Law should seek personal liberty. ABA asked: How would you #ChangeTheLawIn5Words?
Here is a letter to the editor I submitted to Illinois State Bar Journal with my observations about an article in the April 2011 edition that disapproves of the declining number of appellate oral arguments.
To the Editor:
“Surviving the Death of Oral Argument” (sorry, subscription required) is misnamed. The article doesn’t contain ideas for how lawyers should proceed in their appellate practice in view of an established trend by courts to dispense with oral argument. Instead, the article bemoans the reality of fewer oral arguments, and criticizes the trend because, the author states, without a public oral argument judges may not be fully engaged.
We like to and should hold our judges to high standards. But at bottom, judges are paid public servants, elected to office by the same system we use to elect all politicians to other public offices. Taxpayers compensate judges to decide cases, conduct trials, and settle disputes. An unengaged appellate judge, irrespective of whether there is oral argument, shortchanges the public, especially the parties to a given dispute.
The appellate process should include oral argument when a judge wants the insights of counsel beyond what is contained in the briefs. But we shouldn’t have to entice judges to prepare for the decision-making process by conducting expensive proceedings that do not affect the outcome of the case.
Someone has to pay for “the public nature” of oral argument. When the government argues, taxpayers foot the bill. When a privately engaged lawyer argues, a client pays. Even in an uncomplicated case, those costs easily are thousands of dollars. Taxpayers and clients legitimately should question those expenses, especially when judges tell you that 85 to 95 percent of appeals are decided before a lawyer ever steps into the courtroom for oral argument, and irrespective of what the lawyer says. Tempting judges to become engaged — i.e., to do their jobs — does not justify the added costs to taxpayers and litigants to use our dispute resolution system.
So how does the appellate practitioner survive the death or oral argument? Write more readable and persuasive briefs. (Full disclosure here: My firm runs a service called AppellatologySM, an internet-based appellate brief conferencing service designed to help appellate lawyers write better briefs.) How you do that is a lengthy subject for another day. But goal number one has to be: Make sure your brief addresses all of the factual and legal questions a judge wants to know in order to rule in your favor. With fewer oral arguments, your brief may be your last and best hope.
A couple of hundred years ago when I was a Big Law associate, a Big Law managing partner told me to “Toot your own horn, because nobody else will.” I thought of that the other day when I got a memo from the grand poobah of the Steven R Merican PC Unashamed-Toot-Your-Horn-Marketing Department. Although I’ve never seen him, so I can’t absolutely confirm this, I’ve been told the memo-writer over there wears particularly green eyeshades and is a resident of Chicago, although he lives elsewhere.
The memo directed all employees to toot whenever possible. “But,” I told Green Eyeshade, “tooting is not in my bones. I would rather talk about the law.” No matter, Green Eyeshade memo’d me. In a law firm the size of SRMPC, you must do your own tootin’. “So go toot.”
Well I’m a company guy, so here goes. ♪♪♪ The other day when the Chicago Tribune needed to understand the appellate process surrounding the Rahm Emanuel mayoral-candidacy lawsuit, the paper turned to the author of this fine appellate law blog for answers. You can read his nearly prescient observations here. And when KWQC HD television in Davenport, Iowa wanted to explain to its viewers what was going on in the appellate courts on the other side of the Mississippi, the station interviewed that same fellow. Demand for the interview is exceeding all expectations, and a digital version has unexpectedly become temporarily, Green Eyeshade hopes, unavailable. The station is searching the bowels of its archives for the interview. Illinois Appellate Lawyer Blog will post it upon receipt. (YouTube? YouTube? We don’t need no stinkin …)
Yesterday’s New York Times ran an article questioning the enormous loans many students need to get through law school, and how law schools game the school ratings. That’s news? Here is a letter to the editor I wrote today, suggesting a radical fix:
To the Editor:
“Is Law School a Losing Game?” begs the question: what do we do about the foolish amount of debt students must absorb to get through law school? The answer is: change the structure of law school and the requirements one must meet to practice law.
Law schools are ignoring the demands of lawyers’ clients ― lower the cost of your service. Most law firms have been busy trying to do that. Lawyers are struggling to deal with their labor costs, mostly because lawyers who just got their licenses have to figure out how to pay off student loans and law firms have to pay the new lawyers a sufficient amount to do so.
A dean of a Chicago law school recently told an alumni group that graduating students at that law school have an average $100,000 in school loans. That’s a lot less than the students you featured in your article, but still way too much for a novice who doesn’t add much value to the service lawyers give their clients. And clients have the final say.
