Russell W. Hartigan appointed to Circuit Court

Russell W. Hartigan, of the Chicago firm of Hartigan & O'Connor, was appointed by the Illinois Supreme Court yesterday to fill the countywide vacancy created by the retirement of Judge John J. Moran.

The appointment is effective October 14, 2010 and will terminate on December 3, 2012.

Hartigan was a candidate in this year's primary for the countywide Riley vacancy. He finished second to Sandra Ramos, the candidate slated by the Democratic Party. (Ramos is unopposed on the November ballot.) In the course of his campaign, Hartigan obtained endorsements from the Chicago Tribune, the Chicago Sun-Times, the 19th Ward Democratic Organization, the Wheeling Township Democratic Organization, the IVI-IPO, Personal PAC, and the Illinois Civil Justice League. Hartigan was rated qualified or recommended by every bar group that screened his credentials for the primary. He garnered a "highly qualified" rating from the Chicago Bar Association, the CBA noting that Hartigan "has practiced a wide range of complex civil litigation matters. He has tried a variety of civil jury trials. He is respected by his peers and possesses an excellent temperament." Hartigan also received a "highly qualified" rating from the ISBA and was "highly recommended" for judicial office by the Decalogue Society of Lawyers and the Lesbian and Gay Bar Association of Chicago.

Alliance ratings grids in "ballot order" order

The Alliance of Bar Associations for Judicial Screening has released its ratings "grids" for Cook County judicial retention candidates in ballot order. Herewith the grids (click to enlarge as necessary):




The Alliance of Bar Associations for Judicial Screening is comprised of the Asian American Bar Association of the Greater Chicago Area (AABA), Black Women Lawyers’ Association of Greater Chicago (BWLA), Chicago Council of Lawyers (CCL), Cook County Bar Association (CCBA), Decalogue Society of Lawyers (DSL), Hellenic Bar Association (HBA), Illinois State Bar Association (ISBA), Lesbian and Gay Bar Association of Chicago (LAGBAC), Puerto Rican Bar Association of Illinois (PRBA), and Women’s Bar Association of Illinois (WBAI) working collaboratively to improve the process of screening judicial candidates in Cook County, Illinois.

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Related:

More on Alliance retention ratings

CBA says four "not recommended" for retention

Judicial Performance Commission of Cook County says three judges "not recommended" for retention

See also: Cook County Retention Judges Website

Chicago Council of Lawyers retention ratings explained

The Chicago Council of Lawyers has released the explanations of its ratings for the coming election. For the complete report, follow this link.

Several Circuit Court judges were found "well qualified" for retention by the CCL. These are:

• Judge Paula Daleo,
• Judge Thomas Davy,
• Judge Jennifer Duncan-Brice,
• Judge Thomas P. Fecarotta, Jr.,
• Judge Michelle Jordan,
• Judge Carol Kelly,
• Judge John Patrick Kirby,
• Judge Mary Mikva,
• Judge Donald J. O’Brien, Jr., and
• Judge Kathleen Pantle.

Most of the other Cook County Circuit Court judges seeking retention were found "qualified" for retention in office. However, as mentioned in Saturday's post, the CCL chose not to recommend seven Circuit Court judges. These are:

• Judge Dorothy Jones,
• Judge Laurence Dunford,
• Judge Jeffrey Lawrence,
• Judge Susan J. McDunn,
• Judge Patrick T. Murphy,
• Judge William O’Neal, and
• Judge John D. Turner.

The CCL noted that Judge Jones opted not to participate in the CCL evaluation process. In an article in this evening's Chicago Daily Law Bulletin, John Flynn Rooney reports that Judge Jones chose not to participate in any bar evaluation. "I don't participate in the [bar groups evaluation] process because unfortunately I don't think it's fair," Jones told Flynn in an interview. "I let the people decide."

Here are the comments posted by the CCL for each of the seven judges the Council does not recommend for retention:

Hon. Dorothy Jones – Not Recommended
Judge Dorothy Jones refused to participate in the evaluation process. The Council finds her Not Recommended for retention.

* * * * * * * * * * * * * * *

Hon. Laurence Dunford – Not Qualified
Bio: Judge Laurence Dunford was elected to the bench in 2004 and is currently assigned to the First Municipal District. Judge Dunford was admitted to practice in 1971. Prior to election, he was in private practice.

Judge Dunford presents a difficult case. Most respondents say that he has a good knowledge of the law and with adequate legal ability and temperament. But other respondents find fault with his temperament, saying that he can be short-tempered and unpredictable from day to day. The Council concludes that he is Not Qualified for retention.

* * * * * * * * * * * * * * *

Hon. Jeffrey Lawrence – Not Qualified
Judge Jeffrey Lawrence was elected to the bench in 1992. He is currently assigned to the Law Division. Previously, he was in the Domestic Relations Division. Judge Lawrence was admitted to practice in 1969. Prior to election, he was in private practice.

Judge Lawrence is considered to have good legal ability. He is a capable judge who is praised for his ability to handle more complex cases. However, the Council is concerned that there are numerous reports that Judge Lawrence is not punctual in terms of starting his court call. This is a complaint that lawyers have directed at Judge Lawrence since the 1998 retention election evaluation conducted by the Council. In addition, there are lawyers who report that he is sometimes not prepared for their cases and that he is sometimes intemperate on the bench. On balance, the Council finds him Not Qualified for retention.

* * * * * * * * * * * * * * *

Hon. Susan J. McDunn -- Not Qualified
Judge Susan McDunn was elected to the bench in 1992. She is currently assigned to the Law Division. Previously, she was in the County Division and the First Municipal District. Judge McDunn was admitted to practice in 1980. Prior to election, she was in private practice.

Judge McDunn is considered to have adequate legal ability. Judge McDunn was found Not Qualified for retention in 2004, having been publicly rebuked by the Illinois Appellate Court for judicial conduct the court says, “disgraced the judiciary and the people of Illinois.” The Council found her behavior in failing to follow Illinois adoption law based on her personal beliefs to be “unacceptable and fall well beyond the pale of appropriate judicial conduct.” The Council believes this behavior alone disqualifies Judge McDunn, but an evaluation conducted for the 2010 retention election revealed that many lawyers believe she has difficulty handling complex matters that come before her and that she demonstrates an inappropriate temperament. The Council finds her Not Qualified for retention.

* * * * * * * * * * * * * * *

Hon. Patrick T. Murphy – Not Qualified
Judge Patrick T. Murphy was elected to the bench in 2004, and serves in the Fifth Municipal District Domestic Relations Division, where he runs the Unified Family Court Project. Previously, he served in the First Municipal District and the Sixth Municipal District Domestic Relations Division. Judge Murphy was admitted to practice in 1964 after earning his J.D. Prior to election, Judge Murphy served as the Cook County Public Guardian. He was also an assistant Cook County state’s attorney, an attorney with the National Legal Aid & Defender Program and Legal Assistance Foundation, and in private practice.

Judge Patrick Murphy is considered to have very good legal ability and is held in high esteem by many for his work as Public Guardian prior to the time he took the bench. But many practitioners report that he is inconsistent in his rulings as a judge. They say he often makes inappropriate, sometimes insulting remarks to the parties in front of him. Some say that he fails to follow the law, ruling in a way that he believes is correct. He is considered to be an advocate rather than a neutral arbiter. The Council respects Judge Murphy for his commitment to reform but finds him Not Qualified for retention to the Circuit Court.

* * * * * * * * * * * * * * *

William O’Neal – Not Qualified
Judge William O’Neal was elected to the Circuit Court in 1992. He has served in the Sixth Municipal District since his election. Judge O’Neal was admitted to practice in 1971. Prior to election, he was in private practice and had been a Cook County Public Defender.

