Saturday, August 20, 2016

Not vindicated, but spared; Judge Santiago censured by Illinois Courts Commission

In an order released Thursday (click here to access), the Illinois Courts Commission censured Judge Beatriz Santiago for violations of Canons 1 and 2 of the Code of Judicial Conduct, Supreme Court Rules 61 and 62. For the non-lawyers who follow along here, the censure order means that the Courts Commission agreed that Judge Santiago was guilty of misconduct, but did not deem that misconduct sufficient to remove her from office.

Questions of residency had dogged Santiago since she announced her 6th Subcircuit judicial campaign in the Fall of 2011.

The timeline provided by the Courts Commission Order serves as the basis for the summary that follows.

Santiago, a career Assistant Public Defender before being slated for the bench, bought a house in 2005 on Spaulding Avenue. The house was in walking distance of the home where she grew up, on Potomac Avenue, but it was just a couple of blocks outside the 6th Subcircuit (it was just inside the 7th Subcircuit, if that's of vital import for you). She fixed up the house and moved in and lived there just like anyone else would live in their own house for a number of years.

But then Santiago was slated to run in the 6th Subcircuit. She could not continue to live in her own home and run for judge in the 6th Subcircuit. Goodman v. Ward, 241 Ill.2d 398, 412, 948 N.E.2d 580 (2011). So, she said, sometime in August or September 2011, she moved back to her parents' home.

Several other candidates coveted the vacancy for which Santiago was slated. Two challenges were filed to her candidacy, at least one of these asserting that Santiago lived in the house that she owned and not, as she claimed, back with the folks. The Courts Commission quotes from the hearing officer's opinion in one of those challenges in its August 18 Order, at p. 2: "The hearing officer found that despite 'a number of facts regarding [respondent's] residency that are not entirely plausible,' there was not sufficient evidence to 'conclusively establish' that respondent did not reside at the Potomac property." The Cook County Electoral Board adopted the hearing officer's findings and recommendation and Santiago was permitted to remain on the ballot.

And, of course, she won.

But she still had the house on Spaulding.

So, in June 2013, after taking judicial office, Santiago decided to refinance her mortgage on that property. She submitted a loan application to American Equity Mortgage (AEM). In the loan app and accompanying documents, Santiago made the following representations (Order, p. 2):
  • in Section II, that the Spaulding property would be her "Primary Residence,"
  • in Section III, that the Spaulding property was her "Present Address," and
  • in Section IV, that she owned the Spaulding property as her primary residence.
The lender did a background and credit check and (p. 3) "discovered that most of the documents accompanying respondent's application, including pay stubs and proof of employment, showed respondent lived at the Potomac property rather than the Spaulding property." It asked for an explanation. In two letters requested by the lender, Santiago said she just used her mother's Potomac address for work-related issues, and that it was a former address. On August 9, 2013, Santiago completed and signed an occupancy certification that the lender provided. On that same day she signed a "mortgagor's affidavit" in which she certified, "I presently occupy, or intend to occupy, the subject property as my principal residence, and am not now considering any proposal to sell subject property to third persons." All the while, though, Santiago continued to live on Potomac.

FWIW readers will remember what happened next: WGN-TV and the Medill Watchdog Group collaborated on a series entitled "Judging the Judges." Prominently featured in the series were stories about subcircuit judges who might have moved, for one reason or another, from the subcircuits from which they were initially elected. I wrote about the series; from this archived post you can still read what WGN and Medill Watchdog had to say at the time about Judge Santiago's mortgage (I had not mentioned her by name in my post).

The Court Commission's August 18 Order notes (pp. 4-5) that, after the WGN pieces aired, Judge Santiago took corrective action. First, she repaid the homeowner's exemption on her taxes (she'd improperly claimed that, too) and, second, she notified her lender that she was not living at the property after all.

And Santiago's lender turned out to have a corporate heart of gold: It did not prosecute her for fraud but instead "attempted to help her rectify problems resulting from her claiming the Spaulding property [as] her primary residence" (p. 5). The lender did not even require Judge Santiago to refinance; although the lender acknowledged in writing that it had been notified that Santiago was not using the Spaulding home as her primary residence, the mortgage would be left as is.

Since then, Santiago has sold the house on Spaulding and bought another one safely within the confines of the Sixth Judicial Subcircuit. The tainted mortgage is gone.

Judge Santiago testified at her hearing before the Courts Commission (p. 5), "she never deliberately intended to deceive AEM, but admitted she was 'careless' in signing the mortgage documents. Respondent signed the 2013 mortgage documents in a room in the courthouse while she was on her lunch hour, and the entire process took only ten to fifteen minutes. She said she was rushed and did not actually read the documents, but just signed in the places she was required to sign. Respondent testified she has been humiliated and embarrassed by the incident, and she has been humbled. She testified her career has basically been ruined because she failed to read the mortgage papers prior to signing them." Santiago told the Commission that her entire legal career has been spent in the area of criminal law; she "knows little about real estate law" (p. 5).

