First campaign website -- and fundraiser -- of the 2012 season

Judge Deborah Jean Gubin, who was appointed last year to the 8th Subcircuit vacancy created by the retirement of Judge Maureen Durkin Roy, has launched a campaign website in a bid to remain on the bench after the 2012 elections. That's a link to the campaign website in the preceding sentence. (Judge Gubin also has a campaign Facebook page; this page appears to be currently accessible only to those signed into Facebook, but I provide the link because the apparent intent is to make that page public.)

Judge Gubin has scheduled a fundraiser for Thursday, June 30, 2011, from 5:00 to 7:00pm at La Rosetta, 70 West Madison Street. Tickets are scaled from $100 to $1,000. More information is available on the campaign website.

---------------------------------------------
Updated 6/28/11

Regina Ann Scannicchio appointed to 14th Subcircuit vacancy

The Illinois Supreme Court has appointed Chicago family law attorney Regina Ann Scannicchio to the 14th Judicial Subcircuit vacancy created by the resignation of Judge Lawrence O'Gara.

Scannicchio was among the finalists when Associate Judges were last chosen in 2009. A 1988 graduate of John Marshall Law School, Scannichio is a member of the Executive Committee of the law school's Board of Directors. Her appointment is effective July 5, and terminates on December 3, 2012.

Who currently sits where - 2012 edition

Updated 6/24/11
Updated 7/8/11
Updated 7/16/11
Updated and Republished 8/8/11

Most Cook County judicial vacancies aren't really vacant.

When a judge leaves office, the Illinois Supreme Court will usually fill the vacancy by temporary appointment.

In order to remain on the bench, the persons appointed must usually seek election, either to the seats to which they were appointed, or to some other vacancy.

Sometimes the Cook County Democratic Party will back the judge appointed by the Supreme Court, but not always. Sometimes the party will slate the appointed judge for a different vacancy -- and sometimes the appointed judge will receive no party backing at all.

What follows is a list of the vacancies I've compiled and the identity of the person appointed.

I mean no disrespect to anyone whom I've omitted and expect to update the list as circumstances require:

Countywide Vacancies
Vacancy of the Hon. Claudia Grace Conlon -- Stanley L. Hill
Vacancy of the Hon. Daniel E. Jordan -- Jean M. Prendergast
Vacancy of the Hon. Dorothy Kirie Kinnaird -- Erica L. Reddick
Vacancy of the Hon. John J. Moran -- Russell W. Hartigan
Vacancy of the Hon. Donald J. O'Brien, Jr. -- Peter J. Vilkelis
Vacancy of the Hon. Aurelia Pucinski -- Thomas R. Allen
Vacancy of the Hon. Victoria A. Stewart -- Caroline K. Moreland
Vacancy of the Hon. John A. Ward -- Alfred M. Swanson, Jr.


3rd Judicial Subcircuit
Vacancy of the Hon. Patrick E. McGann -- Maureen Leahy Delehanty
Vacancy of the Hon. Colleen McSweeney-Moore -- Thomas J. Carroll


4th Judicial Subcircuit
Vacancy of the Hon. Jennifer Duncan-Brice -- Daniel L. Peters
Vacancy of the Hon. Daniel A. Riley -- Kevin Horan


7th Judicial Subcircuit
Vacancy of the Hon. Cheryl A. Starks -- Tommy Brewer
Vacancy of the Hon. Lawrence W. Terrell -- Lorna Propes
Vacancy of the Hon. Amanda Toney -- Arthur P. Wheatley


8th Judicial Subcircuit
Vacancy of the Hon. Thomas R. Chiola -- Celia G. Gamrath
Vacancy of the Hon. Melvin J. Cole -- James L. Kaplan
Vacancy of the Hon. Maureen Durkin Roy -- Deborah J. Gubin
"A" Vacancy -- Laura C. Liu


9th Judicial Subcircuit
Vacancy of the Hon. Gerald C. Bender -- Lionel Jean-Baptiste
Vacancy of the Hon. James R. Epstein -- Mary S. Trew


10th Judicial Subcircuit
Vacancy of the Hon. Daniel M. Locallo -- Anthony C. Kyriakopoulos


11th Judicial Subcircuit
Vacancy of the Hon. Edward P. O'Brien -- Michael R. Clancy


12th Judicial Subcircuit
Vacancy of the Hon. Mary K. Rochford -- Andrea M. Schleifer


13th Judicial Subcircuit
"A" Vacancy -- Ketki Shroff Steffen


14th Judicial Subcircuit
Vacancy of the Hon. Lawrence O'Gara -- Regina Ann Scannicchio

Norwood Park salutes Memorial Day

The Norwood Park Memorial Day Parade winds through residential streets in this Northwest Side community. My daughter Brigid captured these scenes yesterday.




You'll note the kids holding their ears:




The Vietnam Veterans were represented:


The Grand Marshall of this year's Norwood Park Memorial Day Parade was Ray E. Donovan.


You can't have a parade without politicians. Groups marched on behalf of State Rep. Michael P. McAuliffe and newly elected 41st Ward Alderman Mary O'Connor.









Commissioner Frank Avila of the Metropolitan Water Reclamation District also walked the route.


The Taft High School Naval JROTC and marching band provided appropriate entertainment.






The Kelvyn Park High School Band also marched:


For more photos from yesterday's parade, turn to Page Two.

Michael R. Clancy appointed to Circuit Court

The Illinois Supreme Court has appointed Oak Park attorney Michael R. Clancy to an 11th Subcircuit vacancy created by the retirement of Judge Edward P. O'Brien.

Clancy's appointment is effective May 27, 2011 and will terminate on December 3, 2012. Clancy has been licensed as an attorney in Illinois since 1989. Clancy has sought judicial office previously. He was a candidate for the countywide Hett vacancy in 2002. He also ran for an 11th Subcircuit vacancy in 1998.

Theory and practice of collateral source rule

Overlawyered has a post today, "Plaintiff seeks phantom damages 6 times greater than actual costs”, citing to an article on the Colorado Civil Justice League blog.