Judge O’Neal is reported to demonstrate concern about each defendant who comes before him. His integrity is unquestioned. However, many lawyers question whether he always follows the law. In addition, some lawyers complain about his impatience on the bench. The Council finds him Not Qualified for retention.

* * * * * * * * * * * * * * *

Hon. John D. Turner – Not Qualified
Judge John Turner was elected to the Circuit Court in 1998. He is currently assigned to the Sixth Municipal District and was previously in the First Municipal District. Judge Turner was admitted to practice in 1984. Prior to election, he was an attorney for the Chicago Transit Authority, for the Chicago Park District and both with the Office of the Public Guardian and the Illinois Department of Children and Family Services.

Judge Turner hears misdemeanor cases. Some lawyers say he can be short-tempered on the bench and others complain that he does not always apply the law to the facts. Many other lawyers, however, say that he is doing an adequate job in his current assignment. On balance, the Council finds him Not Qualified for retention.

More on Alliance retention ratings

The 11 members of the Alliance of Bar Associations for Judicial Screening have recommended a "yes" vote for the vast majority of the more than 60 Cook County Circuit Court judges seeking retention this November. Literally dozens of judges received favorable retention recommendations from every single Alliance member. (The Alliance "grids" can be found in this post.)

But not all of the Alliance bar associations recommend "yes" votes on all the judges. The Chicago Council of Lawyers (CCL) has recommended a "no" vote on seven judges; the Lesbian and Gay Bar Association of Chicago (LAGBAC) recommends a "no" vote on eight judges; and the Illinois State Bar Association (ISBA) recommends a "no" vote on six judges. Judge Dorthy F. Jones, received negative recommendations from the CCL, LAGBAC, the ISBA and all of the other Alliance members. (Jones also received negative ratings from the Chicago Bar Association (CBA) and the new Judicial Performance Commission of Cook County (JPC).)

Judge Susan J. McDunn received "yes" recommendations from the Black Women Lawyers' Association of Greater Chicago (BWLA), the Cook County Bar Association (CCBA), the Hellenic Bar Association (HBA), and the Women's Bar Association of Illinois (WBAI). However, the Asian American Bar Association (AABA), the CCL, the Decalogue Society of Lawyers (DSL), the Hispanic Lawyers of Illinois (HLAI), the ISBA, the LAGBAC, and the Puerto Rican Bar Association of Illinois (PRBA) all recommended "no" votes. (Judge McDunn was also "not recommended" by the JPC and the CBA.)

Judge William D. O'Neal was "not recommended" by the CBA because he did not participate in that organization's evaluation process. However, Judge O'Neal received "yes" recommendations from the AABA, BWLA, CCBA, DSL, HBA, HLAI, PRBA, and WBAI. Judge O'Neal did receive "no" recommendations from the CCL and the ISBA, but was recommended for retention by the JPC.

Judge Jim Ryan received positive ratings from the AABA, BWLA, CCL, CCBA, DSL, HLAI, PRBA, and WBAI. The JPC recommended Judge Ryan's retention, but the CBA did not. Three Alliance members made "no" recommendations, however, namely, the HBA, ISBA and LAGBAC.

Judge Jeffrey Lawrence received a negative recommendation from the JPC and a positive one from the CBA. Eight of the 11 Alliance Bar Associations rated Judge Lawrence favorably (the AABA, BWLA, CCBA, DSL, HLAI, LAGBAC, PRBA, and WBAI), although the CCL, HBA and ISBA made negative recommendations.

Judge Patrick T. Murphy was rated favorably for retention by the AABA, BWLA, CCBA, LAGBAC, and PRBA. However, the CCL, DSL, HBA, HLAI, ISBA and WBAI all made negative recommendations. The CBA and JPC both recommended Judge Murphy's retention. The CBA's evaluation stated:

Judge Patrick T. Murphy is “Qualified” for retention as a Circuit Court Judge. Judge Murphy was admitted to practice law in Illinois in 1965. Judge Murphy practiced law for 40 years prior to his election to the Circuit Court, including over 25 years as the Cook County Public Guardian. Judge Murphy is well-known for his diligence, punctuality, and hard work. Those who appear before him find him to be earnest with a good grasp of the law. Judge Murphy’s integrity is unquestioned and he has demonstrated the requisite qualities necessary to serve as a Circuit Court Judge.

The JPC summarized its findings with regard to Judge Murphy as follows:

The Commission notes that Judge Murphy is conscientious, knowledgeable and committed to the best interests of children involved in the divorce proceedings. He has made extensive contributions to the community during his legal career. However, while the Commission believes Judge Murphy should be retained, we have received reports that Judge Murphy can be, at times, intemperate and inconsistent in his rulings.

No other Cook County Circuit Judge seeking retention received more than two negative ratings from the 11 member bar associations.

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Related:

CBA says four "not recommended" for retention

Judicial Performance Commission of Cook County says three judges "not recommended" for retention

Alliance releases retention ratings

See also:Cook County Retention Judges Website

Alliance releases retention ratings

More to follow. For now, here are the Alliance "grids." (Click to enlarge.)




The Alliance of Bar Associations for Judicial Screening is comprised of the Asian American Bar Association of the Greater Chicago Area (AABA), Black Women Lawyers’ Association of Greater Chicago (BWLA), Chicago Council of Lawyers (CCL), Cook County Bar Association (CCBA), Decalogue Society of Lawyers (DSL), Hellenic Bar Association (HBA), Illinois State Bar Association (ISBA), Lesbian and Gay Bar Association of Chicago (LAGBAC), Puerto Rican Bar Association of Illinois (PRBA), and Women’s Bar Association of Illinois (WBAI) working collaboratively to improve the process of screening judicial candidates in Cook County, Illinois.

Judicial Performance Commission of Cook County says three judges "not recommended" for retention

The new Judicial Performance Commission of Cook County has released its report on the qualifications of Cook County Circuit Court judges seeking retention. The entire JPC report may be found at this link (PDF format). (For more about the Judicial Performance Commission, see this post or JPC's own explanation of its history, purpose and methodology)(PDF format).

The three judges that the JPC does not recommend for retention are:

• Dorothy F. Jones,
• Jeffrey Lawrence, and
• Susan Jeanine McDunn.

Here are the JPC's comments on each of these three judges:

Hon. Dorothy F. Jones

The Judicial Performance Commission does not recommend Judge Dorothy F. Jones for retention.

Biography: Dorothy Jones graduated from DePaul University College of Law and was admitted to practice in 1979.

Judge Dorothy Jones was elected to the Circuit Court in 1992. She is currently assigned to a primarily pro se call in the First Municipal District. Prior to election, she was an assistant public defender in Cook County.

Summary: The Commission found predominantly unfavorable impressions of Judge Jones in the legal community. The investigation revealed a lack of clarity and consistency in her decisions, as well as questions about her temperament and ability to manage the courtroom. Although Judge Jones has a reputation for honesty and efficiency, the Commission does not feel those qualities outweigh the deficiencies of performance, temperament and management found in the investigation.

The Judicial Performance Commission does not recommend Judge Dorothy F. Jones for retention.

* * * * * * * * * * * * *

Hon. Jeffrey Lawrence

The Judicial Performance Commission does not recommend Judge Jeffrey Lawrence for retention.

Biography: Jeffrey Lawrence graduated from Chicago-Kent College of Law and was admitted to practice in 1969.

Judge Lawrence was elected to the bench in 1992. He is currently assigned to the Law Division. Previously, he was in the Domestic Relations Division. Prior to election, he was in private practice.

