Blogger says it took 941 days to get from 1,000,000 to 2,000,000 page views here on FWIW.
It took another 951 days to get from 2,000,000 to 3,000,000. When I started this post, I had 3,002,783 page views. Here's the screenshot from my blog dashboard:
That seems like a milestone worth mentioning. So I'm mentioning. Thank you for stopping by.
In a press release issued Friday evening, the Cook County Chief Judge's Office advised that another judge and 10 employees of the Office of Chief Judge have tested positive for COVID-19. Three residents of the Juvenile Temporary Detention Center also tested positive.
With this announcement, 115 employees of the Chief Judge's Office have tested positive for COVID-19, including 50 employed at the JTDC. Additionally, five judges and 36 JDTC residents have tested positive.
I suspect a lot of us are getting numb to numbers like these. I am.
We are into, now, our eighth month of what was sold as a two-week shutdown.
I was anxious at the outset, confessing that, on the morning before the primary, I just couldn't summon my usual enthusiasm for the election. Why the heck were we proceeding with our unnecessarily early Illinois primary if it was unsafe to go to work, go to school, dine out, hold the St. Patrick's Day parades, conduct the NCAA basketball tournament, start the baseball season, travel....? We were all required to put our lives on hold -- just as soon as we voted.
That same day, March 16, the Illinois Department of Public Health announced 12 new cases of coronavirus. Twelve. The first COVID-19 death in Illinois was announced on March 17.
Yesterday, Saturday, October 24, the State announced 6,161 new cases. Sundays, like today, typically have lower numbers than those reported in the immediately preceding days and today is no exception: only 4,062 new cases were announced today. Only. Just 338.5 times the number of cases reported on March 16. As opposed to yesterday, when the number of new cases was over 513 times the number of cases on March 16.
And 9,504 people have died from the virus, according to the IDPH, since that first death was announced on the Feast of St. Patrick. The numbers spiked for awhile, as the following Google graphic shows, but even as the numbers of cases has climbed to record heights, the numbers of deaths have subsided somewhat.
(Sharp-eyed readers will note that these numbers will not track exactly with those reported by the IDPH. But they are close.)
There have been a lot of reasons advanced for the decrease in COVID-19 fatalities. Among these,
- The virus has mutated and is not as dangerous as it once may have been (there is certainly some evidence that the virus has mutated, perhaps several times, since it has gotten loose in the world, but the jury is out on the question of whether the mutations are really less dangerous);
- More widespread testing has discovered more, but less serious, cases (certainly the number of tests administered has increased in Illinois, if not everywhere);
- Doctors are doing a better job of treating the disease. (Remember ventilators? In the early days of our shutdown, the State of Illinois was chartering flights to China to acquire ventilators and other medical supplies. Except that people on ventilators had a distressing tendency to die anyway. Promptly putting patients on their stomachs instead of their backs seemed more helpful in many cases. And other therapies and medications have been deployed with increasing success, after trial and often heartbreaking error.)
The most accurate explanation may involve some combination of all these factors.
But just because the disease seems not to be as fatal, the disease is still maddeningly disruptive. Many people are asymptomatic -- the Chief Judge's press release Friday was careful to note, "Most JTDC residents who have tested positive have been asymptomatic" -- but others are forever changed by the virus. They get better... but they don't seem to ever get well. And there does not seem to be anyway of figuring, in advance, who is likely to have lingering problems, sometimes quite severe, and who is likely to bounce back whole.
Now the holidays are imperiled. Bars and restaurants, only newly reopened, are being closed down again (no on-premises service) in Chicago's suburbs. New restrictions are being imposed on bars in Chicago (but, don't worry, cannabis consumption and cultivation remain essential industries). I am so sorry for our friends and neighbors who own restaurants or bars, or work in them, or who otherwise work in the hospitality or tourist industries.
Science will, probabaly, and maybe even soon, come up with a vaccine. But it's not here yet. Meanwhile, the only way that we can help ourselves, and our neighbors, is to wear a mask. So wear a mask.
And 43rd Ward Ald. Smith offers no endorsement in the race for Cook County State's Attorney.
The following are excerpts from a much longer email; Ald. Smith's entire sample ballot can be viewed as a webpage.
Ald. Smith's explanations for her suggested "no" votes can be found at the link above.
Because these are images, the links in the images don't work. But the reference to the "report issued in 2018" tracks to this link; you'll have to scroll down a bit to the heading "Juvenile Crime Statistics" to see report in question.
FWIW readers are continuing to respond to my "pics or it didn't happen" request for palm cards, and I am grateful. If you have a card to send, scan or photo it and email it to me at jackleyhane@yahoo.com. And please feel free to forward any endorsement emails you may receive.
FWIW readers are continuing to respond to my "pics or it didn't happen" request for palm cards -- thank you. If you have a card to send, scan or photo it and email it to me at jackleyhane@yahoo.com.
This 17th Ward card would not be at all newsworthy---strictly following the Party line as it does---but for the many comments I'm getting about one ward or another dumping this other retention candidate or that one. Some offer very detailed scenarios -- a costumed mannequin carrying a sign in front of one ward early voting site -- a banner attacking another retention judge outside the Super Site -- big signs with lots of suggested "no" votes outside another early voting location. Some of the elaborate storlyines in my comment queue read more like political fan fic than actual news -- but that's why I asked for pictures in the first place. So keep sending them in.
FWIW readers are responding to my "pics or it didn't happen" request for palm cards -- thank you. If you have a card to send, scan or photo it and email it to me at jackleyhane@yahoo.com.
This one, strictly speaking, isn't a palm card. It appears to be an image of an email from 19th Ward Ald. and Committeeman Matthew J. O'Shea. Because it is only an image, the links shown above are not "live."
O'Shea breaks ranks with the countywide party in two ways here -- both by encouraging a "yes" vote for Judge Michael P. Toomin, officially dumped by the Cook County Democratic Party, and by seeking a "no" vote on Judge Diana L. Kenworthy. (O'Shea also requests a "no" vote for Mauricio Araujo -- but Araujo, who was also dumped by the Party because he was facing removal in a trial before the Illinois Courts Commission on charges of personal misconduct, has, as noted in the text of O'Shea's email, already resigned his judgeship.)
Kenworthy is endorsed for retention by the Cook County Democratic Party. She is also rated qualified for retention by the Chicago Bar Association and all 12 members of the Alliance of Bar Associations for Judicial Screening. She was found Recommended for retention by the Suburban Bar Coalition.
FWIW readers are responding to my "pics or it didn't happen" request for palm cards -- thank you. If you have a card to send, scan or photo it and email it to me at jackleyhane@yahoo.com.
This 34th Ward card would not be at all newsworthy---strictly following the Party line as it does---but for the request for a "no" vote for John J. Mahoney's retention bid.
Mahoney is officially endorsed for retention by the Cook County Democratic Party, and he has been rated qualified for retention by the Chicago Bar Association and eight of the bar associations in the Alliance of Bar Associations for Judicial Screening, including the Chicago Council of Lawyers. But four Alliance bars turned thumbs down on Mahoney, including the Illinois State Bar Association. The Suburban Bar Coalition has also recommended against Mahoney's retention.
People -- always named Anonymous, of course -- are offering comments to this blog about this judge being left off the palm card in that ward, or that Judge So-and-So is a "no" in XYZ Township or in these three wards. I've run a couple of these so far, albeit reluctantly. I can't verify the assertions and there's no way to hold "Anonymous" accountable for any inaccurate assertions.
