Garman seeking to fill two appellate court seats

DANVILLE — Rita Garman has been working the phones for the last couple of weeks talking to circuit judges who might want a promotion.

The Illinois Supreme Court justice, whose home office is in Danville, needs to fill two vacancies on the 4th District Appellate Court. She hopes to have people selected and ready to work in January.

"I would say 10 or 12 have talked to me or are talking to me. It's very encouraging. Most say, yes, they would be interested. A couple have said 'I like what I'm doing and wouldn't like the isolation of the appellate court,'" Garman told The News-Gazette.

Her plan is to appoint someone to fill the vacancy created by the Oct. 30 death of Justice John McCullough, 81, of Lincoln. Whoever takes that position will have to run for election in 2014 in the 30 counties of the district, which spans Illinois' mid-section.

Whoever is appointed will have a tremendous leg up in the general election by virtue of having almost two years' experience in the office.

The other vacancy is an assigned position. Justice Robert Cook, 69, of Quincy, had retired from the appellate court in 2008 after 17 years of service there but was recalled by the Supreme Court in April 2011 for a term that was scheduled to end Dec. 3. He was filling the vacancy created when Sue Myerscough, 61, of Springfield was named to the federal court.

Temporary assignments, even some that last for years, are common for the appellate court.

Appellate Court Justice Robert Steigmann of Urbana was temporarily assigned to the 4th District from Champaign County for five years beginning in 1989 before legislation created another appellate judgeship for which he had to run for election in 1994.

It's a pretty safe bet that whoever Garman selects is likely to be plucked from the more populous counties, since many of the smaller counties have only one circuit judge.

There's no requirement that she choose a sitting circuit judge for the appointed position but she must choose a circuit judge for the assigned position.

There is no visible difference to the public in whether a judge is assigned or appointed, just to the persons picked and their colleagues from their circuits.

The trial level post of the circuit judge accepting the assignment remains vacant for as long as the judge is assigned to the appellate court. That means his or her fellow judges have to pick up that person's workload. It also means if the appellate court assignment ends, he or she can go back to work as a circuit court judge.

The judge who is appointed to the appellate court could run for election to the appellate court and lose and then not have his or her circuit judgeship anymore, either.

Fourth district appellate court justices hear cases in Springfield but have offices in their home counties. Unlike the Supreme Court, appellate justices have to hear every single appeal, making their workload daunting. The Supreme Court picks the cases it wants to hear.

Garman, who was a trial judge in Vermilion County and an appellate justice before her election to the Supreme Court, said she understands the feelings of those who are happy to stay put as a circuit judge but has no regrets about having left that post for the appellate court.

"It's an opportunity to see the law from a different perspective. I enjoyed every level I was at. I had a very positive experience as a circuit judge and really liked doing the work. I could have done the position at any level I served at indefinitely. I really have enjoyed the work," she said.

The 54 appellate court justices in Illinois currently earn about $198,200 a year.

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ROB McCOLLEY wrote on December 17, 2012 at 8:12 am
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I'd like to see some non-judges appointed to the appellate bench.  There's a shortage of good judges already, and judicial experience is more important at the district court level. You don't need to know about procedure & rules of evidence to be a good appellate justice.

ReeseW wrote on December 17, 2012 at 5:12 pm

"you don't need to know about procedure and rules of evidence to be a good appellate judge"  What exactly do you think the appellate court does?  It reviews the decisions of lower courts, including whether they have followed correct procedure and evidenciary standards. Appellate court justices are the authority on procedure and rules of evidence.

ROB McCOLLEY wrote on December 17, 2012 at 11:12 pm
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The Federal Rules of Evidence and the Federal Rules of Civil Procedure are the authority, not a team of three state appellate justices.

 

A trial judge needs to understand the 24 exceptions to the hearsay rule, backwards and forwards, and be able to rule on evidentiary objections instantly, in real time.

 

Appellate justices hear cases, take the case briefs back to their chambers, and mull things over with their clerks for a few weeks.

 

Or to put it more succinctly: I'm right and you're wrong.

Nice Davis wrote on December 23, 2012 at 3:12 pm

Holy cow, the FRE and FRCP are the governing rules for Illinois state courts!? Somebody better ring up every state court and tell them they've been erroneously using the Illinois rules.

ROB McCOLLEY wrote on December 17, 2012 at 11:12 pm
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For example, would you care to guess how many of the current US Supreme Court justices were trial court judges, ever, at any point in their careers? (This is the highest appellate court in the land.)