Right now law firms are squeezed on both ends of the financial equation. Clients are unwilling to pay for new lawyers to learn how to practice law, and new lawyers require and demand more than law firms are willing to pay. The result is lots of new lawyers unable to meet the obligations of their school loans. Many are unemployable at the salaries they need to service student debt.
There is a way to fix the problem, but it will take courageous action by law schools, accrediting organizations, bar associations, law firms, and new lawyers. First we admit that for most lawyers grinding out three years of law school, supposedly to learn how to think like a lawyer (read: indoctrination), does no one any good. Students graduate still not knowing how to practice law; law firm-employers are frustrated by having to absorb more and more of new lawyers’ salaries; and clients are angry about paying what amounts to training costs and student debt for new lawyers.
Law school for students who want to practice law should be one calendar year. During that year, curriculum should focus on legal research and communication, and a fundamental core of study ― contract law, torts, property law, criminal law, procedure. Students can be given an option for an elective or two.
A mandatory apprenticeship at a law firm should follow graduation. That’s where new lawyers will learn how to practice anyway, not sitting in a classroom discussing cases that were decided decades ago in an obscure jurisdiction. Law firms should be allowed to pay their apprentices as much or as little as they want ― whatever the market will bear.
That approach will take the pressure off of students who have no way to get through three years of law school without mortgage-sized student loans, and they’ll get a more useful education. It will take a lot of pressure off of law firms that are absorbing a big chunk of new lawyer salaries into overhead. And it will go a long way toward relieving law firm clients of the financial burden of carrying new law firm lawyers.
Law schools especially won’t like this idea. They have institutionalized the three-year curriculum. Their income now depends on keeping students in classroom seats for three years. But law firm clients are changing their counsel-hiring models, and law firms are changing their business models to accommodate clients. It’s time for law schools to get the message, and share some of the financial pain the rest of the market has endured, and make some difficult changes, too.
Illinois Supreme Court Justice Thomas Kilbride won his retention election last week. About 65 percent of voters in his district voted to retain him. Now he has the option of serving another 10-year term. The lesson of this retention campaign is: The office of judge should have a term limit so judges can to use their powers to support individuals’ and minorities’ liberty.
The Kilbride retention vote caused a lot of hand wringing. Kilbride’s opponents were bashed for politicizing a process the pro-Kilbriders felt should be free from substantive criticism. Kilbride’s supporters said they didn’t like the way Kilbride was criticized for some of his judicial decisions. They shouted that Kilbride’s critics were besmirching “judicial independence” and “rule of law.”
But Illinois judges are political animals. The Illinois Constitution makes sure of that. Judges in Illinois are elected to the bench in competitive contests. And judges are required to stand before the people, who get to decide whether the judge should be retained. If a judge is not deciding cases the way the people want him to, the people can fire him. All it takes is a vote of 40-percent-plus-one to deny retention in Illinois.
The Kilbride retention campaign was remarkable. Illinois judges, and even less so supreme court judges, rarely are challenged in retention votes. But this time, Kilbride’s retention campaign brought an angry challenge led by the Illinois Civil Justice League, which advertised heavily against retaining Kildbride.
Many of the League’s advertisements criticized Kilbride for favoring criminals over law enforcement. But everyone knew the real reason the League wanted to deep-six Kilbride’s retention – he voted with the supreme court majority that ruled caps on jury awards in personal injury cases were unconstitutional.
A good deal of the media in Illinois did not like the League’s campaign. The League was scorned for making the vote a referendum on Kilbride’s substantive decision-making. But demanding special interests to stay out of the campaigns of judicial selection and retention is like asking a dog not to bark. The process of elections is political, and an organization that speaks for a group of citizens is well within its rights to participate in that process.
The League was criticized for smearing Kilbride with false advertising about his judicial record. No one likes to see deliberate lies during a campaign, and the point here is not to say whether the League’s ads were factually justifiable. But election campaigns get rough, and judges as politicians have to do more than claim judicial independence exempts their decisions from the rough-and-tumble of campaigns. If that were so, a judge’s decision-making, if anything short of felonious, couldn’t ever be questioned. And after all, the political process got them their robes in the first place. It’s less than earnest to say a judge’s job performance should not be subjected to the same process.
Citizens vote for judges for many of the same reasons they vote for executive and legislative candidates – a belief that the judge-candidate reflects our values. We hope judges will decide cases fairly given those values.
Judges do have an extra role that doesn’t encumber most other elected officials. If our three-branch system of government is to work, judges must assure that individuals’ rights are respected and they must protect against tyranny of the majority.