In fact---you may have heard this---some people just flat out make stuff up and try and spread it on the Internet. Like manure on a field, sometimes it helps stuff to grow. Of course, what takes root in the field may be good for you. What takes root on the Internet is often just more manure.
Anyway, the group that posted this card on Facebook noted (with some alarm) the absence of State's Attorney Kim Foxx. If I can judge by the lawn signs I see on my daily walks in the 41st Ward, Ms. Foxx is not going to poll well here. So I assume the omission was not accidental.
As Tip O'Neill said, all politics is local.
What's the story in your locality? Don't tell me about it -- show me -- as the young people may actually still say, 'pics or it didn't happen.' Send scans or pictures of palm cards you'd like to share to FWIW at jackleyhane@yahoo.com. And thanks for sharing.
P.S. -- If you'd like credit, don't hesitate to ask. And, if you prefer to remain Anonymous, I'll try to pretend to be unsurprised, but I'll respect your wishes.
It's OK to admit it: You're sick of the election, aren't you? Many of you reading this have already voted, whether by mail or at an early voting site, but the commercials are still running, incessantly, on your TV.
If you are sick and tired of this election, you are not alone. Law.com is running a survey (through October 23) seeking to measure just how this election is impacting your mental health.
What worries me most is the rising fear, indeed a rising expectation, of violence from persons disappointed in the result. Whatever the result may be. The Chicago Police Department is reportedly canceling days off and preparing for 12-hour days immediately after the election. I wrote last month about the Transition Integrity Project "war-gaming" scenarios assuming that President Trump will contest the result of the national election by legal or extra-legal means. Of course, that assumes Trump can't actually win. Most of us assumed that Trump couldn't win in 2016, too. I did.
If Trump loses, there may be riots, commotion, and chaos. If Trump wins, there may be riots, commotion, and chaos. If the result is not clear for days after the election---and, given the unprecedented numbers of mail-in ballots in this Year of Never Ending Pandemic, this seems a safe bet---there may also be riots, commotion, and chaos.
It's one thing to have a hotly-contested election. It's quite another to have a hotly-contested election where both sides take pains before the election to cast doubt on the legitimacy of the outcome. As is happening here and now. And then to add the likely prospect of political violence -- well, current events can't help but put one in mind of the beginning of the end of the Roman Republic.
The Roman Republic lasted a long time, dating from 509 B.C., when Lucius Junius Brutus drove the last Roman king, Tarquin, into exile, until sometime after March 15, 44 B.C., when Marcus Junius Brutus, a descendant of that first Brutus, helped to murder a chap by the name of Gaius Julius Caesar.
Some historians date the end of the Republic to 27 B.C. when Julius Caesar's grandnephew Octavian (adopted as Caesar's son by his will) consolidated his power as Princeps, Augustus Caesar, and Imperator, but vestigal Republican forms continued for some time thereafter: Caligula may or may not have sought to appoint his horse as consul, but the office still existed at that time.
But the point is that political violence increasingly plagued Republican Rome in the decades following the final destruction of Carthage and the conquest of Greece, both in 146 B.C.
Roman politicians arose who placed personal ambition ahead of the needs of the State. The courts were increasingly used by election winners to prosecute their predecessors and/or their political opponents. The legitimacy of election outcomes were challenged. When elections were not postponed, or cancelled outright, because of unfavorable auspices (conveniently allowing time for GOTV efforts), violent mobs were increasingly employed to intimidate opposing voters at the polls. The progressive (or radical, depending on which side you were on) legislative proposals of the Gracchi, both eventually victims of political murder, were soon followed by the rise of Marius and then the civil wars between Marius's supporters and the supporters of Lucius Cornelius Sulla. Sulla won, and political violence became state violence, as Marian supporters were "proscribed" (murdered wherever they could be found, their properties forfeit to the Roman State). (Young Julius Caesar was a nephew of Marius; he lost his priesthood and his inheritance, but Sulla was persuaded to spare his life, allowing Caesar to embark on his military career.)
Are we entering the last days of our Republic? The Romans of the Late Republic were bedeviled by rising income inequality -- vast gulfs opened, and widened, between the richest citizens, who became masters of huge latifundia, and the poorest, who became increasingly dependent on bread handouts just to survive. Immigration became a vexing problem as the population of Rome swelled and politicians became increasingly embroiled in the question of just who was entitled to claim citizenship. The inability to find peaceful, political solutions to those problems doomed the Roman Republic -- and those issues are eerily echoed in our own. It is easy to lose hope.
But my son, Jim, a middle school history teacher in Markham, recently loaned me a biography of Henry Clay (Henry Clay: The Man Who Would Be President, by James C. Klotter). And it has somewhat revived my flagging spirits.
I assume that Clay -- elected Speaker of the House in his freshman term in Congress, 1812 War Hawk, Senator, Secretary of State, advocate of federally-funded internal improvements, opponent of the Indian Removal Act of 1830 and of the Mexican-American War, a founder of the Whig Party, and unsuccessful presidential candidate -- needs no introduction for most FWIW readers. If nothing else, Illinois residents should know Clay as Abraham Lincoln's political hero and inspiration.
Reading about Clay's bitter presidential campaigns -- the media disotrions and outright lies, the slanders, the partisan fury and hatred-- helped me remember we've been through this before. Vote fraud, too. In the 1844 election, one Louisiana parish had fewer than 400 registered voters -- and cast well over 1,000 votes for Clay's opponent, James K. Polk. There were contentions that the Democrats were harvesting votes from improperly naturalized Irish immigrants in New York City. There were allegations that new Irish immigrants were being allowed to vote for the Democratic ticket without even bothering with citizenship formalities. Polk narrowly carried New York State, too.
In the election of 1824 the Electoral College really failed -- it not only failed to deliver the victory to the top vote getter, it did not decide the race at all -- and the election was dumped into the House of Representatives, which had to choose among the top three vote getters. Having finished fourth, Clay was not eligible to win. But he helped engineer the victory of John Quincy Adams over William H. Crawford and Andrew Jackson. When Clay was appointed Secretary of State, Jackson supporters claimed Clay and Adams had engaged in a "Corrupt Bargain" and Clay and Jackson, already bitter rivals, became implacable foes. Clay was certain that Jackson would become an American Caesar. But he was wrong. Thankfully.
The point is that, as bitter and vitriolic as politics are this year---and they are---we've been through some really awful national elections before, too. And the nation survived. And we will again.
Chicago Votes bills itself as a "non-partisan, non-profit organization building a more inclusive democracy by putting power in the hands of young Chicagoans. We're engaging and developing a new generation of leaders by opening the doors of government and politics to young people from all corners of the city. We're changing laws to make Chicago and Illinois a better place to be young, and in the process we're making democracy FUN." The organization's website has an "Accomplishments" page where the curious can investigate what "making democracy FUN" means.
Two Chicago Votes officers were on last Friday's Livestream. Also on that program was Injustice Watch Co-Founder Rick Tulsky.
Presumably, then, it is no coincidence that the Injustice Watch Check Your Judges Guide has been adopted by Chicago Votes' Vote Center -- to the point where any judicial candidate listed in red is either "not qualified or flagged by Injustice Watch," even for candidates unanimously approved by all evaluating bar associations. (The reader will have to scroll down a bit to get to the judicial candidate list on the Chicago Votes site.)