Summary: Respondents indicate that Judge Lawrence issues detailed written rulings and has a good knowledge of the law. However, the Commission notes a serious issue of punctuality that has been consistent throughout his eighteen years on the bench. The Commission also notes a number of respondents who complain that he is not always prepared. Interviewees indicate Judge Lawrence often takes the bench well after the scheduled start time and sometimes does not appear prepared for court when he arrives. The Commission received numerous comments about significant delays created when the judge does not take the bench promptly and is not prepared for hearings. Judge Lawrence was made aware of complaints about his punctuality through bar association evaluations in previous retention elections but the Commission’s investigation suggests he has not addressed the recurring problem. On balance, the Commission cannot recommend Judge Lawrence for retention[.]

The Judicial Performance Commission does not recommend Judge Jeffrey Lawrence for retention.

* * * * * * * * * * * * *

Hon. Susan J. McDunn

The Judicial Performance Commission does not recommend Judge Susan J. McDunn for retention.

Biography: Susan J. McDunn graduated from DePaul University College of Law and was admitted to practice in 1980.

Judge McDunn was elected to the bench in 1992 and seated in 1993. She is currently assigned to the Law Division. Previously, she was in the County Division and the First Municipal District. Prior to election, she was in private practice.

Summary: Judge McDunn appears attentive to proceedings and is punctual for court. However, the Commission notes significant concerns about her ability to handle difficult, complex matters. She is described as unwilling to reconsider rulings when presented with additional case law and demonstrates an inappropriate temperament. The Commission received reports of the judge losing her temper and appearing unable to control her courtroom.

In an adoption case in 1999, Judge McDunn was rebuked by the Appellate Court for judicial conduct that the court said “disgraced the judiciary and people of Illinois.”

Although the Illinois Judicial Inquiry Board concluded that Judge McDunn did not make statements against persons based upon their sexual orientation, her actions demonstrated a lack of respect for the law. There is no indication that Judge McDunn has rehabilitated her performance. Moreover, the Commission received comments from some lawyers that in light of this event, Judge McDunn does not command the respect of the legal community.

The Judicial Performance Commission does not recommend Judge Susan J. McDunn for retention.

* * * * * * * * * * * * *

Differences between JPC and CBA ratings

Two of the judges receiving 'not recommended' ratings, Judges Jones and McDunn, also received a 'not recommended' rating from the Chicago Bar Association. (See, this earlier post for details.)

Judge Lawrence, on the other hand, was recommended by the CBA. The CBA stated:

Judge Jeffrey Lawrence is "Qualified" for retention as a Circuit Court Judge. Judge Lawrence was admitted to practice law in Illinois in 1969 and has served as a judge since 1992. Judge Lawrence is currently assigned to the motion call in the Law Division. Judge Lawrence possesses the requisite legal knowledge, ability, and integrity to be retained.

The JPC recommended two judges for retention that the CBA refused to recommend. The CBA automatically rated Judge William D. O'Neal 'not recommended' because he refused to participate in the CBA evaluation process. The JPC, however, stated, in summary, that "Respondents generally felt that Judge O’Neal makes appropriate rulings. While the Commission believes he should be retained, the Commission notes there have been some concerns raised about his temperament and ability to maintain order in the courtroom." On balance, though, he was recommended.

Judge Jim Ryan was also rated 'not recommended' by the CBA but 'recommended' by the JPC. Of Ryan, the JPC said, in summary, "Survey respondents generally found Judge Ryan to be efficient and appreciate the deliberation he gives to defendants during the preliminary hearings heard in his courtroom. He manages his call efficiently and maintains a good relationship with court personnel. He is praised for being fair to all defendants when making his rulings." The JPC added, "While the Commission believes he should be retained, the Commission notes significant reports that Judge Ryan sometimes seems impatient and inattentive during court."

Justice Fitzgerald to step down from Illinois Supreme Court; Theis appointed

It's not up on the Illinois Supreme Court website yet, but both the Chicago Sun-Times and the Chicago Tribune are reporting that Chief Justice Thomas R. Fitzgerald will step down from the high court in October and that the court has agreed to appoint Mary Jane Theis, currently serving as a justice of the Illinois Appellate Court, First District, to replace him.

Justice Theis's appointment would be effective through December 3, 2012. She would have to be elected to that vacancy in 2012 in order to continue to serve.

Justice Theis received her B.A. degree from Chicago's Loyola University in 1971 and her J.D. degree from the University of San Francisco School of Law in 1973. She served as an Assistant Public Defender (1974-83), Associate Judge (1983-88) and Circuit Judge (1988-93). She was elected a Judge of the Appellate Court, First District, in 1994. Judge Theis is a member of the Illinois State and Chicago Bar Associations, the Women's Bar Association of Illinois and the Illinois Judges' Association. She was President of the Appellate Lawyers Association in 2006-07.

HT: Kulmeet Galhotra.

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Update: Supreme Court press release on Justice Fitzgerald's retirement and Justice Theis's appointment is now posted.

More on merit selection vs. judicial election

I put a post up over the weekend about a former Michigan Supreme Court Justice (Cliff Taylor) who, despite having lost his retention election, still favors the election of judges.

Yesterday, my attention was called to Dan Eggen's September 10 article in the Washington Post. In his article Eggen dismissed Mr. Taylor's position without even referring to him by name. Instead he referred to "a report issued... by a small conservative group active in judicial elections" and written by "Colleen Pero, a Michigan judicial activist."

In fairness, the September 9 post on The BLT: The Blog of LegalTimes (the original source for my weekend post) referred to both a speech by Mr. Taylor and a report written by Pero, who served as Taylor's campaign manager. The LegalTimes piece focused on the speech; the Washington Post article focused instead on the accompanying report.

But the larger question is how did the debate on merit selection vs. judicial election get swept up into the never-ending 'conservative' vs. 'liberal' debate?

In what way is appointing judges, thereby bypassing the electorate, 'liberal,' while electing judges is somehow 'conservative?' Answer: It comes from the partisans' belief that their system will help assure judges sympathetic to their views. In my opinion, for all the rhetoric about judicial independence and integrity, many of the persons trying to transform the ongoing discussion of merit selection vs. judicial election into another front in the Culture Wars are looking to control judges, not free them.

The "sloganization" of merit selection vs. judicial election is a disservice to the public and to the serious-minded people on either side of the debate.

Honest advocates of merit selection will acknowledge that the problem with merit selection is the identity of the person or the composition of the group charged with making the appointments. The last two governors of Illinois have been convicted of felonies. Looking back, would anyone seriously have preferred them to have made judicial appointments rather than have open elections? If the governor were required to appoint persons recommended by a board, who would be on that board? Would the 'blue-ribbon' appointees be overwhelmed by the political interests?

On the other hand, honest advocates of judicial elections must acknowledge that the problem with elections is money. Fund-raising (even through committees), electioneering, party nominations, advertising -- all of these can contribute to a perception of partiality among those who survive the process toward those who helped them survive.

The truth is that there is no manner and method of judicial selection that, in and of itself, guarantees the integrity and independence of the persons selected. Political considerations can taint any system, elected or appointed, that the human mind can imagine.

In Illinois, we have at present a system of electing judges. Whatever we might do in the future, voters can make the present system work best by knowing as much as possible about the men and women who would seek to sit in judgment.

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For more on the question of merit selection vs. judicial election, Andrea Lyon published this piece yesterday on the Huffington Post. See also, this story on Slate.com regarding former Supreme Court Justice Sandra Day O'Connor's campaign for merit selection of judges -- and how that's playing in Iowa these days.

Judge Evans reelected as Cook County Chief Judge

WBBM Radio and the Chicago Daily Law Bulletin are both reporting this evening that Judge Timothy C. Evans has been reelected as Chief Judge of the Circuit Court of Cook County.

All Cook County Circuit Judges were eligible to vote in the election, which was held this afternoon in the Daley Center.

CBA says four "not recommended" for retention

The Chicago Bar Association has announced its ratings for Cook County judges seeking retention in November. (Click here for complete CBA "Green Guide" in .pdf format.)