 

Go ahead, take a stab at it.

SaintClarence27 wrote on December 18, 2012 at 9:12 am

I'm guessing you missed the part in the article where it mentioned that the nominees MUST have been circuit judges at some point.

ROB McCOLLEY wrote on December 18, 2012 at 1:12 pm
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... and I think you missed the distinction between appointments and assignments.

SaintClarence27 wrote on December 18, 2012 at 2:12 pm

You're right - I missed that wording. Sorry. But it wouldn't be the FCRP - it would be the IL SCt rules.

ROB McCOLLEY wrote on December 18, 2012 at 3:12 pm
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Is there any meaningful difference you'd care to cite for purposes of distinguishing one set from the other?

 

And once you've done that, can you further cite any reason why it would be harder for an appellate justice and his/her law clerks to research that set of rules in the weeks-long period between receiving briefs from opposing parties and holding a hearing, or the subsequent weeks-long period between the hearing and the issuing of a ruling?

ReeseW wrote on December 18, 2012 at 10:12 am

In Illinois, the appellate court follows the Illinois Rules of Evidence, which were not adopted and codified until 2011.  Before then the evidenciary rules were found scattered throughout various statutes, caselaw and Supreme Court rules (that would be the Illinois Supreme Court).    We modeled our rules off of the Federal ones but have never adopted them, as there are several notable differences between the federal rules and ours.  The authority is only as good as the body interpreting and applying it.


Also, the appellate court often must determine whether rulings at the trial court level constitute an abuse of discretion.  Having appellate justices whom have actually made rulings at a trial court level and conducted trials is essential. 


As for the reference to the current Supreme Court Justices, if you need the practical difference between being a 4th District Appellate Court Justice in Illinois and a sitting Justice of the Supreme Court of the United States explained to you then I'm not sure this discussion is worth having.

ROB McCOLLEY wrote on December 18, 2012 at 1:12 pm
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You're right, the discussion is not worth having.  Especially your contributions, which are irrelevant and/or untrue.

 

The correct answer is "zero."

SaintClarence27 wrote on December 18, 2012 at 2:12 pm

No, it's not.

ROB McCOLLEY wrote on December 18, 2012 at 3:12 pm
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The correct answer is Sonia Sotomayor.

SaintClarence27 wrote on December 18, 2012 at 3:12 pm

Yes, it is. Though of course your larger point is still correct anyway.

ReeseW wrote on December 18, 2012 at 4:12 pm

Since you've made an overreaching generalization that my assertions are untrue, I assume you've been unable to actually disprove any of them.  Probably because I'm right.  As for your personal attack since I expressed difference of opinion, that's simple rudeness.  As a practicing attorney, I'll go ahead and assume that my expertise in the field of law is better than yours. 

SaintClarence27 wrote on December 18, 2012 at 4:12 pm

I think the best argument is that although trial judges make more decisions without the support of clerks, without the benefit of time, and without the support of added research, trial judges don't make binding precedent. Appellate judges can. This is why it's more important to get it correct at the Appellate level, which is why it's necessary to have practiced judges there.

ReeseW wrote on December 18, 2012 at 5:12 pm

Well said.

ROB McCOLLEY wrote on December 18, 2012 at 7:12 pm
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I disagree that I've made any personal attacks, but I'm not completely against them.

 

To make it more personal, I would attack your spelling and word choices. Who versus whom is one example, and since in place of because is another. I'll trust you have a sharp paralegal who shields your clients from such errors.

 

Yes, your argument is just generally wrong. You're implying that a shift from common law to statutory law was a game changer. That's a mischaracterization, both as to content and operation. It's also a strawman, and thus irrelevant.

 

Trial judges have to know about the law AND about procedure. Their job is, frankly, more difficult and more complicated. That's why it's bad to poach from their (already depleted) ranks.

ReeseW wrote on December 19, 2012 at 11:12 am

I did not imply the shift was a gamer changer, I corrected your multiple errors as to what type of law and procedures are in place for use by the judicial body we’re debating.  As for your characterization of my argument as a straw man, you are, again, incorrect.  The difference between the current rules of evidence and their form and the mish mash before the current codification is immense, for both judges and attorneys.  The current format makes it much easier to determine and apply the appropriate standards, it also lessens the burden on the appellate court when reviewing whether a trial court followed procedural rules.  Again, a working knowledge of the practice of law is helpful here. 