Some judicial candidates are listed in blue on the Chicago Votes Vote Center. Some of these are former public defenders, as identified by Injustice Watch, who have unanimously positive bar ratings -- but by no means is this true of all of these. As near as I could tell, however, every former State's Attorney, as idetified by Injustice Watch, at least on the retention ballot, is listed in red.
Even if things were going great before the world ended this past March, things might not be so good right now.
And if things weren't going so great before we started into this two week shutdown, on which we are now in our eigth month, well, you're not alone. And, if this sort of we're-all-in-this-together bromide is not enough to help you face the redundant challenges of another damned day ending in 'y', the Lawyers Assistance Program is there to provide actual help, on a completely confidential basis.
A portion of every Illinois lawyer's annual registration fee goes to help fund LAP's mental health, substance abuse, and addiction services. But these funds were not enough to allow LAP to maintain the levels of service it provided in the Times Before. LAP has traditionally hosted a large fundraising dinner to make up that difference -- but that's not possible right now. Yet, in this Year of Never Ending Pandemic, LAP's needs are greater than ever.
Accordingly, LAP is asking the legal community to "financially support LAP and its mission, so that LAP can continue to expand its services throughout the State to judges, lawyers and law students."
Even in 'normal' times, LAP notes, "attorneys, judges, and law students are three times more likely to suffer from depression, anxiety, chronic stress, suicidal thoughts, alcohol or drug misuse compared to the general public. LAP’s expert clinical team provides quality care to all legal professionals while facing the ongoing challenges of the pandemic, saving lives, careers and the dignity of legal professionals."
LAP is asking for help so it can keep on providing help. If you can help, click here for a link to the Donations page on the LAP website.
Today's program is the second of three planned forums planned by the Collaboration for Justice, a partnership of the Chicago Council of Lawyers and Chicago Appleseed.
Organizers have provided this description of the reasons and purposes of today's event:
A high-quality judiciary - the foundation of equitable and effective courts - relies on public oversight of the performance of sitting judges. In Cook County, some judges are elected by the public on a countywide or precinct (“Subcircuit”) basis; others - Associate Judges - are peer-elected by a majority of sitting judges after an application process. Associate Judges submit applications to the Illinois Supreme Court at the end of their four-year term in order to be retained, whereas Circuit and Subcircuit judges must campaign for reelection every six years (for all three types of judges, nearly all who run for retention are retained).
In 2013, a Chicago Appleseed analysis of the 397 sitting judges in Cook County suggested that the Associate judge process was leading to a higher-quality, more diverse judiciary than did the public election process, but more recent findings show no real difference in the racial composition of judges - regardless of whether they are appointed or elected. In order to make informed ballot decisions, the public must have access to transparent and objective reports of individuals judges’ histories, behaviors, and practices. Join us as we discuss the importance of voting for judges and speak with legal experts, journalists, and civic organizers about strategies to improve and diversify - in more than just a representative way - the Cook County bench.
Just a little clarification here: Associate judges do not ordinarily have four year terms when initially chosen. Per Illinois Supreme Court Rule 39(a)(1), the terms of all associate judges across the state expire "on June 30th of every fourth year subsequent to 1975 [presently June 30, 2023], regardless of the date on which any judge is appointed." Associate judges seeking to remain in office do not apply to the Supreme Court; rather, they must submit, per Rule 39(c)(1), "a request for reappointment with the chief judge of the circuit at least three months but not more than six months before the expiration of his or her term." The chief judge certifies the names of the candidates seeking retention to the Director of the Administrative Office of the Illinois Courts, and the Director prepares and distributes a retention ballot to each circuit judge in that circuit (Rule 39(c)(2)). An associate judge must secure "yes" votes from three-fifths of the circuit judges voting in order to be reappointed (Rule 39(c)(3)).
Also, the distinction between subcircuit and circuit judges evaporates at retention time: All face the entire county electorate.
In any event, Mari Cohen, an Assistant Editor of Jewish Currents and an author for South Side Weekly, will be the moderator for today's program.
Panelists will include Stevie Valles and Jen Dean, the Executive Director and Co-Deputy Director, respectively, of Chicago Votes; former Judge Travis Richardson; Rick Tulsky, a Co-Founder of Injustice Watch; and Malcolm Rich and Elizabeth Monkus, the Executive Director and Development and Access to Justice Program Coordinator for Chicago Appleseed. (Rich is also the Executive Director of the Chicago Council of Lawyers.)
Here's the link for the program.
The Soul Slate PAC is out with its general election endorsement list.
Nine Cook County judges seeking retention are on the slate, Cassandra Lewis, Donna L. Cooper, Jackie Marie Portman-Brown, Dominique C. Ross, Cynthia Y. Cobbs, Andrea M. Buford, Kristal Rivers, Steven G. Watkins, and Judith Rice.
Each of these judges, with the exception of Portman-Brown, has been found qualified for retention by the Chicago Bar Association and all 12 members of the Alliance of Bar Associations for Judicial Screening. Portman-Brown, who is currently assigned to administrative duties pursuant to the order of the Circuit Court Executive Committee, is rated qualified for retention by the Chicago Bar Association and the Chicago Council of Lawyers.
Owing to complications arising from this Never Ending Year of Pandemic, the CBA did not issue narratives explaining its ratings for judges seeking retention. The CCL, however, did. Of Judge Portman-Brown, the Council stated:
Prior to becoming a judge, Hon. Jackie Marie Portman-Brown was general counsel at the Independent Police Review Authority from 2005 to 2008. From 1998 to 2005, she served as an Assistant Cook County State’s Attorney Judge Portman-Brown has served as thee Presiding Judge of Adult Redeploy Illinois for the First Municipal District as well as the Presiding Judge of the State’s Attorney Office Deferred Prosecution Program. Some attorneys report that she is knowledgeable about the law and innovative, and that she applies the law with compassion. But other attorneys noted a pattern of judicial behavior demonstrating a lack of professionalism and some accused her of pre-judging cases.
In 2020, the Executive Committee of the Circuit Court referred a matter to the Judicial Inquiry Board. In a highly publicized situation Judge Portman-Brown had her grandniece locked in the lockup behind her courtroom as part of a discipline. Judge Portman-Brown has expressed regret for her actions; the JIB investigation is ongoing.
Her behavior on the bench has been described by some as quirky, but effective. Some lawyers praised her fairness on the bench in criminal law matters – particularly during the time after 2018 when she was assigned to a primarily narcotics courtroom in the Felony Trial Criminal Division. Her detractors say she is erratic and unpredictable. The Council has balanced the positive reviews Judge Portman has received against those who question her judgment. The Council on balance finds her Qualified for retention to the Circuit Court.
Four other Alliance members have joined the Council in recommending Judge Portman-Brown's retention. The other seven members of the Alliance, however, including the Illinois State Bar Association, are urging a "no" vote on Portman-Brown, as are the Chicago Tribune and the Suburban Bar Coalition.
For what it's worth, the Suburban Bar Coalition found the other eight judges highlighted on the Soul Slate "Highly Recommended" for retention.
Like so many other cultural institutions in Chicago, the Polish Museum of America is currently closed on account of the Never Ending Pandemic.
Understandably, this has put a sizable crimp in the plans of the Advocates Society to hold its annual Judges Night at the museum, as it has done recently.
So, instead, the Advocates will hold a virtual Judges Night on Thursday, October 29, starting at 5:30 p.m. This year, the event will be free -- but the Advocates are asking attendees to make a donation of $10 or more to the Polish Museum of America.