It seems the CCJL is critical of a recent decision by that state's Supreme Court, Volunteers of America Colorado Branch v. Gardenswartz, 242 P.3d 1080 (Colo. 2010), because that case would apparently allow a plaintiff in a currently pending action to seek as medical expenses an amount six times the amount actually expended on his behalf. The discrepancy stems from the difference between the amount billed for medical treatment and the amount that the treater accepts in settlement of the bill. Although the Volunteers of America case turns on the interpretation of Colorado statutes and the CCJL article concerns a proposed amendment to the Colorado statutes that would overturn that result, the subject of the case, the collateral source rule, is of interest to tort reformers, lawyers, judges, and other shapers of public policy all over the country.

In Illinois, the collateral source rule was recently explained (and reaffirmed) in Wills v. Foster, 229 Ill.2d 393, 892 N.E.2d 1018 (2008). In Wills, the Illinois Supreme Court explained (229 Ill.2d at 399):

"'Under the collateral source rule, benefits received by the injured party from a source wholly independent of, and collateral to, the tortfeasor will not diminish damages otherwise recoverable from the tortfeasor.'" [citing Arthur v. Catour, 216 Ill.2d 72, 78, 833 N.E.2d 847 (2005), and quoting Wilson v. The Hoffman Group, Inc., 131 Ill.2d 308, 320, 546 N.E.2d 524 (1989).] As set forth in section 920A(2) of the Restatement (Second) of Torts (Restatement (Second) of Torts § 920A(2), at 513 (1979)), the rule provides that, "Payments made to or benefits conferred on the injured party from other sources are not credited against the tortfeasor's liability, although they cover all or a part of the harm for which the tortfeasor is liable." The rule has been described as an "established exception to the general rule that damages in negligence actions must be compensatory." 25 C.J.S. Damages § 172 (2002). Although the rule appears to allow a double recovery, the appellate court correctly noted that, typically, the collateral source will have a lien or subrogation right that prevents such a double recovery.

It is the lien or subrogation rights of third parties -- that vary widely from state to state -- that make sweeping generalities about the collateral source rule difficult to formulate.

In a rational world, the collateral source rule would be easy to understand and apply. Consider: Dan Driver is cruising down Main Street with one hand on the wheel and the other on his smart phone, texting his strong views about boycotting Donald Trump to NPR. Thus distracted, he fails to see (1) the light turn red on Main Street and (2) Peter Pedestrian entering the crosswalk, with the Walk light, attempting to cross the street directly in Driver's path. Happily, Pedestrian survives the collision. The hospital charges $50,000 to fix Pedestrian up. Pedestrian writes a check. When Pedestrian sues Driver for negligence, what part of his medical bills, if any, may he hope to recover against Driver?

No one would quibble with Pedestrian's right to recoup his entire $50,000 outlay. There's no "collateral" source in that example at all; Peter can recover what Peter paid. But what if Pedestrian had armed himself with health insurance? In our rational world example, the entire $50,000 hospital bill is now paid by the insurance company. Under the collateral source rule, Pedestrian can still recover the entire $50,000. Why should he be penalized for having the foresight to procure health insurance? Not everyone may see the fairness in such a rule... until the proposition is flipped around: Why should Driver obtain a windfall because he had the good luck to hit an insured person?

It's when we leave the rational world and rejoin the real one that things get complicated.

If Peter had insurance in the real world, the hospital bill might have been $75,000 and the insurance company might have paid $30,000. If Peter had no insurance, the hospital bill might have been $150,000 and Medicaid might have paid $12,000. Eventually. (We can defer to another time the very real question of why a hospital would bill a person who has no insurance more for the same services than it would bill a person who has insurance.) If Peter's accident was in Illinois, the private insurer might have subrogation rights; Public Aid would assert a lien. If Peter were a senior citizen, the hospital bill might have been still another amount. Medicare would pay some small fraction -- which may or may not bear some relation to the eventual Medicare lien.

With the hospital bill a moving target, the collateral source rule becomes a little harder.

In trying to figure out what amount plaintiffs like Peter Pedestrian get to present in damages cases, courts in various states have come up with three distinct approaches. The Wills court, citing Bozeman v. State, 879 So.2d 692, 701 (La.2004), identified these as (229 Ill.2d at 404): (1) actual amount paid; (2) benefit of the bargain; and (3) reasonable value.

Under the actual amount paid approach, as the name suggests, the court focuses "on the objective of compensatory damages as making an injured party whole," allowing the jury to hear only the amount actually paid by whatever source -- plaintiff, insurer, public aid. The theory, as the Wills court explained, "the written-off [or contractually adjusted] amounts are not damages incurred by the plaintiff." (229 Ill.2d at 405.)

Courts using the the benefit of the bargain approach distinguish between plaintiffs who have paid some consideration for the benefit received from the collateral source (e.g., insurance premiums) and those who have not (e.g., Medicaid recipients). The Wills court explained (229 Ill.2d at 406), "Under this approach, courts allow plaintiffs who have private insurance to recover the full amount of their medical expenses because they have bargained for the benefits they received. These courts also hold that plaintiffs whose bills are paid by Medicaid may not recover the reasonable value of their medical expenses and are limited to the amount paid by Medicaid. The courts distinguish between Medicare and Medicaid recipients, holding that, unlike Medicaid recipients, Medicare recipients should be treated the same as those with private insurance because Medicare recipients pay for their coverage through compulsory payroll taxes." The Illinois Supreme Court noted that this approach as been criticized as "discriminatory" and because it "undermines the collateral source rule by using the plaintiff's relationship with a third party to measure the tortfeasor's liability." (229 Ill.2d at 406-407.)

But, in Wills, the Illinois Supreme Court explained that this state follows the "reasonable value" approach. Most states follow this approach, the Wills court stated, although even here there is a majority and minority position. The minority position, the court stated (229 Ill.2d at 408), allows a plaintiff to seek only what was actually paid; however, the "vast majority of courts to employ a reasonable-value approach hold that the plaintiff may seek to recover the amount originally billed by the medical provider." (229 Ill.2d at 410.)

