-wringing, proved to be for naught.

Here is the complete text of Judge Mikva's order:

In my opinion, the term limits proposal was never more than a dumb gimmick: We already have term limits; we always have. They're called elections. If you and your neighbors don't like the bum you elected last time, at least in theory, you and your neighbors can always elect someone else. Of course, the theory falls apart when politicians control the redistricting process and draw districts that preserve incumbents in office. Instead of voters choosing their representatives, our representatives choose their voters. Republicans and Democrats alike are united in their opposition to nonpartisan map-making. As I wrote recently, "[N]othing lasts forever, especially in politics. The Republicans will presumably have their day again. Eventually. And when they get it, they don't want to have to deal with fairly drawn districts; they will want a chance to draw three Democratic incumbents into the same new district and see how they like it. Republicans want to pick friendly voters and hamstring their opponents just as badly as Democrats do."

The ballyhoo about the term limits amendment notwithstanding, the redistricting amendment was the one that really worried political professionals.

Fortunately for the political professionals, if not for the body politic, the redistricting amendment carried within it the seeds of its own destruction. In the linked post I put up earlier this month, I wrote, "This sentence in the proposed Amendment, for example, seems likely to cause trouble: 'For ten years after service as a Commissioner or Special Commissioner [on the Independent Redistricting Commission], a person is ineligible to serve as a Senator, Representative, officer of the Executive Branch, Judge, or Associate Judge of the State or an officer or employee of the State whose appointment is subject to confirmation by the Senate.'"

Judge Mikva's order today focuses on this provision as the major flaw in the restricting proposal. But the good news, potentially, in the court's order is that "a differently drafted redistricting initiative could be valid" (Order p. 11). There is still reason to hope.

Illinois Judges Foundation Summer Reception set for July 29

The Illinois Judges Foundation, the charitable arm of the Illinois Judges Association, will host its Summer Reception on Tuesday, July 29, from 5:30 to 7:30 p.m. in Corboy Hall at the Chicago Bar Association building, 321 S. Plymouth Court.

Proceeds from the reception will support the charitable and educational programs of the Illinois Judges Association, including in particular the Harold Sullivan Scholarship. Illinois Supreme Court Chief Justice Rita Garman, U.S. District Court Chief Judge Ruben Castillo, and Cook County Chief Judge Timothy C. Evans are scheduled to appear. Refreshments will be served.

Tickets for the event are $100 apiece and can be purchased online or by calling Christine Athanasoulis at (708) 705-4355.

Persons interested in becoming a sponsor of the event should contact either Kevin Fagan at ijf@chicagobar.org or Christine Athanasoulis.

Abbey Fishman Romanek gets a head start on her judicial career

Abbey Fishman Romanek won the Democratic nomination for the Preston vacancy in the 9th Subcircuit this past March. As with most nominees, there being but one contested judicial race this November in the entire county, Romanek faces no opponent in November.

Yesterday the Illinois Supreme Court appointed Romanek to a 9th Subcircuit vacancy -- but not the Preston vacancy. Absent further Supreme Court order, Judge Allan W. Masters holds that spot until the first Monday in December. Instead, Romanek has been appointed to the Meyer vacancy.

Romanek's judicial career begins on August 4. The Supreme Court's appointment will terminate on December 1, but that is the day that Romanek assumes the post to which she has been presumptively elected. (Anjana Hansen will fill the Meyer vacancy at that time.)

Cicruit Court Clerk Dorothy Brown's annual Expungement Summit set for this Saturday in Forest Park

Cook County Clerk of the Circuit Court Dorothy Brown will host an Expungement Summit on Saturday, June 7, from 8:30 a.m. to 6:00 p.m. at the Living Word Christian Center, 7600 W. Roosevelt Road, in Forest Park. Clerk Brown explains the many services that will be offered at this 10th annual Summit in this current North Town News Magazine interview.

Volunteer attorneys will be on hand to assist persons in completing their petitions to expunge or seal their records, or to assist persons in determining their eligibility for this relief (if you'd like a head start on the process, or wish to determine your eligibility in advance, Clerk Brown's website offers this procedural guide). The Cook County Public Defender, the Cook County State's Attorney, and the Office of the State Appellate Defender are among the public agencies who will have representatives on site. The Illinois Prisoner Review Board will also have representatives present to assist people who may not qualify for expungement but who wish to learn about Certificates of Good Conduct and Relief from Disabilities or to pursue executive clemency or pardon. In the NTNM video, Clerk Brown even mentions that some judges may be present, volunteering their time to rule immediately on in forma pauperis petitions that persons seeking expungement may wish to file in lieu of paying the otherwise-required fees for their petitions.