There is a bit of a trick to this, the Advocates have disclosed.
On the home page of the museum website, there is a "DONATE" button -- but the minimum donation shown is $100. Now, while the Advocates and the museum alike would be pleased to accept donations of that size, or larger, there is a way to make a donation in the requested range. To do this, press the "Take Action" button on the museum home page (immediately to the left of the DONATE button). This will open a drop-down menu. Choose the "make a payment option," select "other," and write in "Donation" in the additional information box. (I suspect that the museum might welcome good old-fashioned checks as well, which could be sent to the museum at 984 North Milwaukee Ave., Chicago, 60642-4101 -- and checks sent via the U.S. Mail would presumably help the beleaguered USPS as well. Kind of a win-win.)
As an incentive to register for the virtual Judges Night, the Advocates have arranged for a CLE presentation. Here is the schedule for the event:
5:30 - 5:55 p.m. -- Introductions and Virtual Cocktail with the Advocates, Justice Aurelia Pucinski, other Judiciary, and Participants
5:55 - 6:00 p.m. -- Welcome by Representative of the Polish Museum of America
6:00 - 7:00 p.m. -- CLE on "Judicial Ethics and Social Media" by Justice Michael B. Hyman
To register, email your name, ARDC number, and email address to advocatessociety@gmail.com. The Advocates Society is a registered provider with the Illinois MCLE Board.
The Committee to Retain Michael P. Toomin is holding a virtual reception on Tuesday, October 20, at 5:30 p.m. Reservations for the event are $100 each, and sponsorships are available (Supporter - $250, Advocate - $500, Friend - $1,000, Co-Host - $1,500, Host - $2,500, and Sponsor - $5,000). Login details will be provided when a reservation is purchased.
Chicago Mayor Lori E. Lightfoot will be the special guest at this reception.
Reservations may be obtained at this link. For more information, or to make a reservation by phone, call (312) 854-8018 or email hanah@p2consultinginc.com.
In apparent response to the recent Sun-Times editorial and two John Seasly articles, co-published by the Sun-Times and Injustice Watch (links to stories on the Injustice Watch here and here), Cook County Chief Judge Timothy C. Evans has issued a statement on "appellate court decisions." Here is that statement, in full:
When appeals court judges disagree with trial court judges, an honest difference of opinion is often involved. It is not only common for appeals courts to affirm or reverse with one or more dissenting judges, it is also common for a divided group of appeals court judges to be overruled by a divided group of judges in a higher appeals court. Some of our nation’s most respected judges have written some of the most famous dissents; some of those dissents were later adopted as the correct view of the law by a different group of judges.
When voters evaluate a circuit court judge for retention, it is important to keep appeals court decisions in perspective. Reversals should be considered along with a number of other factors, including appeals affirmed or dismissed, evaluations of judges by their peers in the bar associations, and fact-based media reports. The reputation a judge acquires over years on the bench, which includes the opinions of attorneys, other court personnel, witnesses, jurors, and litigants who have experience with a judge, should also be taken into consideration.
The various bar associations that screen retention candidates do take these factors into account. And the evaluating bar groups specifically ask the judges seeking retention how they have fared when their decisions are subjected to appellate review. Accordingly, none of the revelations in the Sun-Times/Injustice Watch articles should have come as a surprise to bar evaluators -- and, despite the information selected for the published accounts, each and every one of the four judges singled out in the Sun-Times/Injustice Watch articles were found qualified for retention by each and every one of the evaluating bar groups.
The Chicago Bar Association questionnaire for sitting judges seeking retention asks specifically (emphasis in original):
List each Supreme or Appellate Court citation, or attach a copy of the opinion, for all cases heard by you that have been reviewed during the last six years[.]
The Alliance questionnaire asks a virtually identical question:
List citation for each Supreme or Appellate Court citation, for all cases heard by you that have been reviewed during the last six years (or ten years for Appellate candidates).
The bar association screening process depends on self-disclosure. This is true for all candidates, from first time judicial hopefuls to Supreme Court justices seeking retention. In theory, of course, a retention candidate might fail to disclose a case in which he or she was reversed -- but that would be a suicidal course. Judicial evaluation committee investigators take their very responsibilities seriously and, with computer research tools like Lexis or Westlaw at their disposal, fact-checking a candidate's list of cases for accuracy or completeness is much less arduous than it would be otherwise.
Retention candidates are even required to highlight for the screening committees any cases in which they were specifically criticized. From the Alliance retention questionnaire (emphasis in original):
Have your judicial rulings ever been commended or criticized by a reviewing court? Please state “Yes” or “No”.
*
If yes, supply, herein, the case name and citation, attach a copy of the opinion, and, if you deem it appropriate to comment, explain or amplify.
The CBA retention questionnaire makes a similar request (emphasis in original):
Has your judicial conduct ever been commended or criticized by a reviewing court? _____ If yes, supply in a separate attachment the case name and citation, attach a copy of the opinion, and, if you deem it appropriate to comment, explain or amplify.
Of course, just because the CBA and the 12-member Alliance of Bar Associations for Judicial Screening were not sufficiently 'troubled' by the appellate records of the four judges named in the Sun-Times/Injustice Watch coverage to recommend against their retention bids, does not mean that editorialists or other voters should not be troubled. Bar groups, including the five-member Suburban Bar Coalition, which found each of these four judges "Highly Recommended" for retention, are fallible. The unanimity of bar evaluator opinion is also a factor to be considered, but in our system it is the voters, not the bar groups or Injustice Watch, that ultimately decides the fates of the retention judges.
Voters in the November election will have to live in the 12th or 13th Subcircuits (far north suburban and far northwest suburban, respectively) in order to have any choice in filling any Cook County judicial vacancy.
The elections for all other judges in the county are mere formalities: There are only Democrats running in every other race, all unopposed. Wonderful for the happy candidates, of course... although this may not reflect well on the health of our polity. For now, however, and for the foreseeable future, this is beyond our control. So we look at what we have. In the only two contests there are.
Each of the four candidates for these two seats touts their many and various endorsements on their respective campaign websites. Susanne Groebner doesn't have a separate endorsements page on her site, but her Tribune endorsement pops up as soon as her site loads. Her opponent, Gary Seyring, has a separate endorsements page, as do both 12th Subcircuit candidates (Frank R. DiFranco's, Patricia M. Fallon's). I certainly encourage readers to click over to the candidates' sites and peruse the endorsements themselves.
In addition, I have added some of the endorsements you'll find on the candidates' websites to my Organizing the Data post about the two races -- but only some.
This drives candidates crazy, I realize, but I have a reason.
It's not that I doubt any of the candidates' assertions about who has endorsed them -- I believe them all. But my policy here has been to report only those endorsements that I can independently verify. I typically can't do that with individual, personal endorsements. Many organizations or groups have websites that proudly boast of their endorsements -- but, perhaps suprisingly, a great many other organizations or groups do not. They may have websites, but these are silent on political endorsements. It's hard to imagine why a group would go to the trouble of giving a candidate an endorsement... and then keeping it quiet. But many do. Labor unions are among the worst at this, in my experience. I don't know why. (For what it's worth, the Chicago Federation of Labor endorses Fallon in the 12th Subcircuit, Groebner in the 13th. The Chicago Journeymen Plumbers Local Union 130 UA endorses DiFranco in 12, Groebner in 13. I didn't say that no labor groups published their endorsements -- but too few do.)