But is that "reasonable?" Well, in Illinois, "a paid bill constitutes prima facie evidence of reasonableness." (Wills, 229 Ill.2d at 403.) After Arthur v. Catour, 216 Ill.2d 72, 833 N.E.2d 847 (2005), however, some defendants suggested that it would be appropriate to also introduce the actual paid bills. There are states that allow both sets of bills to come in. See, Martinez v. Milburn Enterprises, Inc., 290 Kan. 572, 233 P.3d 205 (Kan. 2010) (both the amount billed and the amount actually paid would be admissible and the "finder of fact shall determine from these and other facts the reasonable value of the medical services provided to plaintiff"). But, by statute, Kansas prohibits insurers from issuing "contracts of insurance in Kansas containing a 'subrogation' clause applicable to coverages providing for reimbursement of medical, surgical, hospital or funeral expenses" (233 P.3d at 229).

In Illinois, however, where subrogation is a fact of life, Wills explained (229 Ill.2d at 218) that, in Arthur, "this court made clear that the collateral source rule 'operates to prevent the jury from learning anything about collateral income' (emphasis added) and that the evidentiary component prevents 'defendants from introducing evidence that a plaintiff's losses have been compensated for, even in part, by insurance.'" Under Wills, "defendants are free to cross-examine any witnesses that a plaintiff might call to establish reasonableness, and the defense is also free to call its own witnesses to testify that the billed amounts do not reflect the reasonable value of the services. Defendants may not, however, introduce evidence that the plaintiff's bills were settled for a lesser amount because to do so would undermine the collateral source rule." (229 Ill.2d at 218.)

Tort reformers, like the Colorado group in today's Overlawyered post, have serious problems with the collateral source rule. But the problems in the application of the collateral source rule are at least as much the fault of irrational medical billing practices as anything.

Local kid wins Irish dance world championship

A kid from west suburban Villa Park has won the boys’ gold medal in the Under 14 category at the 41st World Irish Dance Championships, now ongoing in Dublin. On April 18, 13-year old Peter Dziak became the first solo gold medal winner in this category in the 30-year history of Chicago's famous Trinity Academy of Irish Dance. (Until yesterday, the boys' U14 category was the only category that had not been won by dancers from the Trinity school.)

Persons familiar with this blog may be pleased to learn of young Mr. Dziak's splendid victory but question the reason for my ranging so far afield from the usual sort of post offered here.

As it happens, there is a perfectly good reason. Peter Dziak is the son of Joan and Dick Dziak. Joan Dziak (nee Sullivan) is my cousin. Me and my two left feet are happy and proud for all of them.

Incidentally, I pulled Peter's picture from the linked story in TimeOut Chicago Kids. The photo credit is given to Anne Dziak, Peter's sister. On April 21, Anne sheds her photojournalist persona and becomes a competitor at "the Worlds" herself.

Looking more at the Madigan judicial recommendations

The story in this weekend's Chicago Tribune, Madigan letters offer glimpse of clout in Cook County judge selection, will be seen by some as further evidence of systemic corruption or, at least, wholly undue political influence on our judiciary.

But is it?

The article, by Tribune reporters Jeff Coen and Todd Lighty, 'reveals' that the Michael Madigan, the Speaker of the Illinois House, has sent letters to judges advising of his preferences during recent associate judge selections. (Associate judges are elected by sitting circuit judges from a list of finalists put together by a committee of circuit court judges. The graphic below, copied from today's Tribune, is intended to illustrate the process.)

(Click to Enlarge)

The 'revelation' that a prominent public figure would have and express opinions about who should attain the bench is about as newsworthy as a revelation that the Sun rises in the east and sets in the west. Indeed, the Tribune article notes that, in addition to Madigan, "[Ald. Edward] Burke, former state Sen. President Emil Jones, D-Chicago, and a variety of other local politicians also promote candidates for the associate judge spots."

In fact, the very first thing that happens after application process closes, at least in recent years, is that the Cook County Chief Judge's office publishes the names of all applicants and solicits comments from the public. Non-lawyers reading this post may be surprised to learn this; most lawyers will be familiar with notices in this regard published every day for at least a couple of weeks in the Chicago Daily Law Bulletin (I can't recall, at this moment, how long the notices usually run). The Chicago Tribune or Sun-Times could publish this list as well but -- to my knowledge -- neither has.

In any event, the Tribune's angle can not be that Mr. Madigan makes recommendations; recommendations can be made by anyone. A closer reading of the Tribune article suggests that the concern is, rather, that Mr. Madigan makes so many recommendations and that these are so successful.

According to the Tribune, "Since 2003, Madigan has recommended 37 lawyers to become associate judges, and 25 were selected outright." Roughly two out of three people recommended by Mr. Madigan, therefore, were appointed as associate judges and, according to the Tribune, others made it to the bench through appointments. (In Illinois, the Supreme Court can fill vacancies by interim appointment. Sometimes the persons appointed will later be elected to these vacancies; sometimes not.)

That so many persons attain the bench after receiving the Speaker's recommendation seems extraordinary. However, in recommendations, as in everything else in this world, timing is everything.

The Tribune obtained copies of Mr. Madigan's letters from 2003, 2005, 2007, 2008 and 2009. The 2007 letter is undated, but the 2008 letter is dated August 18; the 2009 letter is dated August 24.

In other words, these letters -- at least -- were written after the major winnowing of the applicants had already been accomplished. For example, as the Tribune article notes, there are now 240 persons hoping to be selected to 10 associate judge positions now open (full disclosure: I am one of these 240). Assuming the number of vacancies does not increase while the evaluation process is completed, this pool will be reduced to only 20 "finalists." (Two finalists must be certified for each by a nominating committee composed of Cook County Circuit Court judges; see, Supreme Court Rule 39.)

If one makes recommendations only from the finalists' pool, the odds of making successful recommendations are pretty good: After all, half of those on the finalists' list will be chosen.

Nine associate judges were chosen in mid-September 2008. The August 18, 2008 letter was, therefore, issued after the finalists' list appeared. The 2009 finalist list came out on August 20; ten associate judges were chosen on September 25. Mr. Madigan's letter was dated August 24.

Getting a little further inside the numbers, only one of Mr. Madigan's three recommendations was elected an associate judge in 2009 (although another was subsequently appointed by the Supreme Court to a circuit vacancy). On the other hand, six of the eight persons named in the Speaker's 2008 letter are now associate judges, while another was elected as an associate judge in 2008 and then won election (that same year) as a full circuit judge from the 13th subcircuit. But two of these successful 2008 aspirants were also named in the Speaker's 2007 letter; the Speaker's recommendation did not carry the day for them on that occasion.