Your argument that 4th district appellate court justices are just like Supreme Court Justices continues to be laughable.  Supreme Court justices have double the number of clerks that 4th district justices are allotted (I won’t even get into the difference in ability level between someone who is hired by a state appellate justice to clerk vs. those with the qualifications to clerk for SCOTUS) and a fraction of the caseload.  The 4th District has to rule on every case that is sent its way, while they have a larger amount of time to render their decisions than trial courts do, they still have an enormous number of cases to be reviewed and ruled upon.  The Supreme Court on the other hand chooses which cases it wishes to hear.  This leaves a large disparity in the type of work being done by each court.  State appellate courts slog through every person who wants their guilty plea back, a multitude of civil issues, post conviction petitions, and a myriad of procedural complaints from both criminal and civil cases.  SCOTUS on the other hand cherry picks issues and doesn’t worry about being reversed by a higher court.  To try to equate the two shows an ignorance of the justice system that is inexcusable.   

ROB McCOLLEY wrote on December 19, 2012 at 11:12 am
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You're tiresome.

 

If you are an attorney, and capable of arguing these points, don't you think it's possible that other attorneys might be capable of parsing these same issues?  Could they not, in fact, adjudicate them? Say at the appellate level, for example?

ReeseW wrote on December 19, 2012 at 12:12 pm

No one is forcing you to respond to me, if you're tired, don't reply.


And the questions is not if lawyers with no previous judicial experience are capable of being appellate justices, it's who is better prepared and suited for the job.  I think that someone with prior experience is better suited and would do a better job.  That's my opinion. 


Perhaps you should call Justice Garman and put your name in, since you know everything.

ROB McCOLLEY wrote on December 19, 2012 at 2:12 pm
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Oh jeeeeezus.

 

Look, if you don't want to engage in personal attacks, quit attacking me. Address the issue.

 

Phrases like "What exactly do you think the appellate court does?" and "if you need the practical difference ... explained to you then I'm not sure this discussion is worth having" might engender reasoned responses, but they're plenty likely to start a flame war.

 

If you don't regard them as attacking, or personal, and you think I'm the one who started the skirmish, then I suggest you do not submit your name to Justice Garman.

rsp wrote on December 20, 2012 at 9:12 am

(I'm going to regret this.) 

 

Appellate justices hear cases, take the case briefs back to their chambers, and mull things over with their clerks for a few weeks.

 

Or to put it more succinctly: I'm right and you're wrong.

My first thought reading this, your second post, was a picture of you with your tongue stuck out and thumbs in your ears; second thought was if the appellate justices didn't really know rules how would they be able to ask the right questions? They can't exactly ask people to come back and say "I just read this thing here and I have a question for you people", can they? But what would I know, I'm not a "lawyer". (Need to spend more time with grown ups.)

ROB McCOLLEY wrote on December 20, 2012 at 7:12 pm
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I don't think it's a bad question at all. I think it's an excellent question -- although you (and all of us) should keep in mind that threaded view means the 2nd response vertically is not necessarily the 2nd response chronologically.

 

Appellate hearings consider points of law, not questions of fact. If there's a case specifically involving a question of civil procedure, the case briefs and trial record will cite the sections of code and/or case law to be discussed. Everyone involved knows what the issues will be, ahead of time. For example, Illinois Central Gulf Railroad v Parks.

If you prefer something from this week, Mashal v. The City of Chicago and if you'd rather read something specifically from the 4th appellate district Jackson v. Randle.

 

Same with cases involving the law of evidence. 

People v. Richter, 2012 IL App (4th)

 

People v Villa

 

Sure, there are exigencies in appellate law. A stay of execution comes to mind. But then, that's why it's a stay of execution rather than a let's call this whole thing off of execution.

 

Sometimes judges make errors. In fact, that's the reason we have appellate courts! Sometimes appellate courts make errors, and sometimes different appellate districts decide the same issue differently. That's why we have supreme courts!

 

But responses to motions are like tooth brushing after a while. You do it every day, it's drearily familiar even though -- in the long run -- it's a matter of great consequence. Most of the time it's literally a rubber-stamping. (Yes, literally.)

 

I don't know why Ms. Witherspoon continues to argue the point, but then some lawyers just like to argue I guess.  

ReeseW wrote on December 20, 2012 at 2:12 pm

I wasn't attacking you personally, I was questioning your opinion.  And I clearly wouldn't have submitted my own name, since I think only current judges should be eligible for an appellate seat, and I'm not a judge. 

Dfens wrote on December 19, 2012 at 11:12 am

It's a relief to know you aren't completely against personal attacks.