Candidates try to get endorsements from as many groups as possible; winning coalitions have many disparate components. The Northwest Political Coalition has endorsed DiFranco. The Italian American Political Coalition and the Italian American Police Association have endorsed DiFranco and Groebner. Fallon and Groebner are endorsed by Personal PAC, the abortion rights lobbying group. Seyring has been endorsed by the United Hellenic Voters of America.
Both candidates for the 12th Subcircuit vacancy, Fallon and DiFranco, were "recommended" by the Advocates Society in the March primary. The Advocates Society, an association of Polish-American attorneys, is not a member of the Alliance of Bar Associations for Judicial Screening (which is why it issues endorsements and recommendations). The Advocates announced this week that, "due to COVID-19 difficulties... renewed its previous Circuit Court recommendations from the March 2020 Primary." The Advocates, presumably, will be satisfied with the outcome in 12, regardless of who wins; the group made no endorsement (or recommendation) in the 13th Subcircuit race.
The Alliance of Bar Associations for Judicial Screening has completed its evaluations of candidates seeking retention on the November ballot. The final "grids" follow. Click on any image to enlarge or clarify.
Now-former Judge Mauricio Araujo was the only retention candidate unanimously rejected by all 12 of the Alliance bar groups. Judge Patricia Manila Martin, who told the Alliance she was retiring, but did not withdraw from the ballot in time, was not rated at all.
After Araujo, the judge receiving the highest number of negative Alliance ratings was Judge Jackie Marie Portman-Brown. Seven of the 12 Alliance bar groups recommend a "no" vote on her retention. John J. Mahoney received negative ratings from four of the Alliance bar groups. Judge Daniel J. Kubasiak drew negative ratings from three Alliance bar groups. Two judges received "no" recommendations from two Alliance bar groups, Diana Rosario and Laura Marie Sullivan. Judge Michael P. Toomin received a negative rating from one Alliance bar group. All the rest of the retention judges received unanimously favorable recommendations from every one of the 12 bar associations in the Alliance issuing ratings for those candidates.
The Alliance of Bar Associations for Judicial Screening is comprised of the Arab American Bar Association (AABAR) (the newest Alliance member), the Asian American Bar Association of Greater Chicago (AABA), the Black Women Lawyers' Association of Greater Chicago (BWLA), the Chicago Council of Lawyers (CCL), the Cook County Bar Association (CCBA), the Decalogue Society of Lawyers (DSL), the Hellenic Bar Association of Illinois (HBA), the Hispanic Lawyers Association of Illinois (HLAI), the Illinois State Bar Association (ISBA), the Lesbian and Gay Bar Association of Chicago (LAGBAC), the Puerto Rican Bar Association of Illinois (PRBA), and the Women's Bar Association of Illinois (WBAI), working collaboratively to improve the process of screening judicial candidates in Cook County, Illinois.
The Alliance does not include the Chicago Bar Association (CBA), which maintains its own evaluation process. (Click here for a post on the CBA's retention evaluations.)
I express my thanks and appreciation to Alliance coordinator Joyce Williams who compiled and kept updating the Alliance ratings.
The Chicago Sun-Times came out last week with an endorsement of Circuit Court Judge Michael P. Toomin's retention bid. In its editorial, which noted that Toomin "is supported by all of the major bar associations," the Sun-Times said, "we want to emphasize how important it is for voters to stand up for integrity in our local politics and competence on the judicial bench by casting a 'yes' retention vote for Michael P. Toomin."
On Sunday, the Sun-Times published an article by Injustice Watch's John Seasly, "Appeals court reverses this judge more than any other in criminal courts seeking retention" (the link here is to the Injustice Watch site). Yesterday, the Sun-Times came out with an editorial, "Before voting to retain Judge Kenneth J. Wadas, consider his troubling record."
Newspaper editorial boards are amazing. The same editorialists that thought bar association ratings were important, when building the case for Judge Toomin, casually dismiss the favorable ratings given to Judge Wadas: "There’s a good argument Wadas, though approved for retention by all the major local bar associations, never should have been elected to the bench in the first place in 1996."
For what it's worth, Toomin, although targeted for defeat by the Cook County Democratic Party, is recommended favorably for retention by the Chicago Bar Association and all of the Alliance bar groups except the Black Women Lawyers' Association. Wadas is endorsed by the Cook County Democratic Party for retention and is rated favorably by both the CBA and all of the Alliance bar groups. Toomin and Wadas are both "Highly Recommended" by the Suburban Bar Coalition.
Three other judges were the subject, along with Wadas, of another October 11 Injustice Watch story by John Seasly, "4 judges, 6 years, 98 reversals — and they want you to vote to keep them in office." The judges named are Margaret Ann Brennan, Patrick J. Sherlock, and Anna Helen Demacopoulos.
Each one of these judges is also rated favorably for retention by the Chicago Bar Association and every one of the Alliance bar groups. All three are "Highly Recommended" by the Suburban Bar Coalition as well. Each of these three judges has been also endorsed for retention by the Cook County Democratic Party.
Readers may wonder about the seeming disconnect between the favorable ratings awarded these four judges and the 'troubling' number of times their decisions have been reversed in the Appellate or Supreme Courts. Don't the bar associations know about these?
The answer is, yes, the bar groups do know about those cases in which a Circuit Court's decision was subject to appellate scrutiny. Why? Because the bar groups ask.
The Chicago Bar Association questionnaire for sitting judges seeking retention asks specifically (emphasis in original):
List each Supreme or Appellate Court citation, or attach a copy of the opinion, for all cases heard by you that have been reviewed during the last six years[.]
The Alliance questionnaire asks a virtually identical question:
List citation for each Supreme or Appellate Court citation, for all cases heard by you that have been reviewed during the last six years (or ten years for Appellate candidates).
The bar association screening process depends on self-disclosure. This is true for all candidates, from first time judicial hopefuls to Supreme Court justices seeking retention. In theory, of course, a retention candidate might fail to disclose a case in which he or she was reversed -- but that would be a suicidal course. Judicial evaluation committee investigators take their very responsibilities seriously and, with computer research tools like Lexis or Westlaw at their disposal, fact-checking a candidate's list of cases for accuracy or completeness is much less arduous than it would be otherwise.
Retention candidates are even required to highlight for the screening committees any cases in which they were specifically criticized. From the Alliance retention questionnaire (emphasis in original):
Have your judicial rulings ever been commended or criticized by a reviewing court? Please state “Yes” or “No”.
*
If yes, supply, herein, the case name and citation, attach a copy of the opinion, and, if you deem it appropriate to comment, explain or amplify.
The CBA retention questionnaire makes a similar request (emphasis in original):
Has your judicial conduct ever been commended or criticized by a reviewing court? _____ If yes, supply in a separate attachment the case name and citation, attach a copy of the opinion, and, if you deem it appropriate to comment, explain or amplify.
While Mr. Seasly and Injustice Watch may be commended for their effort in calculating and reporting which judges have experienced the most reversals, it is safe to say that these disclosures did not come as news to the bar groups that evaluated the judges seeking retention. In other words, the bar groups knew about the reversals but, following their investigation into the circumstances---and case citations are often (though not always) absent from the Injustice Watch coverage---the bar groups were not 'troubled.'
It may be argued that bar groups are, generally, 'kinder' to judges seeking retention than they are to first-time aspirants or unconnected hopefuls. (I know many FWIW readers have expressed that view; I've made that argument myself.) But no human institution is perfect.