Supreme Court Justices Thomas R. Fitzgerald and Charles E. Freeman were both rated "qualified" in their retention bids, as were Appellate Court Justices Joseph E. Gordon and Shelvin Louise Marie Hall.

All Cook County Circuit Court judges seeking retention were also deemed qualified by the CBA with four exceptions. The four judges rated "not recommended" by the CBA are:

• Dorothy F. Jones
• Susan Jeanine McDunn
• William D. O'Neal
• Jim Ryan

Here is the text of the CBA's evaluation for each of these retention candidates:

DOROTHY F. JONES.........................NOT RECOMMENDED
The candidate declined to participate in the Judicial Evaluation Committee (JEC) screening process and, therefore,according to The Chicago Bar Association's governing resolution for the JEC, is automatically found NOT RECOMMENDED.

SUSAN JEANINE MCDUNN...............NOT RECOMMENDED
Judge Susan Jeanine McDunn is “Not Recommended” for retention as a Circuit Court Judge. Judge McDunn was admitted to practice law in Illinois in 1980 and has served as a judge since 1993. Since 2007, Judge McDunn has served in the Law Division and is considered a hard worker. However, Judge McDunn does not possess the requisite legal knowledge and ability to serve as a Circuit Court Judge.

WILLIAM D. O'NEAL........................NOT RECOMMENDED
The candidate declined to participate in the Judicial Evaluation Committee (JEC) screening process and, therefore,according to The Chicago Bar Association's governing resolution for the JEC, is automatically found NOT RECOMMENDED.

JIM RYAN.......................................NOT RECOMMENDED
Judge Jim Ryan is “NotRecommended” for retention as a Circuit Court Judge. Judge Ryan was admitted to practice law in Illinois in 1992 and was elected to the Circuit Court in 2004. Judge Ryan does not possess the requisite legal knowledge, ability, and temperament to serve as a Circuit Court Judge.

ICJL to post judicial retention questionnaires

The Illinois Civil Justice League is asking all Illinois judges seeking retention to complete a questionnaire. The responses from Cook County jurists will be posted on this page at IllinoisJudges.net.

Here are the questions that the ICJL is asking judges to answer:

1. State the main reason why voters should return you to the bench.

2. What actions have you taken as a judge of which you are most proud?

3. Name and describe one change you would make in the Illinois court system.

4. One prominent Illinois judicial evaluation survey asks attorneys to evaluate candidates on Integrity, Impartiality, Legal Ability and Temperament. Critique yourself in these four areas as to how you personally approach your job as a judge?

(Emphasis in original.)

My thanks to the ICJL's Allen Admoite for sending a copy of the ICJL survey my way. If you know of other questionnaires that Cook County retention judges are being asked to answer, please leave a link in a comment or send me an email.

Ousted Michigan judge still favors judicial election

One would understand entirely if a Michigan high court judge, defeated for retention after a bruising election campaign, became a convert to the cause of merit selection. But former Michigan Chief Justice Cliff Taylor, however, still supports the popular election of judges according to the linked story published Thursday on BLT: The Blog of LegalTimes.

Writes Diana Soliwon:

Cliff Taylor, former chief justice of the Michigan Supreme Court, voiced his support for the system that removed him from office during a panel discussion today about merit selection and its power to reshape America’s state courts.

Taylor and former campaign manager Colleen Pero addressed the gathering sponsored by the Heritage Foundation. They released a study underwritten by the American Justice Partnership, and written by Pero, asserting that billionaire George Soros has spent $45 million to "hand judicial selection over to small, unaccountable commissions comprised of legal elites."

With respect to Mr. Taylor, I suspect that there was significant support for merit selection before George Soros took an interest in the issue. Further, if Mr. Soros closes his checkbook tomorrow, interest in merit selection will remain.

On the other hand, I can't help but believe that true "merit selection" of judges is attainable, even under our present elective system, so long the public is informed about the merits of would-be judges. The trick, of course, is in informing the public.

HT: ICJL News Update

C. Kate Moreland appointed to Cook County bench

The Illinois Supreme Court has selected Assistant State's Attorney C. Kate Moreland to fill the countywide vacancy created by the retirement of Judge Victoria A. Stewart. Moreland, an attorney since 1995, has been based in Markham.

Moreland's appointment is effective September 20, 2010. It terminates December 3, 2012.

Illinois Judges Foundation to hold Batter Up For Justice Fundraiser

Per email received this evening from Mary Trew, the Illinois Judges Foundation will hold a fundraiser, "Batter Up For Justice," on September 23 at the Sheffield Baseball Club, 3619 N. Sheffield.

For the $150 admission price, guests will receive a dinner buffet, unlimited beer, wine, and soft drinks and -- you knew there'd be a downside didn't you? -- a "great view" of the Cubs-Giants game across the street at Wrigley Field. There will also be a raffle featuring several items of Cubs and Blackhawks memorabilia.

The event starts at 5:05pm; the game starts at 6:05pm.

For those willing and able to contribute more than the price of admission, sponsorship opportunities are available, ranging from an "On Deck" level at $500 to a "Grand Slam" level at $2,500. To purchase tickets, or for more information about sponsorships, follow this link.

The Illinois Judges Foundation is the charitable arm of the Illinois Judges Association. According to the IJF website, the Foundation funds these initiatives:

• the American Bar Association's Judicial Intern Opportunity Program -- a summer judicial internship program comprised of first- or second-year minority or financially disadvantaged law students;


• "7 Reasons to Leave the Party" -- an award-winning program in which Illinois judges talk to students about the legal and personal consequences of drinking and driving; and


• the Judge Harold Sullivan $5,000 annual scholarship award to one of the nine Illinois law schools.

For more information about Batter Up For Justice, call (312) 554-2008 or (773) 780-9991. Mary Trew writes that she and Diann Marsalek are both serving on the Lawyers Auxiliary Committee for this event.

Retention Judges Fundraiser September 20

My invite to the September 20 fundraiser hosted by the "Citizens for Retention of Judges in Cook County, 2010" arrived in the mail this week.

Full disclosure: If I can scrape up the requested $125 donation, I plan to attend this function, which will run from 5:00 to 8:00pm in the Preston Bradley Hall of the Chicago Cultural Center, 78 E. Washington Street.

Entertainment, says the invitation, will be provided by "Judge Gregory Paul Vazquez & His Jazz Ensemble."

This is the one fundraiser held on behalf of all the retention judges in Cook County and it will be extraordinarily well attended.

Judicial retention elections are a strange thing. The 70 judges up for retention in Cook County this year do not run against anyone; the 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.

It is rare indeed for a judge to thrown out of office at a retention election; the last time any Cook County judges failed to achieve a 60% yes vote was in 1990 when seven judges were removed (though one was simultaneously elected to the Appellate Court).

But that doesn't mean that judges have no reason to take retention elections seriously. It is a fact that at least two out of 10 voters will mark "no" on every single judge, no matter how qualified. In the 2008 retention election, for example, only one Circuit Court judge received more than an 80% "yes" vote (and she received, by my calculation, 80.1%).

Thus, the stars of the newspapers' editorials, the individuals rated most highly qualified by all the various bar groups, can still expect to be rejected by 20% or more of the voters -- and that's in a normal year. Across the nation, there is evidence to suggest that the theme of the current election cycle may be "throw the rascals out" -- rascals being loosely defined as anyone holding office.

But wholesale removal of judges in Cook County would not be in the public's best interests.

We have many very good, hard-working, scholarly judges in Cook County. There will also be some judges on this year's retention ballot who, in the opinion of some bar associations, or some newspapers or community groups, should join the ranks of the unemployed. Usually, there will be some disagreement: Judge X may be rejected by one bar association, but recommended by another. It is up to the voters to educate themselves, in these cases, as to which bar association, or which newspaper editorial board, has the correct view. I will try and report the good and the bad, the agreements and the disagreements, on various retention candidates in this blog.