The Commission stressed that most of the evidence in this case was stipulated to and most of the facts in the case undisputed. Because Santiago did not really contest the Judicial Inquiry Board's allegations of violations, the Commission saw its task as merely determining what sanction to impose. The Commission noted (p. 8), "Respondent engaged in consistent hedging and her candor was reasonably in question." On the other hand, the Commission noted (p. 9), Santiago's "actions and omissions were not related to her official duties. Further, there is no indication in the record of any prejudicial impact to any litigant appearing before respondent. * * * There is no contest in the record that the actions of respondent are not likely to recur and the financing situation, as well as the question of residential qualification, appear to have been resolved."

The key passage in the Order may be this one, at p. 7:
At a minimum, respondent knew or should have known of her residency problems when she faced a challenge to her candidacy for circuit judge of the Sixth Judicial Subcircuit in the 2012 election. Subsequent to that, however, the record shows that in her disclosures, in order to secure an FHA loan, she designated the Spaulding property residence as "primary." Respondent argued that her actions could be characterized as careless. Given, however, the highlighting of her residence problems in the electoral challenge to her candidacy, one could reasonably characterize her activities as reckless. In effect, respondent got trapped. Her response to her situation only made her situation worse. She could be charged with reasonable notice of her problem due to the electoral challenge; however, the documents that she executed and the representations she made to AEM aggravated rather than corrected the situation. Respondent argued that ultimately no harm was done to AEM as all obligations were paid in full as the house was sold for more than the original obligation. We note, however, that her actions, taken in order to qualify for an FHA loan as opposed to a regular residential loan and the subsequent financing resulted in financial benefit to her. We also note the corrective actions were taken only subsequent to exposure of her residency problems by the media.
Now, for the non-lawyers, and even for the lawyers-who-are-not-judges who may happen on this post, let me suggest to you that it may not go so well for you if you misrepresent your residency plans in a mortgage application and the mortgage company finds out about it. Or if the county finds out that you're claiming a homeowner's exemption on property where you don't reside. But Judge Santiago has been spared; she has the opportunity now to resume her judicial career and restore her reputation.


Anonymous said...

Great. Another win for Judge Santiago and Papa Joe Berrios. Not many candidates have the Chairman of the Cook County Democratic party lend you Scott Cisek, the executive director of the Democratic Party (aka "the Machine") to run your judicial campaign. Slated over better qualified candidates? Not a problem. Ballot issues? Not a problem. Board of Election challenges? Not a problem. Move back home to take care of Dad and run for Judge? Not a problem. In fact, it is wonderful. Make false statements to your mortgage company? Not a problem. Sign false affidavits? Not a problem. Claim a homeowner's tax exemption on a property you do not live in? Not a problem.

If history is a guide on this blog, get ready for a comment or two defending Judge Santiago and claiming that the only reason she was prosecuted in the first place is because she is Hispanic. Not a problem.

Collect a $187,000 salary for life? Not a problem. Thank you Papa Joe Berrios. Looking forward to your 2018 slate! Not a problem.

Anonymous said...

The only reason she was prosecuted in the first place is because she's Hispanic.

Anonymous said...

Well, at least a couple of you cannot blame the Black Women Lawyers or the Cook County bar for this one. And you wasted no time pointing out that she was Hispanic. smh

Anonymous said...

I would like to go on the record:

1. Judge Santiago is Latina.
2. Latina means female Hispanic.
3. Judge Santiago is not a member of BWLA or CCBA.
4. But Judge Santiago is a member of PRBA.
5. Judge Santiago has a black robe.
6. When not wearing her robe it is hanging in the closet.
7. Sometimes Judge Santiago's robe is hanging at the dry cleaners.
8. Judge Santiago does not let anyone wear her robe except once on
9. But that was at a party in Humboldt Park.
10. Humboldt Park is far away from the Markham courthouse.
11. In conclusion, The ONLY REASON Judge Santiago has been persecuted
and prosecuted is because she is Latina (which is Hispanic).

- Gracias

Anonymous said...

And the only reason former judge Frank Golniewicz was prosecuted because of his false claims about the subcircuit he lived in was because he was Polish. Give me a flippin' break.

Anonymous said...

This means that she'll win retention with only 67% of the vote instead of 76% of the vote in 2018.

Speaking of subcircuits, has anyone done an analysis of how our of whack they are relative to "one man one vote"? We've gone 2 censuses without a remap, so I'm surprised there havent been any Federal Court challenges.

Someone dropped the ball by not including redistricting in the original legislation, and now the major impediment is the black caucus in Springfield, as the relative Cook County black population has dropped while the Hispanic population has increased over the past 25 years

Anonymous said...

This case was a class issue. Nothing more, nothing less.

The well-healed pay for their homes in cash. No mortgages. No paper trails. No nothing.

Judges from every sub-circuit and county-wide (and even some from outside of Cook County) have gotten away with out-of-district addresses for decades because they never had to take out mortgages and write those pesky little "letters of explanation" that the J.I.B. loves so much.