And just because a bar group does not get its dander up about a judge's track record on review does not mean that a judge's reasoning or rulings in a given case were not faulty, or even foolish. But regardless of one's view of the validity of the 'balls and strikes' analogy between judges and baseball umpires, statistics alone do not tell the whole story about a judge.
The fact is that every trial judge gets reversed from time to time. Certain types of cases, such as criminal cases where convicted defendants wind up in jail, are more likely to prompt appeals than others. Thus, as Seasly's article notes about Judge Demacopoulos, "Her reversals [largely] came from her time hearing felony criminal cases at the Markham courthouse." Judge Wadas has spent nearly the entirety of his career in the Criminal Court.
If determining the law were always easy, we wouldn't need judges at all, or if we did, because some wicked or obstinate people refused to follow the clear mandates of the law, we wouldn't need many. And we wouldn't need appellate courts either, because trial judges would always get it right. Count on this happening the same day that unicorns begin grazing in your backyard. So, in real life, there will be times where smart, hard-working judges miss an issue that an appellate court sees as dispositive. Some judges will perform better in some assignments than others, and the reviewing courts will provide a vital backstop to ensure justice in a given case. Sometimes an appellate court can be wrong. Usually I think that when an appellate court fails to reverse the erroneous decision of a trial judge -- and I filed the brief with the white cover. I have a point of view that stems from my rooting interests.
So does Injustice Watch. That does not mean that the group's reporting should not be respected and appreciated. But one need not go all a-flutter just because Injustice Watch reports information already taken into account by bar groups before reaching conclusions not shared by Injustice Watch.
Before being 'troubled' by this judge's record, or that one's, consider the point of view of the group presenting the rating or the information. And your own as well.
The Independent Voters of Illinois - Independent Precinct Organization has recommended "no" votes on three Cook County Circuit judges seeking retention this November.
Singled out for involuntary retirement by the IVI-IPO are Judges Mauricio Araujo (who has already resigned from the bench), Michael Toomin, and Kenneth Wadas.
Although targeted for defeat by the Cook County Democratic Party, Toomin is recommended favorably for retention by the Chicago Bar Association and all of the Alliance bar groups except the Black Women Lawyers' Association. Wadas is endorsed by the Cook County Democratic Party for retention and is rated favorably by both the CBA and all of the Alliance bar groups. Toomin and Wadas are both "Highly Recommended" by the Suburban Bar Coalition.
I retweeted Mark Brown's October 9 Sun-Times column on Saturday.
"One of the main complaints is that Toomin wrote an opinion overturning a... county ordinance that sought to prevent children under 13 from being placed in juvenile detention.... [But the] Illinois Appellate Court upheld Toomin’s ruling." https://t.co/E8czThnkfl via @SunTimes
— Jack Leyhane (@JackLeyhane) October 10, 2020
But Brown's column did not identify the case in which Toomin "[overturned] a Preckwinkle-backed county ordinance that sought to prevent children under 13 from being placed in juvenile detention."
The case Brown refers to is In re Mathias H., 2019 IL App (1st) 182250, appeal denied, 2019 Ill. LEXIS 1243 (Dec. 31, 2019).
Twelve-year old Mathias was accused of robbing a GameStop store, "stealing money, gift cards, a PlayStation 4, and an Xbox gaming system." His alleged accomplice in this robbery was Mathias's 18-year old brother. The older brother was accused of using a handgun in the crime. (2019 IL App (1st) 182250, ¶3.) The disposition of the charges against Mathias's brother is not reported in this opinion.
What is reported is that, on August 4, 2018, when the petition for adjudication of wardship was filed, Mathias was arraigned before Judge Marianne Jackson, who determined that there was probable cause to proceed. The question then became whether the "secured custody of respondent was a matter of immediate and urgent necessity." The State suggested electronic monitoring; the defense requested that Mathias be sent home in the custody of his mother. Judge Jackson went along with these suggestions. (2019 IL App (1st) 182250, ¶4.)
The court explained to Mathias what all this meant. Among other things (2019 IL App (1st) 182250, ¶4),
[t]he court explained to the respondent that he was being placed on home confinement and would be required to wear a GPS ankle bracelet. The court also informed respondent that he would be responsible for charging the bracelet and that failure to charge the bracelet or tampering with it would be considered a violation.
A month later, the State's Attorney sought to revoke electronic monitoring (2019 IL App (1st) 182250, ¶5):
At a hearing on the motion, the State asserted that on September 1, 2018, a probation officer visited respondent’s home and was informed by respondent’s mother that respondent had left home the day before and had not returned. The State also asserted that the electronic monitoring device had lost power on September 2 through September 3 and for all of September 5. Defense counsel explained that respondent’s failure to charge the device was because he was in school but had no explanation for the fact that respondent was not home on September 1, 2018, which was a Saturday.
Judge Jackson asked Mathias where he'd been. On September 2, he told the court, he'd been at a friend's house. Mathias's mother contradicted him. When she got back from work that day, and found Mathias missing, she "contacted his friends on Facebook," but they said they did not know where he was. Mathias showed up the next day, September 3, around 8:00 p.m. Mathias's mother told Judge Jackson that Mathias "repeatedly failed to listen to her." The court admonished Mathias, but kept the order for electronic monitoring in place. Instead of sending him home with his mother, Judge Jackson sent Mathias to the Saura Center "for a few days." The Saura Center is described in the opinion as a "nonsecure shelter." (2019 IL App (1st) 182250, ¶¶6, 4.)
The case was back before Judge Jackson within a week, on September 12, 2018, the very same day, the opinion notes, that the County Board passed Cook County Ordinance No. 18-4955 (codified at Cook County Code of Ordinances §46-4), "which provides in relevant part that '[a]n individual under 13 years of age shall not be admitted, kept, detained or committed to the Cook County Jail or the Juvenile Temporary Detention Center'" (2019 IL App (1st) 182250, ¶7).
Judge Jackson did not send Mathias to jail on September 12. She sent him home, still on electronic monitoring. The court warned Mathias that he "was not free to visit friends but could only leave home to go to school or church. Respondent indicated that he understood, and the court told respondent that if he failed to comply, he would be sent to the detention center." (2019 IL App (1st) 182250, ¶8.)
But Mathias apparently did not comply. The State's Attorney was back in court on September 24 with another motion to revoke electronic monitoring, alleging that Mathias had allowed his monitoring device to lose power on September 17, 2018, from 2:45 p.m. to 3:25 p.m., and later that day from 5:25 p.m. to 12:36 a.m. the following morning. "It was further alleged that on September 23, 2018, a strap-tampering alert was issued at 1:25 p.m. Probation officer Escalara conducted a home visit and determined that respondent was not home and that his whereabouts were unknown." (2019 IL App (1st) 182250, ¶9). Mathias had run away.
The potential application of new §46-4 was raised at the September 24 hearing. The State's Attorney "asked for guidance" about the ordinance. Judge Jackson expressed concern that the new ordinance might be unconstitutional "because it infringes on [the] authority that this Court has been granted by the legislature of the State of Illinois to make decisions on detention." Moreover, Judge Jackson noted, electronic monitoring clearly was not working in Mathias's case and no one present at the hearing knew where Mathias might be found. Mathias was a danger to himself. Judge Jackson therefore issued a juvenile arrest warrant. (2019 IL App (1st) 182250, ¶10.)