This is a very nice event, a blessing for the persons who may benefit from these services, and a blessing also for those who volunteer their time to assist. It's a good thing, and I don't mean to say a thing against it.

But.

If I have a house with a leaky roof and broken windows, the first improvement I would make is not planting flowers and decorative shrubs.

The Clerk of the Circuit Court's office is like a house with a leaky roof and broken windows.

Pull any file at the Daley Center -- if the file can be found in the first place, that is -- and examine the contents. I'm willing to bet that in any random sample of 10 files, you'd find five or six with misfiled papers; you might see misfiled documents in all 10. And don't even think about finding any recently filed documents, much less any recently-entered orders, in those files.

I do some civil appellate work. I can't tell you how often I have found the Clerk-prepared Records on Appeal to be incomplete, sometimes with documents vital to the appeal missing altogether. Yes, the Clerk's office has some very hard-working, helpful people that help attorneys like me work around these deficiencies and I am always grateful for that assistance. But I have needed it far too often.

The Clerk's Office maintains an electronic docket in civil cases which provides a rough -- often very rough -- approximation about what is going on in any given case. I also do some insurance defense work. Many times, in a case with multiple defendants, an insured may not be served until the case has been underway for some time. When I am then called in, I can't advise the insurer about the case status just by looking at the electronic docket, and all too often, especially in the smaller cases, I can't get the court file, or it's incomplete. (Court personnel apparently have access to better data than mere lawyers and the general public. I recall one incident within the past year where I told the learned judge presiding that there was no indication in the court file that my would-be client had ever been served. The judge, however, referring to the screen in front of him, said there was proof of service and, when I marveled at this, he asked, "Are you calling me a liar?" Yikes! I hastily explained that I was surprised because I knew there was nothing like this in the court file; I'd looked myself.)

Judging from conversations I've had with other attorneys, I know I'm not alone in my concerns about how things work, or not, in the Clerk's office. Ask around.

Until recently, the Clerk's Office used to allow papers in civil cases to be filed at either the Daley Center or any of the five outlying Municipal District Courthouses. Now, however, in order to file an appearance in a Markham case (6th Municipal District), one must drive to Markham. This makes no sense. The county did not suddenly splinter into six county-lets. Of course, this latest step backwards in customer service was meant as a not-so-gentle nudge for attorneys to use e-filing instead. As I reported here in February, Clerk Brown has urged the Illinois Supreme Court to make e-filing mandatory in Cook County by 2016. But the e-filing system offered by Clerk Brown's office is an expensive boondoggle, charging "convenience fees" even for filing allegedly no-fee documents and adding surcharges to filing fees even when the fee is paid by electronic withdrawal from an attorney's checking account. It is a system vastly inferior to the PACER system used by the federal courts.

Nor are the problems in the Circuit Clerk's office -- the broken windows and leaky roof -- confined to the keeping of records in civil cases. Last month I bragged about FWIW winning a Meritorious Achievement Award in the Online category at this year's Chicago Bar Association Kogan Awards luncheon. But the winners of the Kogan Awards in the Online category were Robert Herguth, Patrick McCraney, Dane Placko and Patrick Rehkamp for the BGA series "Disorder in the Bureaucracy of the Courts," concerning lost and missing papers necessary for criminal appeals. (Other entries in the BGA series also concerned the operation of Clerk Brown's office and are here and here.)

Last October, Cook County Sheriff Tom Dart blamed antiquated record-keeping by the Clerk of the Circuit Court Clerk's office for the the premature release of a number of prisoners. (In the October 13, 2013 editions of the Tribune, Mitch Smith reported that Clerk Brown responded in a statement that "repeated efforts to create an interdepartment electronic records system for the criminal court have been 'continually met with resistance or disinterest.'")

It seems to me, then, that the Expungement Summit is like a decorative shrub in front of a dilapidated house: It can be admired on its own merits -- and I hope Saturday's summit proves to be a great success -- but it doesn't patch the roof or fix the broken windows on the house.

Explanation offered for last week's order permitting note-taking in Cook County courtrooms

An FWIW reader left a link on my Facebook page to a May 16 Chicago Tribune op-ed by John Marshall Law School Professor Samuel V. Jones that may well explain why Cook County Chief Judge Timothy C. Evans entered a general administrative order last week expressly permitting the taking of notes in Cook County courtrooms. Professor Jones wrote about his experience in Judge Laura M. Sullivan's courtroom on May 8. An excerpt from Professor Jones' article:

Deputies spoke to members of the public as if they were inhuman. As one mother attempted to comfort her baby after she uttered a slight sound, one deputy yelled, "Take your baby out of the courtroom, now!" Children watched, fearfully, as their parents held them tighter. Others refused to make eye contact with the deputies. "Get out," some deputies roared.