While I imagine that you and I probably share a great number of views from what little I know about you from the intartubes, has it ever occurred to you that your arrogant and abrasive manner is the reason you fail to win many supporters? Something you might wish to consider next time you run for mayor. 

Or not, I don't care. I just wonder if folks, generally, realize how self-absorbed and self-important they sound sometimes. Lawyers, especially, and you, in particular. I'm guessing that you do.

Maybe the problem is that running for Mayor is just aiming too low for an intellect of your caliber. You sound a lot more like Vice-President of the United States. Either way, have a great day lording your supremacy over the sea of unwashed masses about you.

ROB McCOLLEY wrote on December 19, 2012 at 12:12 pm
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Okay.

ROB McCOLLEY wrote on December 19, 2012 at 2:12 pm
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UPDATE:

http://www.news-gazette.com/news/courts-police-and-fire/2012-12-19/white...

 

So, as I feared, the assignment of sitting trial judges will now further complicate the docket for the rest of the bench.

 

Her assignment will mean that Dan Flannell, chief judge of the Sixth Circuit, will have to juggle some of his help to pick up her workload. It could mean occasionally sending Champaign County judges to Decatur to fill in.

 

I talk to Judge Flannell regularly (mostly about basketball) so I know how challenging it is for him to handle the Moultire docket plus the Piatt docket (because of the Finson/Rhoades conflict) plus all the other cases he has to oversee, including the politically charged DeWitt battery case.

 

The Sixth Circuit needs more trial judges right now, not fewer.

SaintClarence27 wrote on December 19, 2012 at 2:12 pm

I'll do it.

Sid Saltfork wrote on December 19, 2012 at 3:12 pm

Oh my... attorneys arguing without someone paying them..................

ROB McCOLLEY wrote on December 19, 2012 at 5:12 pm
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What's your billing address, Sid? Is there still beer there?

Sid Saltfork wrote on December 19, 2012 at 9:12 pm

Has the Champaign Bar Association already had it's Christmas party?  The subject of appellate judges must be a hot item for discussion.  Do they still have the Judges Ball?

ReeseW wrote on December 20, 2012 at 9:12 am

CCBA party was last night.  Not much discussion of the appellate appointment's, other than a little surprise that Ladd wasn't one of them.  Lawyers feeding Illinois, the ISBA's new program was presented and Judge McCuskey was honored for his contributions. 

Sid Saltfork wrote on December 20, 2012 at 12:12 pm

"Lawyers feeding Illinois"?  Sure that is not reversed?  If it is in the right order, hopefully it will be publicized more.  Did Marvin get inducted into the Hall of Fame?

ReeseW wrote on December 20, 2012 at 2:12 pm

ISBA is encouraging giving back.  Lawyers occasionally do good things; pro bono work, volunteering, donating (time, money, food).  No Marvin was not inducted in to the Hall of Fame (or if he was it happened after my 4th glass of wine), perhaps next year.

Sid Saltfork wrote on December 20, 2012 at 3:12 pm

The pro bono work is a very good way of giving back.  The donating of time, money, and food is commendable also.  There are many decent attorneys out there.  I will lay off the attorney joking.  Attorneys have every right to make a living like the rest of us. 

The sad reality is that justice in America costs money.  The more money one can afford to pay determines the justice one receives.  The pro bono work helps a few without money to receive justice.

ReeseW wrote on December 20, 2012 at 7:12 pm

Mr. McColley and I agree on the function of the appellate court, if not on who should be appointed to it.  The appointment argument has become somewhat moot now that the appointment and assignment have been made.

As for the finger pointing in regards to liking to argue... that is something I would say we have in common, given your repeated commentary and responses.  Hello kettle.

And not that it makes any difference but I'm not a Ms. 

rsp wrote on December 21, 2012 at 6:12 am

You would think more lawyers would do more pro bono work just for the sake of the opportunities to argue. 

Sid Saltfork wrote on December 21, 2012 at 1:12 pm

How many attorneys are there in Champaign County versus certified auto mechanics?

rsp wrote on December 22, 2012 at 3:12 am

That's a scary thought. I know a lot of mechanics because I use to be married to one. I've found it easy to get free help for those who couldn't afford it kind of easy. Legal advice? Look at the yellow pages. The names go on and on. I recently was looking to get a legal document written and they all wanted to base the fee on the amount of the estate, a percentage, not based on the effort or time it would take them to do it. And most wouldn't do it because they didn't think the estate was "big" enough. So I found one and they use software to do it. They can do it really fast. Lots of lawyers in town and lots of certified mechanics.