In other words, a recommendation from the Speaker is obviously something that boosts the chances of a judicial hopeful, but it is not dispositive. And a lot of judicial hopefuls don't achieve their ambition the first time -- or even the second, third or fourth time -- even with apparently powerful sponsors. (I'd prefer not to have to total up how many times I've applied.)

Persons concerned about undue political influence in the associate judge selection process should keep in mind that new judges are chosen by Cook County circuit judges voting by secret ballot. Politicians, even the most powerful ones, have limited influence over circuit court judges. An offended politician can not slate someone to run against a circuit judge at the next election. (Once elected, circuit judges only have to face a retention ballot every six years.) I therefore see nothing intrinsically wrong in either desiring or obtaining this sort of recommendation.

Illinois the best state in which to make a living?

That's the perhaps surprising conclusion of this article posted today on Yahoo! Finance. The April 12 article, by Kathy Kristof of CBS MoneyWatch.com, more or less summarizes this April 5 article by Richard Barrington on MoneyRates.com.

Barrington's article cites four factors that were considered by MoneyRates.com in calculating "adjusted-average income." These were:

• Average state wages
• State unemployment rate
• State tax rate
• State cost of living

Based on all these factors, MoneyRates.com calculated an adjusted-average income for each state - the average income adjusted for your chances of finding a job, how much you would lose to state taxes, and how much purchasing power that income would have based on the cost of living in that state.

Applying these factors, MoneyRates.com decided that Illinois is the best state in the nation in which to make a living. Of Illinois, the article states in pertinent part (emphasis supplied):

At $41,986.51, Illinois had the best adjusted-average income. The unemployment rate in Illinois is not especially low, but the state benefits from relatively high average wages, a low state tax rate, and a below-average cost of living.

Low tax rate?

I wanted to check when the articles were posted, just to verify that the source articles didn't pre-date our recent income tax hike. As you'll note, the source article is quite recent -- posted only 8 days ago -- and, thus, post tax hike.

Illinois gets a lot of bad press these days for its supposedly hostile business climate. But if an argument can be made that our state is the best state in which to make a living, maybe our problems aren't so hopeless after all.

Interestingly, neither Indiana nor Wisconsin makes the Top 10 list. Hawaii tops the MoneyRates.com list of the worst states in which to make a living.

Recycling the old-fashioned way

My wife and I had accumulated a couple of burnt-out compact fluorescent light bulbs, a bunch of dead batteries, and a pile of electronic junk over the past several months. On April 2, we loaded it all in the family van and headed to the City of Chicago Household Chemicals and Computer Recycling Facility at 1150 N. North Branch Street.

The City facility is open for drop-offs only on the following days:

• Tuesdays (7 am – 12 pm)
• Thursdays (2- 7 pm)
• The first Saturday of every month (8 am – 3 pm).

We got rid of the batteries and CFL's -- but we had decidedly mixed results in our efforts to get rid of the electronics.

An old inkjet printer was cheerfully accepted, as were a bunch of old computer cables. But a burnt out coffee maker was rejected, as was an old CD/radio/cassette player (which, with its detachable speakers, was quite the almost-portable entertainment center in its day). We had a string of long-dead Christmas lights we'd been meaning to get rid off as well -- but it, too, was rejected.

Sure enough, when I went back to check, "stereo equipment" was on the list of items that the City would not accept. But the facility will take old DVD and MP3 players. (The link in this paragraph will take you to the complete list of what the City will and will not accept at the North Branch Street facility.)

I don't understand why the City makes these distinctions.

Aren't cassette players and DVD players both made from similar components? Isn't it the innards that have value? I keep hearing about the 'cost' of bringing blue cart recycling to Chicago, but I never hear about the revenues that should be realized from recycling. After all, every grade school in the area raises funds by hosting newspaper collection bins. Presumably the companies paying the schools for old newspapers would not be doing that unless they were selling the newspapers at a profit somewhere else. Aren't there similar marked for old plastics and so forth?

I'm looking into these questions and I propose to report back here on what I find out.

In the meantime, though, I found a way to recycle the old boom box: I put it out next to the garbage cart the night before our regular pickup. In the night, someone came by and took it. Recycling -- old school.

Paper, plastic, cloth -- or just bag the whole thing? You and the grocer may have different "green" issues

Your local grocers may not be entirely motivated by concern for the environment when they urge you to bring cloth bags to carry home your purchases. It turns out that plastic bags cost nearly two cents each. The useful, versatile paper bags (let me reveal my bias early) cost a nickel each.

These figures were revealed this week in a Wall Street Journal article explaining how Supervalu (the company that runs the Jewel chain here in Chicago) is training its employees to use fewer bags when packing groceries. The WSJ article even had this handy chart showing how things are to be done.

It turns out that those pennies and nickels add up: Since Supervalu initiated these changes in mid-2009, the linked Journal article says, "it has boosted its average items per bag about 5%, saving $4 million to $6 million annually even as prices for plastic bags have climbed."

Baggers at grocery stores have been automatically using plastic instead of paper for some time unless the customer asks quickly (as the Journal article confirms) -- but I'm not sure why.

Both paper and plastic bags can be recycled but, in a landfill, plastic is forever.

According to Wikipedia, plastic bags are "often made from polyethylene, which consists of long chains of ethylene monomers. Ethylene is derived from natural gas and petroleum." Most plastic bags, Wikipedia says, are somehow derived from natural gas, not petroleum. But plastic bags still come from fossil fuels; paper bags come from trees, a renewable resource.

And are plastic bags really cheaper than paper bags? If the customer is taking home only an item or two, the smaller, cheaper bag may be more cost-effective than a paper bag. But many more items can be packed into a paper bag than a typical grocery store plastic bag. So, on larger orders, is there a cost advantage?

Cloth bags make the best economic sense for the grocers, but these only make environmental sense for customers up to a point. Paper bags can be used instead of plastic trash bags in the home for household garbage. Newspapers can be stacked neatly inside of paper bags while they wait for a trip to the recycling bin. Even old plastic bags can have household uses. A lot of people wouldn't be able to walk their dogs without them.