So this wasn't so much about race, ethnicity or gender as much as it was about a working class judge that had to get a loan from the bank because she wasn't born into a wealthy family, didn't marry into money or worked for a big fancy-pants law firm before becoming a judge.

So the J.I.B. and their elitist prosecutor from one of those fancy-pants law firms (Sidley-Austin) put her through the wringer. Shame on them for perpetuating the notion that only the upper-crust should aspire to the bench. That all others need not apply.

Well thank God for an elected judiciary. Can you imagine if we had "merit selection" which is code-talk for anointing only the elitist and entitled. I would hate to think of what our courts would look like if only the privileged were allowed to serve. Those judges usually make for bad law because they are out of touch with the people they are supposed to serve.

As for me, I'll take my chances with a regular person from our regular neighborhoods anytime. I have no confidence in judges I have absolutely nothing in common with.

As always, E.P.

Anonymous said...

E.P., has just the right balance of insight and cynicism and usually hits a home run with his/her posts, but I have to disagree with most of this one.

E.P. and I must run in different circles. I don't know too many well-healed judges who paid cash for their homes. Every cycle or so, there are one or two judicial candidates who are well-healed.

One can make a class argument for many alleged infractions of the law. You wouldn't get a DUI if you had a driver, you wouldn't shoplift Twinkies is you weren't broke and you wouldn't have to visit an Archer Avenue "spa" if you were a billionaire real estate magnet and could buy a beautiful wife from Slovenia.

Yes, one could argue that one would not need a mortgage if one were wealthy, but one's wealth or lack of it typically does not affect how one answers mortgage application questions.

If you do any jury work, you know that jurors look for hooks to easily label parties. We like to attribute reasons for things that are simply untrue. For as many people who claim a particular judge was singled out because of her ethnicity, you can probably find an equal number of people who will say she got away with a slap on the wrist because of that ethnicity. And while you might call $187,000 a year for a 9-5, M-F job a "working class" wage, I am sure you can find many people who would call that "well-healed."

I don't think the JIB set out to find a judge who -- gasp -- took out a mortgage for his or her home, and I don't believe they set out to isolate a particular race or gender.

Sometimes when we make a mistake, the best thing to do is simply fess up and acknowledge the error without looking for reasons why we were caught.

Anonymous said...

This is why I vote NO to every retention judge, like our very masculine and well-endowed Governor BRUCE RAUNER.

Anonymous said...

Is it possible at all the Judge Santiago was charged with misconduct because she lied, and lied, and lied?
I wonder what she might have done with a person before her in court who lied, and lied, and lied.

Jack Leyhane said...

@E.P. -- I don't disagree with your concerns over 'merit' selection and the possible elitist or ideological (or elitist and ideological) bench that might result.

But let me say this: I don't practice in the area of criminal law. I've never been a Public Defender or ASA. I have probably appeared as counsel in a non-traffic, criminal matter less than 10 times in 36 years. However, even without studying criminal law, I know that, if I am at a golf course, playing golf with a partner, and I give a good whack to the golf ball with my 9-iron, that's OK. On the other hand, even without studying criminal law, I know that if I give that same good whack my to partner with that same 9-iron, I will be arrested and prosecuted for battery (at least).

So when someone fills out an application and says the house to be mortgaged is my primary residence and, when questioned about it, doubles down, and then says, well, I only do criminal law, I don't do real estate law, I have a problem.

It is entirely believable that the closing on the loan to refinance the house was done in a short period, over the lunch break, and that documents were not carefully examined at that time.

But that's not when she completed the application for the loan and made the initial misrepresentation, nor is that when she wrote not one, but two letters digging herself in deeper.

If I were a cynic, I'd almost believe she really was intending to move back into that house (in the neighborhood, yes---which distinguishes her situation from the Golniewicz case---but still in the wrong subcircuit) and if I were really cynical I'd be tempted to believe that maybe she never really moved back in with the folks. Otherwise -- as she eventually did when WGN and Medill Watchdog and then the JIB came after her -- she would have put that house up for sale and bought another house within the subcircuit.

But I am not a cynic. I am Dr. Pangloss, the naive and hopeful optimist who sees the good in all people and all things, right?

But I still have a problem with bank fraud. You do not need to have engaged in the study of real estate law to know whether you do or do not live in the house you intend to mortgage. The judge had just survived---barely---a residency challenge. To make these misrepresentations---and I assume, as did the Courts Commission, that these were misrepresentations, because if they were not the Courts Commission would have removed her from office---after being elected makes me just a teensy bit angry.

Judges should be purer than Caesar's wife---above suspicion. This was an entirely preventable episode. She knew what she had to do; she ultimately did it. Just follow the darn rules. As my mother used to say, tell the truth and shame the Devil. Don't make misrepresentations, particularly under oath (she signed an affidavit, too, remember?).

The important thing, for her, is that she survived. She can learn from this. She can still have a useful career. I wish her well. But she is not the victim of any elitist conspiracy, E.P.; sorry.