Articles Posted in Politics?

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.

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.

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.

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.

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.

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.

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.