To be as "green" as possible, bring cloth bags to the store -- but not so many that you don't get a few paper (or, I suppose, plastic) bags for household needs.

-------------------------------------------------------------
Related:'Paper or Plastic' Saving Cash at Jewel, NBC5 Chicago

Will Jewel-Osco's checkout changes leave shoppers holding the bag?, Chicago Sun-Times, March 26, 2011

Supreme Court decides judicial residency case

In Goodman v. Ward, the Illinois Supreme Court today ruled that a candidate for a subcircuit judicial vacancy must be a resident of the subcircuit at the time he or she files for office.

Chris Ward wanted to run for judge in the 4th Subcircuit of the 12th Judicial Circuit (Will County) in last year's primary. Ward was not a resident of that subcircuit when he filed his nomination papers and he did not misrepresent his address. He did, however, execute a Statement of Candidacy, required by law, in which he swore, "I am legally qualified to hold the office of Circuit Court Judge, 12th District [sic], 4th Judicial Subcircuit."

But was he legally qualified? Ward's petitions were challenged by Daniel Goodman (whose wife, Carmen, was the only other aspirant for the Democratic nomination in that subcircuit) on the grounds that Ward was not eligible for office because he was not a resident of the subcircuit. Two members of the Will County electoral board, "mindful of the precept that ballot access should be favored," concluded that "that the governing provisions of the Illinois Constitution were 'arguably ambiguous and uncertain'" and that Ward should therefore be permitted to run (slip op. at 2).

Goodman appealed. The Circuit Court agreed with Goodman, knocking Ward off the ballot. The Appellate Court also agreed with Goodman, though there was a dissent.

The Illinois Supreme Court agreed to hear Ward's appeal, but not to expedite it. In the meantime, Carmen Goodman remained unopposed for the Democratic nomination. She defeated the Republican nominee in November of last year and took office in December. The Supreme Court stated, however, that it would decide Ward's appeal under the public interest exception to the mootness doctrine (slip op. at 4-5).

In ruling against Ward's candidacy today, the Court stated that a candidate for judicial office must be a resident of the unit from which he or she seeks election at the time he or she files to run. Section 7-10 of the Election Code (10 ILCS 5/7–10) prescribes the form that a candidate must file (slip op. at 8):

The form’s language calls for a candidate to swear or affirm that, among other things, “I am legally qualified (including being the holder of any license that may be an eligibility requirement for the office I seek the nomination for) to hold such office ***.” (Emphasis added.) 10 ILCS 5/7–10 (West 2008). Because “am” indicates present tense and because the signed statement must accompany the nominating petition when it is filed, the statute can only be understood to mean that a candidate must meet the qualifications of office at the time he or she files a nomination petition with electoral authorities. No principle of English grammar or statutory construction permits an interpretation of the law which would allow candidates to defer meeting the qualifications of office until some later time.

The Supreme Court noted, too, that the Will County electoral board did not misinterpret §7-10; instead, the board "looked directly to provisions of the Illinois Constitution governing eligibility for judicial office (Ill. Const. 1970, art. VI, §11) and the election of judges (Ill. Const. 1970, art. VI, §12(a)). It interpreted those provisions as requiring only that a person be a resident of the subcircuit at or after the time he or she is actually elected. * * * Implicit in the electoral board majority’s approach was that the Constitution’s eligibility requirements differed from those contained in the Election Code and that to the extent of the difference, the provisions of the Election Code were unconstitutional and could be
disregarded. This was a determination the electoral board had no authority to make." (Slip op. at 9-10).

Some in the news media may be surprised by today's decision in Goodman v. Ward. After Maksym v. Board of Election Commissioners of City of Chicago, --- Ill.2d ---, --- N.E.2d --- (2011) (2011 WL 242421) -- the Rahm Emanuel case -- some may have imagined that a new age of relaxed ballot access had dawned. They may have actually believed that candidates will no longer have to worry about slick political operatives poring over stacks of petitions, looking for picayune or technical defects with which to knock good candidates off the ballot.

But there should be no surprise. Barring major legislative reform of the State's election laws, prospective candidates remain well advised to seek competent counsel familiar with every twist and turn of ballot requirements. And keep in mind, too, that different ballot access rules apply to candidates for different offices. As the Supreme Court pointed out today (slip op. at 13), "No rule of law forbids states from imposing different eligibility requirements for membership in the different branches of its government, and no principle of legal reasoning permits an inference that the framers did not intend to do precisely that here."

Northwest Side Irish Parade draws aldermanic runoff competitors

The increasingly popular Northwest Side Irish Parade today drew spirited demonstrations of support for each of the candidates in the upcoming 41st and 45th Ward Runoff Elections.


41st Ward Candidate Maurita E. Gavin's large group marched first along Northwest Highway.





Not all of the candidates' supporters are of legal voting age -- or even human. That's an underage Gavin supporter above. At right is a picture of a little dog marching with the group supporting Gavin's opponent, 41st Ward Democratic Committeeman Mary E. O'Connor.

Do not adjust the color on your monitor: Yes, that dog does indeed have a greenish tint. Presumably, this color scheme was adopted for the occasion.


Both aldermanic candidates in the 45th Ward made a showing as well. Candidate John Garrido was at the head of this group:


Garrido's opponent, John Arena, followed soon after. Here a couple of photos of his group:


Thirty-eighth Ward Ald. Timothy Cullerton was not represented in today's Northwest Side Irish Parade, but challenger Tom Caravette was represented:


The runoff election is Tuesday, April 5. Early voting, however, starts Monday.

For more pictures from today's parade, turn to page two.

Associate Judge applicants: Have you heard from the Alliance yet?

Per email received from the ISBA's Joyce Williams, who (among other things) coordinates the sending and receiving of judicial candidate questionnaires for the Alliance of Bar Associations for Judicial Screening: The Alliance has focused on reaching out to first-time applicants for Associate Judge in the current cycle. Some persons who've applied before might not yet have been contacted (full disclosure: I recently reached out to Ms. Williams for this very reason).

Ms. Williams advises that, if an applicant has not yet heard from the Alliance, please send her an email at jwilliams@isba.org. She will provide you with the appropriate questionnaire.