But even those additional burdens don’t give judges a pass on the politics of a campaign. Just ask the three supreme court judges in Iowa who lost their retention elections last week. The New York Times reported the three judges were targeted for their votes that overturned a law that defined “marriage” as being only between a man and a woman.
The Iowa Supreme Court voted unanimously against the anti-homosexual marriage law. So there was no strength in numbers in this Iowa retention vote. That makes one wonder about one of Kilbride’s arguments against the Illinois Civil Justice League. The pro-Kildbride campaign argued Kilbride should be retained because he voted with the majority of the Illinois court’s judges nearly 90 percent of the time. Somehow that was supposed to convince voters that Kilbride was a mainstream guy. Maybe he is, but it’s hard to see how mainstream thinking champions individual and minority rights.
Certainly judges can be stampeded out of office for making decisions that are unpopular with the will of the majority. Judges should have some protection against voter backlash for protecting individuals and minorities. That’s where the rubber meets the road when judicial independence is at issue. That protection should acknowledge that a judgeship is a political position. It doesn’t matter whether the judge is chosen by voters in a competitive election (Illinois, for example) or selected in a so-called merit selection system (Iowa, for example). Each requires judge-candidates to participate in political machinations.
There are two ways to lessen the political consequences to judges of acting as champions of individual rights. One is the way it is done in the federal court system – give judges lifetime tenure. The advisability of lifetime tenure aside, asking citizens to give up their ability to choose or at least retain judges is unlikely to happen.
The second method is at the other end of the spectrum. Term limits. If they were limited to one 10-year term, it would be a lot easier for judges to make pro-individual or pro-minority decisions. Judges wouldn’t have to worry about how they would retain their robes in the light of a decision that may be unpopular with the majority of voters. The question would be moot because they couldn’t stand for retention.
The office of judge carries enormous power. In our society, in which individual liberty is at the top of the value scale, the highest use of that power is to vindicate those liberty interests. Term limits will free judges to use the power of their offices to insulate themselves from electoral punishment by a majority that might want to stomp on individual rights. That would make for real judicial independence.
Mary Ann Aiello passed away with more than 29 months left in her term on the Winnebago, Illinois County Board. Theodore Biondo was appointed to fill the vacancy. By the time Biondo’s appointment went through there was less than 28 months left in Aiello’s term.
Under the Illinois Election Code, a person appointed to fill a vacancy completes the term if less than 28 months remain. If more than 28 months remain in the term, then the person appointed stays in office only until the next election. The next election was in 2008, but the Aiello term did not expire until late 2010. The question was when the clock started ticking – when Aiello passed away or when Biondo was appointed.
The Democratic Party submitted Carolyn Gardner as a candidate to run for the Aiello vacancy in the November 2008 election. Believing Biondo could complete Aiello’s term, and that there should not be an election for the seat until 2010, the Republican Party did not submit a candidate for the office. Nor did Biondo apply to run.
Margie Mullins, the County Clerk, sided with Biondo and refused to place Gardner on the ballot. So Gardner sued for a writ of mandamus to direct Mullins to do so.
The trial court agreed with Gardner and directed Mullins to put Gardner on the ballot. Biondi then entered the lawsuit and asked the trial court to direct that his name be placed on the ballot. But the trial court disagreed with Biondo, who then asked the court to reconsider and for a temporary restraining order to prevent the election for Aiello’s seat. The trial court denied both of Biondo’s requests.
Biondo appealed under Illinois Supreme Court Rule 307 [allowing interlocutory appeals of orders refusing restraining orders as of right]. Gardner asked the appellate court to dismiss the appeal for lack of jurisdiction. One day before the election, the appellate court ruled in favor of Biondo, and stated his name should be on the election ballot. But by then it was too late to change the ballot. The election proceeded with Gardner as the only name of the ballot for the Aiello seat.
Gardner then appealed to the Illinois Supreme Court. Her first argument was that Biondo’s appeal should have been thrown out for lack of jurisdiction. The supreme court agreed that Rule 307 was not the correct rule for Biondo to appeal under. Rule 307 applies only to interlocutory orders. But “Biondo filed a motion for a temporary restraining order after final judgment on the case had been entered [i.e., the order that was entered before Biondo intervened in the case]. Contrary to Biondo’s argument, the filing of a motion to reconsider has no effect on the finality of an otherwise final judgment … Because final judgment had been entered, Biondo’s appeal under Rule 307 was inappropriate as it was not interlocutory in nature.”
But Biondo’s error was not fatal to the appeal. The judgment Biondo contested, the supreme court stated, was final and appealable, so even though he used the wrong rule, there was appellate jurisdiction. Here’s how the Illinois Supreme Court explained it.