But the default vote on the retention ballot, in the absence of a good reason to vote otherwise, should be "yes."

And that is why I plan to buy my ticket for September 20.

Lorna Propes appointed to 7th Subcircuit seat

The Illinois Supreme Court has appointed Chicago attorney Lorna Propes to fill a vacancy in Cook County's 7th Judicial Subcircuit created by the retirement of Judge Lawrence W. Terrell.

The appointment is effective September 10 and will expire on December 3, 2012.

Currently a name partner in the Chicago firm of Propes & Kaveny LLC, Propes is a 1975 graduate of Loyola School of Law. She served in the State's Attorney's Office from 1975-1980. She then went into private practice, joining a firm that was known as Kane, Obbish, Propes & Garippo and, later, as Propes & Garippo. In 1998, Propes joined Cahill, Christian & Kunkle. She founded Propes & Kaveny LLC in 2000.

Propes began service as a commissioner of the Illinois Racing Board in 1989, pursuant to an appointment by Governor James Thompson. In 2002, she was removed from the Board by then-Governor George Ryan, only to be brought back, seven months later, as Chair of the Board by then-Governor Rod Blagojevich. She is no longer a member of the IRB.

Before becoming a lawyer, Propes was a teacher and school guidance counselor. Propes is a 1966 graduate of Indiana University in Bloomington. She earned an M.A. in Secondary School Guidance from Columbia University in 1970.

No independent judicial candidates after all

Back at the end of June, this blog reported that two lawyers had filed to run as independents in the November election. Keith Thiel, filed to run against Judge Daniel A. Pierce, the otherwise-unopposed Democratic nominee for the "A" vacancy in the 14th Judicial Subcircuit. Roger Zamparo filed petitions seeking to challenge Ann Finley Collins, the unopposed Democratic nominee for the Riley vacancy in Cook County's 11th Judicial Subcircuit.

Both candidacies have come to an apparent end.

After challenges were filed to his nominating petitions, Thiel withdrew his candidacy.

Zamparo contested the petition to knock him off the ballot, but the Cook County Electoral Board ruled against him. (That's a link to the Board's August 6 decision.) Essentially, although Zamparo's petitions complied with the signature requirements published by the Illinois State Board of Elections for this election, the challengers argued, and the Electoral Board agreed, that, under a proper interpretation of §10-3 of the Election Code, 10 ILCS 5/10-3, the numbers were wrong.

Basically, to keep outsiders on the outside, the law provides that a wannabe candidate must calculate the proper number of required signatures on his or her own. The Electoral Board found there were two arguable numbers Zamparo could have used (Electoral Board decision at p. 2, footnote omitted):

The Objector's Petition describes the Candidates nomination papers as having 2,518 non-stricken signatures. Objector maintains that, following the provision of §10-3 of the Election Code [10 ILCS 5/10-3], the proper way to calculate the minimum signature level is to use the total number of voters who came to the polls in 2008 in the 11th sub-circuit, 87,254 (according to figures from the election authorities), and take 5% of that figure. This gives 4,362 signatures. Alternately, one could take 5% of the total number of votes received by the only candidate for election in the sub-circuit, 63,722, take 5% of that number and get a signature level of 3,186. But, Objector contends that the State Board number of 1,879 has no plausible basis in fact and must be an error. Since Candidate has submitted fewer signatures than either of these two possible signature levels, then his petition is inadequate.

Moreover, the Board held that Zamparo was not entitled to rely on the petition requirements published by the State Board of Elections (decision, p. 4, emphasis in original):

There is a natural tendency to be sympathetic to an individual who finds himself in the position of this Candidate. It seems not at all unreasonable for him to claim a right to rely on what the State Board of Elections published, despite the Board's printed-in-bold disclaimer "Legal information contained in this guide is not binding and should not be construed as sufficient argument in response to an objection to any candidate's nominating papers." But the Board itself seems to claim a right to limit others' claims of reliance by the use of this language, especially the phrase: "should not be construed as sufficient response to an objection."

Assuming that there is no court challenge to the Board's decision (and I would hope someone might let me know if one has been filed) Zamparo's brief candidacy is also at an end.

This restores the status quo that was established by the February primary: There is exactly one contested judicial race, the countywide race for the McCarthy vacancy.

Daley Center security works

WBBM Newsradio 780 recently reported the arrest of Thomas Pridgeon, a mortgage foreclosure defendant in a matter now pending in the Daley Center. According to the linked report, Mr. Pridgeon allegedly arrived for a hearing in his case carrying a briefcase. When the briefcase was placed on the belt scanner an alert sheriff's deputy noticed the outline of what turned out to be a ".45-caliber handgun was loaded with one bullet in the chamber and seven more in the clip."

The good news is that security works in the Daley Center. It would be nice, though, since screening is so effective, if the powers-that-be could be persuaded to unlock the stairway doors between, say, the 20th and 23rd floors.

CBA soliciting member input on retention judges

The Chicago Bar Association is soliciting member input on Cook County judges up for retention on the November ballot. Members "are invited to submit comments if you have appeared before a judge or know the candidates and have personal knowledge about their qualifications and abilities." Visit the CBA website (that's a link to the CBA home page in the preceding sentence) to complete a confidential questionnaire.

While the information provided is confidential, you will note that the CBA form requests each contributor to leave identifying information including name, address and phone number. Not only does this prevent anonymous attacks, it provides the opportunity for investigators from the CBA Judicial Evaluation Committee to follow up on responses, if necessary, seeking clarification or additional information.

July 29 Gallagher campaign fundraiser announced

Per email received today from Dawn Gonzalez (who is also on the host committee for the event), a fundraiser for Cook County Democratic Party judicial candidate Daniel J. Gallagher will be held on July 29 from 5:00 to 7:00pm at Roditys Restaurant, 222 South Halsted, in Chicago's Greek Town.

Tickets for the event can be purchased through Gallagher's campaign website. According to the invitation I received, online contributions of $100 or more will reserve your ticket at the door for the July 29 funder.

Gallagher is the Democratic Party's nominee for the countywide McCarthy vacancy. He has the unique distinction of being the Democrats' only countywide judicial nominee to have a Republican opponent (Maureen Masterson Pulia) in November.

Honorary Co-Chairs for the July 29 Gallagher fundraiser are U.S. Congressman Mike Quigley, Illinois State Treasurer Alexi Giannoulias, and Illinois State Senator Don Harmon.

Voter resources for retention judges are coming

The Chicago Daily Law Bulletin (subscription required) reported this week about the new Judicial Performance Commission of Cook County. A project of the Chicago Appleseed Fund and the Chicago Council of Lawyers, and supported by a grant from the Joyce Foundation, the JPC is surveying lawyers who've appeared before judges up for retention this year with a view toward making retention recommendations for November.

A key difference in the methodology of the JPC surveys is that the JPC is contacting attorneys based on court appearances supplied by the Clerk of the Circuit Court. "In the evaluation process conducted by members of the Alliance and the Chicago Bar Association," John Flynn Rooney's Law Bulletin article explains, "judges up for retention provide names of lawyers who have appeared before them." The JPC is using an independent research team, separate from the Commission, to conduct its surveys. According to an explanatory letter issued by the JPC, more than 8,000 will be contacted in an online survey; another 1,400 lawyers will provide "interviews using structured interview instruments."

In response to an email inquiry from this blog, Elizabeth Monkus of the Chicago Appleseed Fund for Justice explained that the JPC is "attempting to identify or control for attorneys with a particular axe to grind, or a single bad experience in front of a judge in a couple ways."