Six Chicago wards have better than 50% turnout in Tuesday's primary

Voter turnout in Tuesday's primary was just under 42%.

Yesterday, Progress Illinois published this chart of voter turnout by ward:

Note that the 19th Ward led all Chicago wards with a 74.25% voter turnout. Speaker Madigan's 13th Ward came in next, with a 58.35% turnout, followed by Ald. Michael Zalewski's 23rd Ward at 58.07%.

There were only three other Chicago wards that had a better than 50% turnout -- 41, 45 and 47 -- wards in which there were spirited contests for open City Council seats. In the 41st and 45th Wards, those contests are continuing.

Runoffs in 41 and 45

41st Ward Democratic Committeeman Mary O'Connor will face off against Maurita Gavin, an Administrative Aide to outgoing Alderman Brian Doherty.

Lawyer and Chicago Police Lt. John Garrido will meet John Arena (who received the endorsements of the Tribune and the Sun-Times) in a runoff in the 45th Ward.

Something tells me that the Northwest Side Irish Parade will be particularly well-attended this March 13th.

Getting a clearer picture of speed cameras and other surveillance devices

In yesterday's post, we saw that, in Illinois, neither red light cameras nor Chicago Police surveillance cameras, like this one, can be used to nab speeders -- not without new legislation.

But speed cameras are in use in other American jurisdictions and are quite controversial. See, for example, this page on the National Motorists Association website, from which one may navigate to a number of articles about the perceived evils of speed cameras. (The biggest objection, if I can presume to summarize, is the disconnect between speed cameras and safety. Speed cameras are all about revenue, the objectors claim, and there is mounting evidence that, not only do such cameras not enhance driver safety, they may actually cause an increase in traffic accidents.)

But speed cameras, if I understand the technology, are activated only when a vehicle passes by at a pre-set velocity. That is merely the tip of the surveillance camera iceberg. Here, you're looking a pavement camera. From the Highway Safety Group website:

Astucia's hugely imaginative patented Camera Stud may sound like the stuff of science fiction but is an extremely effective tool of traffic management. Housed within a strong metal casing that protrudes a mere 4 mm from the road surface, the camera is a full–function digital video device producing pin–sharp images of approaching or passing vehicles and their registration plates.

The unit is suitable for use on and off the public highway and is capable of operating in practically all environments. The camera also comes with a computer controlled self cleaning unit so that road dirt and grime are removed regularly to maintain the quality of the image captured.

When I found this site, researching this post, the page linked to a video of cars driving over the camera -- and the license plates were clearly visible. And this was from the obsolete model -- the site was reluctant to show the really "pin sharp" videos for "security reasons." And -- when I went back to check the links before publishing this post -- they were gone.

Yikes.

The Highway Safety Group website touts using this pavement camera with an Astucia speed detection stud, "the newest member of its Intelligent Road Stud family." Data from the stud "can be linked with the Astucia camera stud providing an opportunity to also send Automatic Number Plate Registration (ANPR) data of the vehicle captured simultaneously by the camera stud."

Astucia, despite the Spanish name, is an English company. It seems that Mr. Orwell may have been right, just premature.

It may not be true that the average Briton is caught on surveillance video 300 times a day, but there are apparently a lot of cameras pointed at the streets of England.

There are quite a few in Chicago, too. According to a couple of articles earlier this month in the Chicago Sun-Times, there are more than 10,000 public and private surveillance cameras in the city, "the most extensive and integrated in the nation," according to a February 8 article by Fran Spielman and Frank Main. Their article noted a request by the American Civil Liberties Union for a "moratorium on expanding" Chicago's video-surveillance system until "new rules" are enacted "to safeguard citizens’ privacy."

Spielman and Main reported that Chicago aldermen like the surveillance system "because of the sense of security that cameras can bring to residents of high-crime neighborhoods." But the ACLU questions "the effectiveness of the cameras. The city says they accounted for 4,500 arrests from 2006 through May 2010, which the ACLU pointed out is less than 1 percent of the total number of arrests over that period."

The ACLU did not "identify any misconduct involving Chicago’s camera system," according to the Sun-Times article but instead "highlighted problems in England and other cities." The Sun-Times article didn't specify the problems highlighted in the report, but the executive summary of the ACLU report claims:

Male camera operators have ogled women. Sensitive images have been improperly disclosed – like the image of a person committing suicide, which was later posted to a violent pornography website. A study from England found that camera operators targeted black civilians, substantially out of proportion to both their suspicious conduct and their presence in the population being monitored.

You can read the entire ACLU report here.

Fran Spielman's follow-up article for the February 9 Sun-Times noted Mayor Daley's prompt rejection of the ACLU report. Spielman quotes Daley:

“What cameras are is to prevent crime — to tell criminals, ‘Yes, you are gonna be focused [on].’ There’s nothing wrong with that. And to have the good citizens use our sidewalk and our parks, have our children go to and from school. Have our families go to and from church and feel comfortable. We’re not spying on anybody. This is the public way. We’re not spying or identifying or racial profiling anyone.”

But the unblinking eye of the surveillance camera sees, and perhaps records, everything in its view, both the comings and goings of the innocent as well as the actions of criminals.

The outgoing Daley administration touts surveillance cameras as a useful crime-fighting tool. But the cop on the street may not agree, at least if the popular Second City Cop blog is any indication. Commenting on the ACLU report, SCC stated, "cameras don't prevent anything. That armored car robbery in 011 last week? Directly under a POD camera. It didn't deter anything and didn't even provide decent footage of the event."

Not that SCC welcomed the ACLU report, mind you:

What worries us is the ACLU taking a very close interest in anything to do with the Pods. We figure it's only a matter of time before they file some sort of lawsuit against the Department over camera usage and some copper who was only trying to generate activity for some mission is dragged into Federal court and finds his house is on the line for civil rights violations.

But Chicago is about to elect a new mayor. There will be significant turnover in the Chicago City Council as well. Perhaps these new elected officials will want to take a new look at the cameras around our city and the ways in which they should be used. Certainly the cameras are looking at us.