Mathias was arrested pursuant to the warrant and brought back before Judge Jackson. The potential applicability of §46-4 was very much on the court's mind. "If I follow this ordinance," Judge Jackson said, "what I would be creating is a 12-year-old who is at liberty to ignore his mother, at liberty to ignore this Court, and put himself in extreme danger, and that I would be powerless, essentially a paper tiger, to do anything about it." She ordered Mathias held in custody at the Juvenile Temporary Detention Center. (2019 IL App (1st) 182250, ¶11.)
Mathias filed a motion to reconsider detention on October 4. Judge Jackson continued the matter to October 19, with Mathias to be held in custody in the meantime, "for his own safety." (2019 IL App (1st) 182250, ¶12.)
Now you'll notice that, to this point, there has been no mention of Judge Toomin here. That's because, to this point, Judge Toomin was not involved.
The Public Defender got Judge Toomin involved by filing an emergency petition for habeas corpus on October 10. He heard the petition on October 12. The PD argued that Mathias could not be held under §46-4; the State's attorney took "no position" on the petition. (2019 IL App (1st) 182250, ¶13.)
Here is where my lack of juvenile justice and criminal procedure experience puts me at a disadvantage.
I see this all the time in media reporting on civil cases: A reporter or columnist, unfamiliar with civil procedure, draws all sorts of sinister inferences from matters easily explained or understood by lawyers conversant in the applicable procedure. I am wary of falling into this trap myself. I have hopes that FWIW readers will be able to help me understand here.
But right now, howeer, to me, at least, this taking of "no position" on the habeas petition looks like a lay down by the State's Attorney. That is not necessarily a bad thing. The State's Attorney is the county's attorney and would have at least the initial responsibility to defend the ordinance against any challenge. That would be the case if the occupant of that office were Kim Foxx or Bernie Carey. So there may well have been an expectation, among those going before Judge Toomin, that the habeas petition would be unopposed, and granted accordingly.
Except for one thing.
However the motion was styled, the habeas petition represented a collateral attack against Judge Jackson's rulings. A motion to reconsider was actually pending before Judge Jackson when the habeas petition was presented to Judge Toomin.
Here again my unfamiliarity with juvenile and/or criminal procedure puts me a disadvantage. Perhaps a habeas petition would be the normal, customary way of attacking Judge Jackson's order. Perhaps, if she had denied the motion to reconsider on October 19, her order striking down the ordinance might not have been immediately appealable. Perhaps the habeas petition was the best vehicle to get the issue before the Appellate Court. Certianly the opinion does not question the circuitous route by which the issue arrived in the Appellate Court. Of course, if Judge Toomin had granted the habeas petition, who would have appealed?
Even without specific knowledge of the applicable procedure here, I can state with some confidence that courts do not look with favor on collateral attacks generally.
In Thomas v. Sklodowski, 303 Ill.App.3d 1028, 1035 (1st Dist. 1999), the Appellate Court stated, citing Lewis v. Blumenthal, 395 Ill. 588 (1947), "interlocutory orders in a case are as insusceptible to collateral attack as is the final judgment." In Thomas, the Appellate Court affirmed summary judgment in favor of a lawyer in a legal malpractice case, finding that the suit was an impermissible collateral attack on the Federal District Court's order allowing the attorney to withdraw in a §1983 matter. Thomas wound up on the receiving end of a million dollar default judgment in the Federal case, but the Illinois Appellate Court said his remedy had been in the 7th Circuit, not in a state court malpractice suit. See also, Tielke v. Auto Owners Ins. Co., 2019 IL App (1st) 181756 (breach of contract suit impermissible collateral attack on denial of motion to enforce alleged settlement agreement in personal injury case). Citing both Thomas and Blumenthal, the Tielke court stated (¶39):
In Blumenthal, our supreme court held that "Each and every step taken or order made in the proceeding, whether it concerns the merits or not, is just as impervious to collateral attack as the final judgment on the merits, *** [and] that an interlocutory order, no matter how erroneous, if not void, will justify or protect all persons as completely as the final judgment itself." [Internal quotation marks omitted]. Id. at 594. Pursuant to Thomas and Blumenthal, the trial judge's order in the personal injury action, denying plaintiff's motion to enforce the settlement agreement, was impervious to collateral attack.
Granted, the Mathias H. opinion does not refer to the habeas proceedings before Judge Toomin as a collateral attack on Judge Jackson's determination that she was not bound by §46-4. And, if the Appellate Court had determined that the habeas proceedings were an improper collateral attack, the affirmance of Judge Toomin's dismissal of the petition would presumably have been on those grounds, without reaching the merits of §46-4.
But even if the habeas proceedings were not, under the applicable custom, practice, or procedure, a collateral attack on Judge Jackson's order, or even if the proceedings were a permissible form of collateral attack, there was reason for Judge Toomin to be wary of effectively reversing Judge Jackson's decision.
Balciunas v. Duff, 94 Ill.2d 176 (1983), was a mandamus action, filed in the Illinois Supreme Court, seeking to compel Judge Brian B. Duff to reverse some interlocutory discovery orders he made on reconsideration of discovery orders made by his predecessor on the Law Division motion calendar, Judge Walter B. Bieschke.
In Balciunas the plaintiff contended (94 Ill.2d at 183) "that Judge Duff reviewed and reversed orders entered by another judge of coordinate authority, and that such action is neither consistent with the orderly administration of justice nor with our judicial system." The Supreme Court did not agree with this contention, but did caution against the evils of judge-shopping, stating (pp. 187-188), "we think it is particularly appropriate for a judge before whom a motion for reconsideration is pending to exercise considerable restraint in reversing or modifying previous rulings." If a successor judge, appointed in the ordinary course of rotating assignments, is expected to exercise "considerable restraint" before reversing a fellow judge's order, how much more cautious should a judge be in Judge Toomin's position, where he was being asked to effectively reverse his colleague's order while a motion to reconsider was still pending before her?
And, on top of it all, Judge Toomin, as the Presiding Judge of Juvenile Justice Division, had an administrative consideration as well: He was being asked to undermine the ruling of a judge in his 'chain of command' without giving her the chance to decide the reconsideration motion pending before her. What I really don't understand is why, under the circumstances, Judge Toomin did not simply 'kick' the habeas petition over to Judge Jackson. But this is not a criticism on my part -- I don't know the procedure and therefore can not venture a competent opinion as to whether such a transfer was possible.
What I do know was that, on October 17, 2018, two days before the next scheduled date in Judge Jackson's courtroom, Judge Toomin issued a written opinion denying the habeas petition on the grounds "that the county board did not have home rule authority to enact section 46-4 because the General Assembly had preempted the purported exercise of power expressed in the ordinance." (2019 IL App (1st) 182250, ¶14.)
I also know that, to reach the merits, the Appellate Court -- not Judge Toomin -- had to get past the fact that the parties agreed that the case was now moot inasmuch as Mathias had already served his time and had been released. Basically, the Appellate Court determined that the "public interest" exception to the mootness doctrine applied and the court should provide guidance on the enforceability of §46-4 because the question will arise again (2019 IL App (1st) 182250, ¶¶17-20).
The third thing I know is that the State's Attorney's Office took a number of inconsistent positions during the course of this matter.