First, Monkus said, survey respondents are asked about their own levels of experience and are also asked straight out how often they've appeared before the particular judge. In addition, Monkus said, "independent social science researchers are serving as consultants to the project, performing statistical analysis of the responses. Their analysis allows us to identify outlier responses and discover patterns in the responses. For instance, it may be that a judge rates very highly in the administrative capacity metric with attorneys that routinely appear in her courtroom, but rates very poorly on the same questions with attorneys who infrequently practice before her. Statistical analysis of the responses allows us to understand conflicting responses to survey questions and allows us to form a nuanced evaluation which accounts for the discrepancies."

Rooney's article mentions that the Chicago Council of Lawyers will also continue to participate in the Alliance of Bar Associations for Judicial Screening and will issue independent ratings. Given the involvement of the CCL in setting up the Commission, I asked Monkus whether separate evaluations from the JPC and CCL might not be seen as a way for the CCL to exercise disproportionate influence over the retention process. In an email, Monkus responded, "No members of the Commission currently serve on the CCL board, nor has any member of the Commission been part of the CCL’s state judicial evaluation process." While representatives of the CCL "helped plan" the JPC, Monkus said that Chicago Appleseed, which is providing "administrative support" for the JPC, is independent of the CCL, although Chicago Appleseed and the CCL "do work together on systemic reform projects."

It should also be noted that two of the JPC's 17 members, Leonard Jay Schrager, a former dean of the John Marshall Law School, and Roy E. Hofer, a partner with Brinks, Hofer, Gilson & Lione in Chicago, are former presidents of the Chicago Bar Association. (For a complete list of Commission members, see this post on page two.) The CBA is also expected to issue separate recommendations on judicial retention hopefuls.

The JPC hopes to complete its surveys and evaluations and issue its retention recommendations by early November. This June 29 post on the Chicago Appleseed blog solicits lawyer-volunteers to assist the JPC in its work. Interested persons will find contact information by following the link in the preceding sentence.

Retention Judges website in development

Judges running for retention will not be dependent solely on surveys of lawyers who appear before them to make their case for retention.

The Cook County Retention Judges website has been launched. Eventually, information for each of the 70 judges up for retention this year will be added, but, as of this writing, the site is still incomplete. If the last election cycle is any indication, some judges will put more effort into making their case for retention than others. This site will provide a place where judges can make their retention claims directly to the voters.

A link to this site has been added to the Sidebar.

ICJL to evaluate retention hopefuls as well

The Illinois Civil Justice League will survey all candidates for judicial office in Illinois and post candidates' responses and other relevant information on Illinois Judges.Net, the ICJL's judicial election website.

According to the July 8 ICJL News Update, Illinois judicial candidates, including all Cook County retention hopefuls, "will be invited to respond to an ICJL questionnaire and include information related to their background and philosophy. Candidate endorsements by various bar associations and newspapers will be included and candidates may provide links to their own websites."

More information on the ICJL surveys, the bar association retention evaluations, the JPC evaluation process, and on the Cook County Retention Judges' own website will be posted on For What It's Worth in the coming weeks.

Where are Chicago's recycling carts?

The Chicago Sun-Times reported yesterday that at least 22,000 blue recycling carts are stashed in a South Side warehouse because the City "ran out of money one-third of the way through" the switch to a long-promised curbside recycling program.

Fran Spielman's linked article suggests that there may be a lot more than 22,000 carts stashed in that warehouse:

Streets and Sanitation employees who've eyeballed the stash insist the actual number is far greater. They say the stacks of carts run 25-deep for at least a block at [the City] warehouse.

Chicago's 600,000 households were all supposed to have curbside recycling by the end of 2011. However, reports Spielman, the curbside recycling program is "now stuck at 241,000 households." The program certainly hasn't reached my corner of the 41st Ward.

The headline on Spielman's article suggests Chicago is throwing away $1 million on the recycling carts. The headline writer got the number from multiplying the admitted number of stored carts (22,000) by the acknowledged $45 unit cost (it comes out $990,000).

But here's my question: Why doesn't recycling make money for the City?

It seems like every private school in the City makes money from recycling newspapers. Someone buys the stuff from the party that's collecting the papers. Those bins are being run as a business, not a charity.

There are all sorts of products made from recycled paper. Illinois Supreme Court Rule 10 encourages lawyers to use recycled paper.

And paper is not the only product that touts its recycled content: Cans and plastic bottles are starting to boast about how little new material they use. People are buying and people are selling. Why isn't the City getting its share? Why aren't we?

Links to challenges to independent judicial hopefuls

Cook County Clerk David Orr's office has posted a link to the challenge to Roger Zamparo's bid to run as an independent candidate in the 11th Judicial Subcircuit. A link has also been posted to the challenge to Keith Thiel's petitions to run in the 14th Subcircuit.

The objections to Thiel's petitions are fairly standard: The Objector's Petition alleges that, though Thiel claims to have secured more than the necessary 2,524 signatures, when forgeries, signatures of voters not registered to vote within the boundaries of the 14th Subcircuit, signatures of persons not registered to vote, and signatures of persons providing incomplete or inaccurate addresses are deleted, Thiel will not have enough valid signatures to qualify for the ballot. These are the kinds of objections one expects to see and it is not possible to evaluate whether the objector has a good case merely from the allegations in the petition.

Objectors' petitions typically refer to attached schedules which purport to document objections in each of these categories. With these schedules, and the actual voter registration records, one could form a judgment as to the strength of the objections in any given case. Of course, this would undermine the role of the Electoral Board. In any event, the schedules are not posted on line. I have not looked into the reasons why. I would think that privacy and potential identity theft considerations may figure prominently in this decision, however.

The objections to Zamparo's candidacy are similar to those raised against Thiel with one significant exception. In the objection to Zamparo's petitions, the objector claims that the State Board of Elections has failed to correctly calculate the signature requirement for independent candidacies in the 11th Subcircuit. The ISBE says Zamparo would qualify for the 11th Subcircuit ballot if he submits at least 1,879 valid signatures and not more than 3,005. According to the Objector's Petition, Zamparo claims to have 2,518 valid signatures. But the objector contends that Zamparo should have submitted at least 3,186 signatures and maybe as many as 4,362. The Electoral Board will have to interpret §10-3 of the Election Code, 10 ILCS 5/10-3. The Board will probably concern itself with the meaning of this sentence:

Nominations of independent candidates for public office within any district or political subdivision less than the State, may be made by nomination papers signed in the aggregate for each candidate by qualified voters of such district, or political subdivision, equaling not less than 5%, nor more than 8% (or 50 more than the minimum, whichever is greater) of the number of persons, who voted at the next preceding regular election in such district or political subdivision in which such district or political subdivision voted as a unit for the election of officers to serve its respective territorial area.

I don't pretend to know how the Board will rule. But there was no judge elected from the 11th Judicial Subcircuit in 2008. Judge Mary Colleen Roberts was elected from the 11th Subcircuit in 2006. She was unopposed in the general election and received 63,722 votes. Five per-cent of 63,722 -- if that is the relevant number -- is 3,186.

A status hearing is scheduled in both cases on Tuesday, July 6.

Objections filed to independent judicial candidates

Objections were filed late this afternoon to the independent judicial candidacies of Roger Zamparo, who filed for the Riley vacancy in Cook County's 11th Judicial Subcircuit, and Keith E. Thiel, who filed for the "A" vacancy in the 14th Subcircuit.

More information will follow as it becomes available.

Independent fever reaches judicial races

Scott Lee Cohen filed for Governor yesterday, as did William "Dock" Walls III. These filings were expected.

What was unexpected, however, at least to this observer, was that petitions would also be filed by attorney Roger Zamparo, seeking to challenge Ann Finley Collins, the Democratic nominee for the Riley vacancy in Cook County's 11th Judicial Subcircuit, and by attorney Keith Thiel, challenging Judge Daniel A. Pierce, the Democratic nominee for the "A" vacancy in the 14th Judicial Subcircuit.