Chicago makes Top 10 List of cites with most speed traps, but not all of the charges in the indictment are true

Our fair city has made yet another unhappy Top 10 List, this one a list of the country's worst speed traps. According to the linked article by Cindy Perman, posted yesterday on Yahoo! Autos and provided by cnbc.com, Chicago has the dubious distinction of being the ninth worst city in the country for speed traps. According to Perman's article, we have 153 (and, no, I don't know who counted). However, as will be seen, at least some of Perman's information is inaccurate.

Of Chicago, Perman writes:

Chicago now uses red-light cameras to nab motorists for running lights and speeding, which increases the city's ticketing power. And, while, speed limits are supposed to be determined by engineering studies, [Chad Dornsife, director of the Highway Safety Group,] notes that the last study on one red light speed trap here was done in 1994 and the Department of Transportation deemed the safest speed was 43 miles per hour. The posted limit? 30.

Dorsnife notes two problems here: First, some of the traffic-control devices are 20 and 30 years old. And second, on the interstates, local politicians control the speed limits — and the enforcement in the courts. So, good luck fighting a ticket.

Barnet Fagel, aka "The Ticket Doctor," noted one particularly tricky speed trap: Motorists have to drive at a snail's pace leading up to the entrance to Lake Shore Drive, which then opens up into a six-lane highway. A half-mile in is the speed trap, where the speed limit is 40 and police nab drivers just as they're starting to pick up speed. "Comparable divided highways carry higher speed limits by as much as 10 to 20 mph more," he said.

While I'm certain that Chicago has its share of speed traps, I'm pretty sure that not only are red-light cameras not being used as speed traps, they can't be used for this purpose.

And I refer to not to technological limitations, but legal ones.

There was legislation pending in Illinois to permit the use of cameras to nab speeders; I wrote about it on this blog in March 2009. That speed camera bill failed. Currently, as far as I know, with the exception of the Automated Traffic Control Systems in Highway Construction or Maintenance Zones Act, 625 ILCS 7/1, et seq., "no photographic, video, or other imaging system may be used in this State to record vehicle speeds for the purpose of enforcing any law or ordinance regarding a maximum or minimum speed limit unless a law enforcement officer is present at the scene and witnesses the event." See, 625 ILCS 5/11-612.

The Automated Traffic Control Systems in Highway Construction or Maintenance Zones Act gives the State Police the authority to set up a candid camera in construction zones on expressways or on Illinois Tollways, but, since section 5 of the Act expressly provides that its purpose is safety in construction zones, section 10 imposes a burden on the State to prove, in any prosecution brought under the Act, "that one or more workers were present in the construction or maintenance zone when the violation occurred."

So maybe there are 153 speed traps in Chicago, but "red light cameras" are not victimizing hasty Chicago drivers. At least, not yet.

Gosh -- does this mean that you can't believe everything you read on the Internet after all?

Real-world evidence supporting non-partisan judicial primaries in Illinois

Albert J. Klumpp, PhD, a Research Analyst with the Chicago firm of McDermott Will & Emery LLP, read my post last month endorsing the concept of non-partisan judicial primaries and left this comment:

Any sort of significant change to our selection system needs to be based on real-world evidence that a different system would be an improvement. (Such as by comparison across systems in different jurisdictions.) Unfortunately that evidence hasn’t been produced—not yet. And the legal community has always been too content to simply offer theoretical arguments without supporting evidence. The electorate that needs to approve a change isn’t likely to be convinced by theory.

These are valid points. People are unlikely to support constitutional change unless they are convinced a proposal is valuable and useful. I can't provide comparisons to different states.

But I can provide some real-world evidence to show why a change to a non-partisan judicial primary is warranted.

According to the Illinois State Board of Elections, a total of 761,626 Cook County voters took ballots in the 2010 primary election.

But nearly 22% of these (21.72706814% if we're being fussy) were denied the opportunity to vote in ten of the 11 countywide judicial primary elections (eight Circuit Court races and three for the Appellate Court). And of these 165,479 voters, only the 161,878 Republican primary voters had the opportunity to choose between two candidates for the countywide McCarthy vacancy.

None of these 165,479 voters had the opportunity to vote for subcircuit judicial candidates, no matter what subcircuit they lived in. There no candidates except Democrats in any subcircuit primary this year.

In 2010 there were, according to the ISBE, 1,424,959 total Cook County voters in the November general election. Why one of every two general election voters is willing to let others narrow the field for them is a question best left to the academics. But primary voters are not content to let others limit their choices; by definition, they show up to make their own choices. But when it comes to judicial candidates, 165,479 voters were essentially shut out of the process, even though they were at the polls.

One may say that this is the fault of the Republican Party. The Republicans could, in theory, furnish their own slate of candidates in every judicial race, thereby insuring that every voter in the fall would have choices. But, in recent years, successful Republican candidates in Cook County are about as common as unicorns. It is understandable, then, that persons seriously aspiring to judicial service in Cook County do not seek office as Republicans.

This, of course, will change. Change is the one constant of the universe. (At one time, the peaks of the Himalayas were a primeval ocean floor.) Frankly, a Republican revival could happen as soon as the next election cycle. But I won't take bets on it.

The Democratic judicial primary functions as a de facto non-partisan primary anyway: For example, in 2008 and 2010, Thomas "TJ" Somer, who was once elected Bloom Township Supervisor as a Republican, filed for 15th Subcircuit vacancies. Other examples could probably be found. But if the Democratic primary attracts all candidates, why shouldn't that primary also be open to all voters?

Where judges are elected, denying one in five voters the chance to choose their judges is a scandal. But it's easily remedied and won't cost voters a dime.

Is there any interest in Springfield?

Judge Marcus R. Salone appointed to Appellate Court

Cook County Associate Judge Marcus R. Salone has been appointed by the Illinois Supreme Court to fill a vacancy on the First District of the Appellate Court. The vacancy was created by the retirement of Justice Sheila M. O'Brien.

Judge Salone is a one-time Chicago Police officer and assistant State's Attorney. He's been an associate judge since 1992.

Judge Salone's appointment is effective March 8 and will terminate December 3, 2012.

Lionel Jean-Baptiste appointed to 9th Subcircuit vacancy

The Illinois Supreme Court has appointed Evanston attorney Lionel Jean-Baptiste to the 9th Subcircuit vacancy created by the recent death of Judge Gerald C. Bender.