The panel deciding the Mathias H. case split 2-1 on the enforceability of §46-4. The justices deciding the case did, however, all agree that, on appeal, for the first time, the State took the position that the County Board lacked the home rule authority to enact the ordinance. In his dissenting opinion, Justice Michael B. Hyman stated, 2019 IL App (1st) 182250, ¶48,
The majority describes the State's position before the circuit court as taking "no position," but the situation is not so innocuous---the State affirmatively took the opposite position in the trial court from the position it takes on appeal. At Mathias H.'s detention hearing, the state's attorney's office affirmatively agreed with Mathias H. that the ordinance was valid and controlling. At the hearing on Mathias H.'s habeas petition, the assistant state's attorney, appearing in a different juvenile's case raising a similar issue, took "no position" on the ordinance's validity. Allowing the State to take the opposite position now seems entirely unfair.
Justice Hyman continued, 2019 IL App (1st) 182250, ¶51, "I would hope the State will not repeat what I consider a maneuver that undermines the adversarial process. By initially embracing the ordinance and then taking no position, the State made a commitment, a knowing choice, and should not on appeal raise an argument waived before the trial court, especially because the State has proffered no reason for its fickleness." I am not certain how the SAO's agreeing with the PD on the enforceability of §46-4 advances the adversarial process, particularly where Judge Jackson disagreed, and where Judge Toomin disagreed. But I understand the concern about a party taking different positions in different courts in the same case.
I will leave it to the reader to sift through the competing positions on the merits staked out by the majority and the dissent in this case. The practical bottom line here is that the majority opinion, invalidating §46-4, has prevailed because the Supreme Court decided not to grant leave to appeal in this case.
Which leads me to the final thing I think it may be safe to say about the Mathias H. case: None of the persons involved think that jailing a 12-year old is a good idea. But what was the alternative in this case? Judge Jackson explained to Mathias what he needed to do. And then he defied her. His mother said she had no control. Mathias defied her, too. He circumvented his ankle bracelet and took off for parts unknown despite the good intentions and actual efforts of those charged with his welfare to help him. So, again, what was the alternative to incarceration here?
This latest update was released at noon today. Almost all the blanks are filled in, as you can see. (Click on any image to enlarge or clarify.)
The Alliance of Bar Associations for Judicial Screening is comprised of the Arab American Bar Association (AABAR) (the newest Alliance member), the Asian American Bar Association of Greater Chicago (AABA), the Black Women Lawyers' Association of Greater Chicago (BWLA), the Chicago Council of Lawyers (CCL), the Cook County Bar Association (CCBA), the Decalogue Society of Lawyers (DSL), the Hellenic Bar Association of Illinois (HBA), the Hispanic Lawyers Association of Illinois (HLAI), the Illinois State Bar Association (ISBA), the Lesbian and Gay Bar Association of Chicago (LAGBAC), the Puerto Rican Bar Association of Illinois (PRBA), and the Women's Bar Association of Illinois (WBAI), working collaboratively to improve the process of screening judicial candidates in Cook County, Illinois.
The Alliance does not include the Chicago Bar Association (CBA), which maintains its own evaluation process. (Click here for a post on the CBA's retention evaluations.)
Judicial retention elections seem strange to many voters. The two elected justices of the Illinois Appellate Court and the 60 Circuit Court judges (which is really 59 and may be 58 or even 57, depending on how you count) who are up for retention in Cook County this year do not run against anyone; each candidate's name is on the ballot in the form of a question that comes down to this: Should Judge X remain a judge? Or should Judge X look for work elsewhere come December?
If Judge X receives at least a 60% "yes" vote, he or she keeps the job.
Past results suggest that all of the judges in the current class have excellent prospects for success in this retention election. While one judge was removed from office in 2018 (with a "yes" vote of only 52.16%), that was the first time that any retention judge had lost in Cook County since 1990 -- when seven judges were removed (and one of those judges removed from office was simultaneously elected to the Appellate Court).
But that does not mean that judges have no reason to be nervous. In a normal year roughly two out of 10 voters will mark "no" on every single judge, no matter how qualified. In the 2018 retention election, for example, now-Illinois Supreme Court Chief Justice Anne M. Burke and Appellate Court Justice Margaret Stanton McBride recieved a "yes" vote of just more than 81%. Among Circuit Court judges seeking retention in 2018, eight, all female, broke the 80% barrier: Marcia Maras (80.05%), Carol Howard (80.65%), Mary Colleen Roberts (80.41%), Diane M. Shelley (80.57%), Erica M. Reddick (80.12%), Elizabeth Mary Hayes (81.48%), Kimberly D. Lewis (81.14%), and Cynthia Ramirez (81.03%) -- but not by much. Everyone else finished with a "yes" vote of less than 80%.
While you are no doubt sick of hearing this, still it must be said that 2020 is not a normal year. Persons can spend days, literally, lingering over mail-in ballots. Will these voters work their way all the way down the ballot? Will they be more kindly disposed towards the retention judges -- or less?
I've gotten all sorts of would-be comments from angry persons castigating judges for not working during this Never Ending Year of Pandemic. Some bench trials have resumed... or is that re-zoomed? But there are no jury trials. Some of those stuffing my comment queue would blame 'lazy' judges for this... but, even if we were to start asking jurors to come in again, would they? Some, presumably, but not all. And would lawyers really like to place their clients' fates in the hands of those reckless enough to come in? The ones who show up might well be the least inclined to wear masks...or otherwise follow instructions.
There may be some judges who could have done, and who could be doing, more during these unprecedented times. There are goldbrickers in any occupation. But, just as in the economy at large, not everyone with the desire to work has had the opportunity. That's not their fault. But some voters will express their frustration with the slackened pace of the justice system by punishing the retention judges.
Even in a normal year, Second City Cop seldom misses an opportunity to urge its readers to vote "no" on all retention judges, nor are they the only ones who would put the "no" in NOvember. Those inclined to 'throw the rascals out' will vote the retention ballot no matter what.
Can we safely assume that the just-say-nay voters will number no more than 20 or 25% of the retention voters this year? As a lot of people learned first-hand with their IRAs in recent years, past results are not a guarantee of future performance.
While some clearly fantasize about the prospect, the wholesale removal of judges in Cook County would not be in the best interests of the public.
We have many very good, hard-working, scholarly judges in Cook County. Some, certainly, are better than others. However, with the exception of Judge Mauricio Araujo (who has resigned) and Judge Patricia Manila Martin (who said she was resigning), all of the judges on the 2020 retention ballot are recommended by at least some of the many bar associations that screen judicial candidates; the vast majority have been recommended by each each and every one of the bar groups. Here's a linked list of the posts I've put up about the bar association ratings:
- CBA recommends "yes" vote for 60 of 62 jurists seeking retention;
- Chicago Council of Lawyers finds eight jurists Well Qualified for retention, one Highly Qualified;
- ISBA releases narratives for its Cook County judicial retention ratings;
- Suburban Bar Coalition announces retention recommendations; and
- Final Alliance grids released this morning.
More information about Cook County judges on the retention ballot is available on the 2020 Cook County Retention Judges Website. Injustice Watch offers this interactive guide to the retention ballot. The Chicago Tribune has announced its retention endorsements. The Chicago Sun-Times has run a couple of editorials about retention races. The IVI-IPO has also offered guidance on retention races. I'll be putting up more posts about who has endorsed whom as that information becomes available to me.
I mean to express no opinion here about whether any particular judge should or should not be retained -- as you can see from consulting the various sources of information about the candidates, reasonable people can differ as to who is qualified and who is not -- but I do submit that the default vote on the judicial retention ballot, in the absence of a good reason to vote otherwise, should be "yes."
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