Amazed by the unnecessary aggression, I wondered how such abusive conduct had escaped public scrutiny. Moments later, I received my answer. A deputy approached and impolitely inquired, "Are you an attorney"? I identified myself as a professor of law doing research. She responded, "There is no note-taking in here." Interestingly, the deputy had walked past a journalist taking notes in plain view.

Neither Judge Sullivan nor the deputies announced a ban on note-taking. I wondered if the deputy knew that "the right of the press to access court proceedings is derivative of the public's right," and journalists held no greater right than I did. I informed her that the office of the chief judge had advised me that note-taking is permitted. I asked if I had violated any laws or was disruptive. "No," she replied, and walked away.

Minutes later, two male deputies ordered me out of the courtroom and said they were confiscating my notes. After I politely inquired about their authority to do so, they took me back into the courtroom. One deputy approached Judge Sullivan and the proceedings immediately stopped. I was ordered to sit on a bench, told not to move or write, and was surrounded by several deputies.

You'll note that Professor Jones expressly referenced checking with the Chief Judge's office and verifying that note taking would be permitted. But, until last Friday, there was no express rule. Now there is.

Professor Jones was released -- with his notes -- after about 30 minutes. That recitation may make the detention sound trivial. And I don't mean to convey that; I'm sure it was no picnic, even for a former military man like Professor Jones. His John Marshall faculty bio notes that Jones is a "former U.S. judge advocate (MAJ, USAR (Ret.)) and former rifleman/scout (SGT, U.S. Marines)." I'm sure I would have been scared witless if this had happened to me.

But Professor Jones mentions that he was sitting in on a bond court hearing. Even a civil lawyer such as myself understands that a bond court is a high volume call, with many unsavory characters being shuttled in and out. (I am not forgetting about the presumption of innocence in every single criminal case but, rather, making an assumption based on the distressing, but well-documented, high rate of recidivism, that some, and perhaps many, of the persons being brought in for bond hearings on any given day have prior criminal convictions, and perhaps multiple convictions.) The friends and family present to support the defendants whose cases are on the call may or may not have had some prior personal contact with the criminal justice system. In a city as scarred as ours from incessant gang rivalry and violence, in bond court it would seem to make absolute sense to have multiple deputy sheriffs present and in high states of alert.

None of that excuses what happened to Professor Jones on May 8. But what we can't tell from this one sorry incident is whether it was a blip -- an exception -- a combination of a number of people having a particularly bad day -- or whether it is consistent with a pervasive pattern and practice of official rudeness in the courtroom. I sure as heck am not in a position to formulate an opinion on this.

On the other hand, Judge Sullivan is up for retention this year. You can bet that the several bar associations that vet retention candidates, both the CBA and the Alliance members, will be looking into the incident reported by Professor Jones and drawing their own conclusions.

Nor should any reader presuppose what the outcome of those bar evaluations might be. Judge Sullivan was first elected to the bench in 2002. She ran for the Appellate Court in 2012 and was found Qualified by the Chicago Bar Association. (She did not participate in the Alliance evaluation process in 2012.) So readers should avoid the all-too-human temptation to lock in a good-guy, bad-guy narrative here. Maybe this is a story without bad guys. Let's wait for all the facts. There will be more to this story later.

But, in the meantime, now that we have an order expressly permitting note-taking, does the new order really always and everywhere permit note taking by anyone and everyone in Cook County courtrooms?

One of the main reasons for the general cell phone ban in criminal courthouses was to prevent witness or juror intimidation. That makes sense. In the modern age, social media can get pretty antisocial awfully fast. And maybe it's just my imagination, but I can easily imagine circumstances where "note taking" could take on sinister implications as well. I'm not talking about note-taking by lawyers or members of the press but -- well -- maybe I have the wrong kind of imagination.

But I suggest that Judge Evans considered the possibility as well. That's why -- I think -- in an order that basically provides thou shalt permit note taking in court, Judge Evans included this last sentence, "Nothing in this order shall be interpreted to interfere with a judge’s ability to ensure that court proceedings are conducted with fitting dignity and decorum and without distraction, as required by Canon 3 of the Illinois Code of Judicial Conduct, Ill. S. Ct. R. 63, or to affect the sheriff’s responsibility to maintain the safety and security of the courtroom."

In other words, I believe, even after the adoption of the new rule, it still is up to the judge and the deputy sheriffs present in the courtroom to determine whether someone is taking notes for an improper purpose, such as to intimidate, harass or frighten a witness, and to put a halt to such behavior if it is observed. There is now an express presumption in favor of note-taking, but it is not an unqualified right. Or am I missing something again?