Jean-Baptiste is currently alderman of Evanston's 2nd Ward. Jean-Baptiste was born in Haiti, arriving in Evanston with his family in 1964. Jean-Baptiste graduated from Evanston Township High School in 1970. A 1974 graduate of Princeton, Jean-Baptiste later graduated from Chicago-Kent Law School and was admitted to the Illinois Bar in 1991.

Jean-Baptiste's appointment is effective March 4 and terminates December 3, 2012.

---------------------------------------------------------------
Updated 2/14/11 to link to Chicago Tribune coverage.

Peter J. Vilkelis appointed to Cook County bench

The Illinois Supreme Court has appointed criminal defense attorney Peter J. Vilkelis to the countywide vacancy created by the recent retirement of Judge Donald J. O'Brien, Jr.

Vilkelis is a 1980 graduate of John Marshall Law School. He was an Assistant States Attorney for nine years before setting up his own defense practice.

Vilkelis's appointment is effective February 7, 2011 and expires December 3, 2012.

Judicial election reform in the wake of the Emanuel case

Rahm Emanuel said, "You never let a serious crisis go to waste," and, whether one calls it irony or karma, the now-resolved crisis over Mr. Emanuel's ballot status has provided an opportunity for critics of the way we choose judges in Illinois to once again pitch merit selection as an alternative.

While waiting for Thursday's Supreme Court decision, the Tribune announced that it was shocked, shocked to find out that politics was involved in the selection of judges.


From David Kidwell's article, posted on the evening of January 24:

Longtime Appellate Court Judges Thomas E. Hoffman and Shelvin Louise Marie Hall — who on Monday ruled that Emanuel's stay in Washington precludes him from running for mayor this year — were both judicial candidates slated for election by the Cook County Democratic Party judicial slating committee chaired by Ald. Edward Burke, 14th.

Burke, one of Chicago's most powerful politicians, holds huge sway in the election of judges at every level, including the Illinois Supreme Court, where his wife, Anne, sits as a justice and where the Emanuel ballot question is now headed for a final decision.

An article by Kidwell and Rick Pearson, posted on the evening of January 26, was headlined "Will Emanuel ruling rise above politics?" The article carried the breathless subhead, "The 4 Democrats, 3 Republicans on state Supreme Court all have political ties." (Who knew?) And from the article:

"This is not something that is unique to these judges," said Malcolm Rich, executive director of the Chicago Council of Lawyers, a group that pushes for merit selection. "For all judges, there is a strong likelihood that once you are slated by the political organization, you will become a judge."

"Does that political influence find its way into decisions? I don't know. We may never know," Rich said. "But as long as we live in the political reality under which the election of judges operates, we will never be able to escape these kinds of inherent conflicts."

In his blog for Crain's Chicago Business, Greg Hinz wrote:

[T]he amount of chatter surrounding this case ought to make reasonable folks wonder whether electing judges in highly partisan, extremely expensive races truly serves the interest of justice.

Put a different way, our justice system will work only if people are convinced it's not gamed.

I don't know if appointment of judges — a.k.a. "merit selection" — is the way out. It, too, has its own flaws.

But it really is time to take a look to see if we can devise a better means to select at least the high court. Illinois' justice system ducked a bullet this time. But surely others will be fired in years to come.

If there's really a serious groundswell for reform of Illinois judicial election system, retired Illinois Appellate Court Justice Gino DiVito has suggested a practical, achievable reform: In December's Illinois Bar Journal, Justice DiVito suggested (ISBA membership required) that Illinois make judicial elections non-partisan.

Justice DiVito isn't as enthusiastic about his idea as I am (he's a dedicated proponent of merit selection) but I think this proposal has (*ahem*) merit:

Every registered voter, regardless of party affiliation or lack of it, would have access to a judicial ballot and would be eligible to vote in the judicial election. Thus, Democrats, Republicans, and members of any other political party could cast votes in the separate judicial election held concurrently with the primary election.

Those who choose not to declare political party affiliation - independent voters - also could vote in such elections. Because any registered voter could vote, election by a fraction of one party's voters would end.

As Justice DiVito notes, such a reform would require a constitutional amendment (he suggests language for such an amendment in the Bar Journal article).

Amending the constitution is a difficult process. But it's a struggle worth undertaking. Why should Republican voters in Cook County be almost entirely disenfranchised when it comes to selecting judges? Why should Democratic voters in DuPage or most other Illinois counties be similarly disenfranchised?

And, truth to tell, a lot of voters skip the primaries. But most of the judicial races are decided in the primaries -- and voters who turn out only for general elections are also shut out of the process of judicial selection. Under Justice DiVito's proposal, general elections could again become relevant:

Only a candidate receiving more than 50 percent of the vote [in the non-partisan primary] would be elected to judicial office. This would eliminate the current phenomenon of electing candidates with a small percentage of the votes from a single dominant political party, a frequent occurrence in current primary elections with numerous candidates.

Under the proposal, if no candidate reaches the required percentage, a run-off election between the two top vote-getters would be held in the November general election - without party designation. This should focus attention on the relative merits of the two candidates rather than their party affiliation.

Neither Justice DiVito's proposal nor any merit selection scheme (nor any scheme involving human beings) will entirely remove political considerations from judicial selection. Party endorsements would still be very important, but at least more voters would have a say concerning the worthiness of the dominant party's choice. That alone might be an important reform.

Perhaps a crisis involving Rahm Emanuel's hopes to run in a non-partisan mayoral primary create an opportunity for non-partisan judicial primaries in the future.

45th Ward Aldermanic debate to be rebroadcast on Internet radio next week

Per Facebook message received from Merril Miller, this week's 45th Ward Aldermanic Debate will be rebroadcast Monday, January 31 from 7:00 to 9:00pm and again on Wednesday night from 10:00pm to midnight on Slam Internet Radio. (There's a "listen live" button if you follow that link.) Miller also advises that Slam Internet Radio President Joshua Modaressi is offering edited copies of the debate "archived on ustream" for sale. As a card-carrying Luddite I do not know what that really means, but additional information is available by contacting Mr. Modaressi through the Slam Internet Radio website.