That's a link to Zamparo's campaign website in the preceding paragraph; he also has a Roger Zamparo for Judge Facebook page. I have so far not found a Thiel campaign website; here is a link to his practice website.

Before these recent filings (Thiel yesterday and Zamparo on June 14th), both Collins and Pierce were unopposed in their November election bids. Collins, you may recall, emerged from a very crowded field in the 11th Subcircuit primary; Pierce, who is already serving on the bench pursuant to Supreme Court appointment, was unopposed in his primary bid.

Even in an election year when political independence may be in fashion, these filings come as a surprise because of the sheer difficulty of getting on the ballot.

Cook County subcircuit candidates running in the Democratic primary this year needed 500 valid signatures to qualify for the ballot. This may seem like a small number to some, but only to those who have never tried to circulate petitions. Independent candidates, on the other hand, have to file, in the language posted on the Board of Elections website, "[n]ot less than 5% nor more than 8% of the total number of persons who voted at the last General Election within the district or judicial unit." In the 11th Subcircuit, according the ISBE, that's not less than 1,879 or more than 3,005 signatures. In the 14th Subcircuit, that translates to not less than 2,524 or more than 4,036.

These are onerous requirements, and you can bet that the full resources of the Collins and Pierce campaigns are being marshaled to ascertain whether either Zamparo or Theil have met them. The State Board of Elections reports that copies of both sets of petitions have been requested. This is a prerequisite to any potential challenge. The deadline for challenges to these independent candidacies is June 28.

The new 11th Subcircuit candidate, Roger Zamparo, pictured at right, has been an attorney since 1979. He maintains an office on North LaSalle Street in downtown Chicago. His campaign website says the current focus of his practice in civil litigation, "especially mortgage fraud cases," he claims a variety of experience in "divorce, real estate, personal injury, employment, criminal, and professional malpractice" cases.

14th Subcircuit hopeful Keith Thiel has been an attorney since 2004. His office site focuses on his representation of defendants in criminal cases but the site advises that Thiel is also available to handle bankruptcy, personal injury, divorce and real estate cases.

Corrected June 30, 2010.

Celia G. Gamrath appointed to Chiola vacancy

The Illinois Supreme Court has appointed Celia G. Gamrath to the 8th Subcircuit vacancy created by the retirement of Judge Thomas R. Chiola.

Gamrath is currently a partner with Schiller, DuCanto & Fleck LLP. Gamrath joined that firm in 1998, after a stint as law clerk to then-Appellate Court Justice Thomas R. Rakowski. A 1994 graduate of John Marshall Law School, where she served as lead articles editor of the law review, Gamrath did her undergraduate work at Indiana University, receiving a business degree in 1991. (Her firm bio notes that Gamrath also had a minor in Spanish at IU.)

Gamrath served on the United States Magistrate Judge Merit Review (in 2008) and Magistrate Selection Panel (in 2007 and 2009) for the Northern District of Illinois. She has served on the Illinois Supreme Court Committee on Character and Fitness since 2004.

Gamrath also served as the President of the Justinian Society of Lawyers in 2006-07. She co-chair the Chicago Bar Association's Alliance for Women in 1999-2000 and has been a member of the Board of Directors of the Chicago Bar Foundation since 2004 (and has served as Secretary since 2007).

A member of the Assembly of the Illinois State Bar Association since 1997, Gamrath also served on the ISBA's Board of Governors from 2005-2008. She has served on the Board of Trustees of the John Marshall Law School since 2007 (Secretary since 2008) and was President of the Law School Alumni Association in 2003-04.

Gamrath's appointment is effective June 10 and will expire on December 3, 2012.

Protection principle provides framework for handling terror cases?

The arrest of Times Square bombing suspect Faisal Shahzad raises anew the question of how and where to try accused terrorists.

Shahzad is a naturalized American citizen, and it seems a virtual certainty that he will be tried in a 'civilian' federal court. This seems particularly likely in light of the Obama administration's promise late last year to try alleged 9/11 mastermind (and Kuwaiti native) Khalid Sheikh Mohammed in the Southern District of New York -- although the government has retreated from this position somewhat since. (Recently, Attorney General Holder said that there has been no final decision about where Khalid Sheikh Mohammed's trial will take place or even whether it will be held in a civilian court. Sources: Jake Tapper, ABC News, mystateline.com.)

But, sadly, as Shahzad's case reminds us, there will be other terror attempts. And, if Shahzad is an American citizen, Umar Farouk Abdulmutallab (the "Underwear Bomber") was not.

An article by Philip Hamburger, the Maurice & Hilda Friedman Professor of Law at Columbia Law School, Beyond Protection, 109 Colum. L. Rev. 1823 (Dec. 2009), looks to the principle of "protection" for a way to explain why it may well be appropriate to handle Shazad and Abdulmutallab differently. As the summary of the article explains, "Under the principle of protection, as understood in early American law, allegiance and protection were reciprocal. As a result, a person without allegiance was without protection, including the protection of the law. Not owing allegiance, such a person had no obligation to obey American law; moreover, not having protection, he had no rights under such law." In other words, the government has different obligations to citizens who engage in terrorism as opposed to foreigners who try to commit terrorist acts in this country. Explains Hamburger, "The principle thereby permits the nation to defend itself without having to compromise civil liberties." (109 Colum. L. Rev. at 1833.)

I do not pretend to have read the article. I was attracted to it, though, by an article about Professor Hamburger's article appearing in the current issue of the Wilson Quarterly.

Elected judges not "more biased or incompetent than their appointed counterparts"

That's the position taken by Eric Posner, the Kirkland and Ellis Professor of Law at the University of Chicago, in the May 17 issue of Newsweek.

Professor Posner writes that ongoing research, in which he and colleagues from Duke and New York Universities are engaged, supports this conclusion. Elected state court judges, says Posner, are more productive than their appointed brothers and sisters (as measured by the numbers of opinions produced), "nearly as professionally respected (as measured by citations per opinion), and no less independent (as measured by their willingness to disagree with judges in their own party)."

Posner's bottom line: "[A]s long as judges, like politicians, have the power to shape law through their decisions and interpretations, they must be accountable to their communities."

Mortgage foreclosure mediation program launched

Circuit Court of Cook County Chief Judge Timothy C. Evans has announced a program to assist struggling homeowners facing foreclosure.

According to the Circuit Court's press release (linked above), the Cook County Mortgage Foreclosure Mediation Program "will provide free housing counseling and legal services to Cook County homeowners and families in foreclosure. The program is aimed at helping homeowners resolve their mortgage cases in the most timely and respectful manner possible."

Judge Evans said, "The program's goal is to deliver critical services to homeowners as early as possible once the foreclosure process begins. In this way, homeowners in crisis are assured of receiving the support and information they need to explore fully their options either to stay in their homes or to negotiate a respectable exit."

To be eligible for this program, a person must be the owner and occupant of a 1-4 family home or condominium. Investment properties are not part of this program. The property being foreclosed must be in Cook County and must be the borrower-defendant's primary residence. Finally, the program applies to all foreclosure cases with an initial case management date on or after June 11, 2010. All such cases will have been filed on or after April 12.

Although I do not handle mortgage foreclosure cases, I took the opportunity to attend an April 9 briefing by Judge Dorothy Kirie Kinnaird, the Presiding Judge of the Chancery Division, offered for practitioners. In her remarks, Judge Kinnaird stressed that the program is not meant to delay foreclosure when foreclosure is appropriate; mediation will be allowed only when there is "something to negotiate." In some cases, there may be nothing at all to mediate, although there still may be an opportunity to work out a dignified way to leave the property.

Who decides whether there is something to negotiate in any given case?