The appellate court has jurisdiction to hear appeals of final judgments … Because this appeal is from a final judgment, Biondo’s appeal would have been proper if brought pursuant to Rule 301, as an appeal as of right … Further, instead of filing for a temporary restraining order, Biondo could have properly moved to stay the circuit court’s judgment pending appeal pursuant to Rule 305 … Though the appellate court would have been well within its authority to dismiss Biondo’s appeal for failing to cite the appropriate rule, his error was not sufficient to divest the appellate court of jurisdiction where the court otherwise had jurisdiction.
So Biondo got his day in court. But to no avail, because the Illinois Supreme Court ruled that the time begins to run when the vacancy occurs, not when it is filled. Read the whole opinion, Gardner v. Mullins, No. 107707 (9/24/09), by clicking here.
The New York Times posted an editorial today agreeing with Massachusetts Supreme Judicial Court Chief Justice Margaret Marshall that “because of budget cuts in tough economic times, state courts across the country stand at “‘the tipping point of dysfunction.’” The piece explains the results of budget cuts in different state courts, and concludes: “[A]t some point, slashing state court financing jeopardizes something beyond basic fairness, public safety and even the rule of law. It weakens democracy itself.”
The Cook County (Illinois) Republican Party filed eight complaints against various Democratic Party organizations and individuals asserting violations of the Illinois Election Code. The complaints were filed with the Illinois Board of Elections, which has eight members. The Board tied on each of the complaints, four to four, meaning there was not a majority vote on the question of whether the complaints were filed on justifiable grounds. Each complaint therefore was dismissed.
The Republicans filed a direct appeal to the Illinois Appellate Court, which is allowed by the Illinois Election Code. Because the Board did not state factual findings, the appellate court ruled that it did not have authority to review the question of whether the Republicans’ complaints had justifiable grounds to proceed.
Instead, the appellate court stated that its jurisdiction was limited to the question of whether the Board acted “contrary to law.” In this case, that meant assuring the actual vote count was accurate. The appellate court thus affirmed the Board’s dismissals.
The Republicans appealed to the Illinois Supreme Court. The Democrats asked the court to dismiss the appeal because: (1) it was premised upon reviewing tie votes by the Board; but (2) the Board’s orders did not state they were tie votes, so the supreme court “must presume that the complaints were dismissed based on majority votes.”
The Illinois Supreme Court denied the request to dismiss the appeal. The court acknowledged the Board’s orders did not state whether they were based on tie votes, but:
Despite any shortcomings in the Board’s final orders, we are not required to ignore the clear evidence of the tie votes in the hearing transcript … A review of the transcript of the closed preliminary hearing clearly indicates the Board voted four-to-four on each of the complaints. We will not disregard the clear vote shown in the transcript of the hearing absent plain evidence that it did not reflect the Board’s true vote. While the final orders should have stated the complaints were dismissed for “failure to determine” that they were filed on justifiable grounds, that error does not conclusively show the complaints were dismissed by majority vote of the Board. Thus, we find the record establishes that these complaints were dismissed on tie votes. Given that finding, we deny the respondents’ motion to dismiss the appeal.
The Democrats also argued that the Board’s vote was not reviewable by a court because “the Board’s exercise of judgment and discretion in its investigatory capacity must be ‘absolute, final and non-reviewable.’” The supreme court disagreed, and ruled that it had authority under the Election Code to review the Board’s tie vote. “The Board’s orders state they are ‘final and appealable.’ Hence, the orders are judgments of the Board. The [Republican Party] was adversely affected because the orders resulted in dismissal of its complaints without a public hearing. Those dismissals are, therefore, subject to judicial review under the plain language of section 9-22 [of the Illinois Election Code].”
Next up: The Illinois Supreme Court’s analysis of the standard of review of the Board’s dismissals. But if you can’t wait, click here for Cook County Republican Party v. Illinois State Board of Elections, No. 106139 (1/23/09
This lawsuit grows from a political fight in Knox County, Illinois. After he took office as Knox County State’s Attorney, John Pepmeyer began an investigation into “improprieties” by current and former county employees of the county state’s attorney’s and sheriff’s offices. Two Assistant State’s Attorneys, Dean Stone and Michael Kraycinovich, were targets of Pepmeyer’s investigation. Stone and Kraycinovich in turn started their own investigation of Pepmeyer concerning allegations that he was guilty of sexual harassment.