The first step in determining whether a homeowner will be able to stay in his or her home is to contact a HUD-certified housing counselor. Any homeowner sued for mortgage foreclosure summons after April 12 should be served with a new five page summons. The second page of the new summons form provides the information that a homeowner needs to pay attention to in order to participate. Among the items on that notice is a toll-free number to call to set up a meeting with a HUD-certified housing counselor that is participating in the Cook County program. Information about securing legal representation is also included on that form. Interested readers can find out more about these services by visiting cookcountyforeclosurehelp.org.

Homeowners facing foreclosure may be contacted by all sorts of people offering to help. Unfortunately, some of these people may only be out to help themselves. Sadly, there are people who would prey on distressed homeowners. Homeowners must be careful to deal only with knowledgeable attorneys and reputable, HUD-certified housing counselors.

According to Judge Evans, the Cook County Mortgage Foreclosure Mediation Program is an unprecedented partnership between the Circuit Court of Cook County and several state and local organizations. According to the court's press release, the program is funded by the Cook County Board and administered by the Circuit Court's Chancery Division, the Circuit Court "and partner organizations, including the Illinois Housing Development Authority, The Chicago Bar Foundation and The Chicago Community Trust." The program will work with "attorneys and mediators from the Center for Conflict Resolution, the Chicago Legal Clinic and Chicago Volunteer Legal Services to provide access to free assistance to homeowners who have received a summons to appear in court."

Lawyers needed to protect against Internet trolls and improper incursions into online privacy

In his Friday column in the Chicago Tribune, John Kass wrote about anonymous, malicious Internet trolls. He wasn't writing about the ones who respond to his columns online (or to any other news article or opinion column on a mainstream media website) -- though these are bad enough. Kass was writing about college kids trashing one another on an anonymous website called College ACB (Anonymous Confession Board). The name may put one in mind of other confessional sites like Post Secret -- but Kass says the name is misleading. "Is it a confession to tell the world that someone named Tina is a slut crawling with disease?" Kass asks.

And even the "press release" describing the site does not pretend it is for kids to secretly confess their own failings. According to its "press release," College ACB "is the campus center, the dorm room, the cafeteria, and the lecture hall, all combined into a single, easily accessible forum where everyone is invited to converse openly, without fear of reprisal or reprimand. From sexuality to politics, from keg parties to concerns about course selections, the ACB is a website that helps build community and engenders the open exchange of information."

If Kass is correct, though, the real focus of ACB is providing a platform where college kids can say the most vile things about other college kids, even identifying them by name. Kass sums up thusly: "It's all about anonymous cruelty."

Kass suggests that sites like College ACB will eventually fade away. He speculates that lawyers will be part of the solution -- and he's not happy about it. He concludes:

"Both the law and the Internet are evolving as new cases arrive," said Sam Bayard, assistant director of Harvard University's Citizen Media Law Project. "In the absence of a Supreme Court case that takes up how this should work, it will continue to be a patchwork of legal doctrines."

Yet sooner or later, the Supreme Court will get around to it. The trolls will be identified, perhaps on "Expose the Trolls Who Dissed You on ACB" or on some libel law firm's site like "cashfortrolls.com."

There is one species even more bloodthirsty and relentless than the Internet trolls:

Lawyers.

And like reality, they bite.

Mr. Kass: Why are lawyers bad here? What's the problem with the law evolving on a case by case basis? The common law has been evolving since the reign of Henry II. Progress has been uneven, certainly, and not always free of controversy -- but human rights have advanced since the 1100s, haven't they? And, anyway, what's wrong with exposing Internet trolls to the sunshine -- and defamation liability? What's the alternative? Repeal of the First Amendment?

Gosh, I hope not.

Modern technology has made the First Amendment more important than ever. The Fourth Amendment, too. A man's home may still be his castle, but the battlements needn't be breached before the inhabitants' privacy is. In suburban Philadelphia, for example, the Lower Merion School District is being sued because security software in school-issued Macintosh laptops was used to take pictures of students in their own homes. According to this AP story by Mary Claire Dale, The software allegedly let Harriton High School technology personnel take "over 400 screen shots and webcam images" of sophomore Blake Robbins. (ABC News coverage here.)

The school may have been authorized to activate its spy technology when students failed to pay the required insurance for the laptops, or failed to return them at year end. But 400 images of one student? Awake, asleep and undressing?

In other technology/privacy news, the Federal Department of Justice just dropped efforts to obtain warrantless access to certain Yahoo! Mail accounts pursuant to an application under 18 U.S.C.A. §2703(d). This is not a change in heart prompted by a change of administrations: The government has been pursuing this application for some time since Mr. Obama's election(see this related April 13 CNET story for background.)

Yes, government lawyers are pursuing a number of courses that endanger the expectation of privacy that we have in our emails and other private electronic communications -- this February 11, 2010 CNET article, for example, relates how the DOJ has filed a brief trying to uphold the convictions of bank robbers who were tracked through their cell phones, arguing that cell phone users have no reasonable expectation of privacy concerning their cell phones' location.

But other lawyers are resisting and trying to find an appropriate balance between the needs of society as a whole in fighting crime and individuals who don't like being tracked like migratory caribou with radio-transmitting collars.

I would hate to think that the price we must pay for holding on to the shreds and tatters of our remaining privacy in modern, high-tech America is the tolerance of Internet trolls defaming our children. I prefer to think courts and lawyers will and should play a helpful role in helping to establish new and acceptable Internet behaviors that respect privacy, anonymity, and our families. Even -- aside to Mr. Kass -- if some of them make a couple of shekels in the process.

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Image obtained from this site.

Connecticut pol sues self -- certain of victory?

As Connecticut's Secretary of State Susan Bysiewicz explains and defends that state's election laws. But Bysiewicz wants a new job this year; she wants to be elected Connecticut's Attorney General.

By statute, however, a candidate for attorney general in Connecticut must be "an attorney of at least ten years' active practice at the bar of this state." (CGS 3-124). Bysiewicz was a corporate lawyer for eight years before entering politics, but two of these were spent in New York City. She's been Connecticut Secretary of State for more than a decade.

Is that sufficient to meet the statutory requirement? According to this AP story (by Stephanie Reitz) and this press release on Bysiewicz's campaign website, Bysiewicz is contending that (a) her experience is sufficient to meet the requirement and (b) even if her experience is insufficient, the requirement is unconstitutional.

Reitz's story for the AP notes that Republicans have had a field day with Ms. Bysiewicz's suit. The Connecticut GOP was so thrilled about the case that it actually volunteered to join it -- as a defendant -- so it could depose Bysiewicz and force "her to acknowledge... that she's never tried a case and hasn't been in a courtroom since law school." Indeed, Reitz writes, Bysiewicz "acknowledged under grilling by a GOP lawyer that she has never used the manual of Connecticut court procedures and rules governing attorneys, had never sat at a counsel table and had never been to a deposition or been a witness in a case."

Meanwhile, Bysiewicz's campaign bio says that she's a "graduate of Yale College and Duke University School of Law, [that] she is admitted to practice in both New York and Connecticut and has practiced corporate and international law at the law firm of White & Case in New York City, as well as corporate and banking law at Robinson & Cole in Hartford. In addition, Bysiewicz has practiced pension and health care law in the law department of the Aetna Insurance Company."

And they're all talking about the same person, too.

This story seems like an update of the old story about the time Abe Lincoln was on opposite sides of the same issue in two cases argued on the same day in the Illinois Supreme Court. The judges couldn't help but notice. "Surely, Mr. Lincoln," said one of the learned justices, "you can't expect to win both these cases."

"Well, no, Your Honor," replied Honest Abe, "but I figure to win one of them."

Here Bysiewicz is suing herself. One way or the other, she's gotta win this case, right?

More seriously, the constitutional challenge in Connecticut may help to explain why, in Illinois, calls to require minimum legal practice experience requirements for would-be judges are always framed as constitutional amendments. (See, for example, HJRCA 57.)