Stone and Kraycinovich asked the trial court for appointment of a special counsel for their investigation into Pepmeyer. Pepmeyer asked the court for a special prosecutor for his investigation into Stone and Kraycinovich. The trial court appointed the Illinois Attorney General as special prosecutor of both investigations.
The trial court later modified the appointments. The Attorney General was left to investigate Pepmeyer. A former State’s Attorney for another county, William Poncin, was named special prosecutor to investigate “other Knox County public officials,” including Stone and Kraycinovich.
Pepmeyer appealed. He claimed that Poncin’s powers were too broad and infringed on Pepmeyer’ authority. While the appeal was pending, the Attorney General found there was no basis to investigate Pepmeyer − so the trial court terminated the Attorney General’s appointment.
Further complicating the case, Pepmeyer and Poncin brought the State’s Attorneys Appellate Prosecutor into the act. All three reached an agreement to divide their investigatory powers. Pepmeyer and Poncin then asked the appellate court for a “conditional remand” to direct the trial court to issue an order in accord with the agreement among Pepmeyer, Poncin, and the Appellate Prosecutor.
Stone and Kraycinovich objected to Pepmeyer’s and Poncin’s request. In response, Pepmeyer argued that Stone and Kraycinovich did not have standing in the appellate court to raise an objection or to participate in the appeal. Pepmeyer’s theory was that Stone and Kraycinovich lost standing when the trial court terminated the Attorney General’s appointment to investigate Pepmeyer.
The Third District Illinois Appellate Court ruled that Stone and Kraycinovich did not have standing in the appellate court “because they have failed to show an injury to a legally cognizable interest.” Nor did they have a sufficient “direct, immediate, and substantial interest in the subject matter” to give them standing as non-parties under the Illinois Supreme Court Rules.
The appellate court also denied Pepmeyer’s request for conditional remand “because a remand to the circuit court with directions to enter the proposed order would amount to an exercise of supervisory authority, which the appellate court lacks.”
Read the entire case, In re Appointment of Special Prosecutor, No. 3-07-0553 (1/29/09), by clicking here.
The Illinois Constitutional Convention Referendum Case has been resolved – for the moment. An Illinois appellate court affirmed the trial court’s remedy for the “downright misleading” and unconstitutional ballot: hand out a flyer to voters telling them to disregard the referendum “Explanation” and “Notice” that are printed right on the ballot. (The two blog entries directly below give the lawsuit background and the legal problem.)
The bottom line is that citizens will vote on a ballot that a court has ruled is unconstitutional. This is a disaster for the Illinois referendum process. It is shameful testimony that the process for amending and formulating the core document that gives life to the government is not safe in the hands of politicians and their bureaucratic apparatus. It was folly ever to think otherwise.
Here’s what happened in the appellate courts last week.
On Thursday October 9, the voter group of plaintiffs, later joined by the Chicago Bar Association and Lt. Governor Patrick Quinn, asked for a direct appeal to the Supreme Court of Illinois – that is, without going to the intermediate court of appeals. On Tuesday October 14 the supreme court denied the request in a 6-1 vote.
That killed any chance of reaching the supreme court in time for it to make a meaningful ruling before the November 4 election. The supreme court did not issue an opinion or otherwise state a reason for its decision not to take the case. Unless one of the justices talks about it publicly, we’ll probably never know why the court refused the case.
Minutes after being informed by the supreme court clerk that the motion for a direct appeal had been denied, I got a fax from the Illinois First District Court of Appeals. The appellate court ordered all parties to file memoranda the following morning justifying appellate jurisdiction. If the appellate court were to rule that it did not have jurisdiction, it would not rule on the propriety of the “flyer remedy.” This raised the possibility that neither the supreme court nor the appellate would rule at all.
The previously scheduled hearing in the Illinois First District Court of Appeals went forward on Wednesday the 15th. The court had scheduled the hearing for argument on the Bar Association’s motion to expedite briefing and ruling, and to prevent absentee, military, and early voting on the unconstitutional ballots while the appeal was pending. Instead, there were about two and one-half hours of argument on the appellate court’s jurisdiction and the substantive merits of the case.
First thing on Thursday October 16 the appellate court faxed its ruling. The request to prevent voting the unconstitutional ballot was denied. The trial court’s “flyer remedy” was affirmed.
The result was about as bad as could be for voters. Coming on the heels of the supreme court refusing to take the case, the voters are left with a ruling that allows voting on an unconstitutional ballot. That’s a tailor-made lawsuit that could question the fairness and legality of the referendum.
The government-engineered ballot brings more disgrace to a state government that has overabundant corruption. And for now, the government’s ballot, that improperly steers voters away from a constitutional convention, has prevailed in court.