Steve Thomas
Attorney at Law

Chapter 5

Interpreting the Constitution

When I appealed Judge Difnais’s dismissal of the case I brought challenging Judge Finson’s right to serve as Piatt County’s resident Circuit Judge (see Chapter 3), I experienced more of the same of what I had found in the trial court. It was not until oral argument that I discovered that my appeal was not being well taken.

Justice Robert Steigmann ridiculed me calling my argument “stupid” (yes, he used that very word), and asked me why I should not be held in contempt for filing the appeal. I was prepared for a serious, reasonable discussion of the issues I had raised in my written brief, and instead I received hostility and bar-room logic from the court. And these justices, I wondered, are supposed to be the cream of the crop of Illinois justice?

The Assistant Attorney General actually argued that the fact that I lost the 2016 election against the judge (remember, I was a late entry and a write-in candidate; my name was not on the ballot), was somehow relevant. It wasn’t, and yet none of the justices chastised her for this argument or even commented on it. This irrelevant fact was even mentioned in the court’s written opinion!

That opinion was unpublished and therefore has no value as law – no attorneys could later cite it as legal authority. It is available on Westlaw at 2016 IL App (4th) 150350-U. In it, the Appellate Court completely ignored my main legal argument: that under Thies v. State Board of Elections, the 1988 Illinois Supreme Court decision mentioned previously, the court should not apply the “plain meaning rule to thwart the obvious intention of the Constitution drafters by excluding enlightening material.” Yet the Appellate Court did apply the “plain meaning rule,” which states that if the meaning of a provision of the Constitution is clear, there is no need to consider any extraneous material, whether it is enlightening or not. I argued that this case, as did Thies, “involved one of the rare instances where resorting to the debates of the convention reveals the exact question presented for review … was asked and answered by the delegates in the convention.” That is to say, the Constitutional Convention showed that a county’s resident judge was not merely to represent the county in the circuit. The only logical conclusion from this is that the resident judge should serve his or her home county. And yet, this argument merited no response whatsoever in the Appellate Court’s written opinion!

And, even apart from Thies, I had argued that the phrase “there must be at least one Circuit Judge from each county” suggested strongly that being “from” a county contained some intention that the judge actually serve that county primarily. That is the usual practice, and is why the State Board of Elections puts those running for resident Circuit Judges on the ballots of the voters of the home county only. If resident Circuit Judges were meant to serve anywhere in the State, what meaning is there to the Constitution’s Article VI section 16, which permits the Supreme Court to assign judges outside their home jurisdictions only temporarily? The Appellate Court’s written opinion did not even acknowledge these arguments.

The written opinion also did not reflect that during oral argument Justice Lisa Holder White engaged me in a series of questions about the Constitutional Convention record. At that point at least for the sake of argument, she was conceding that Thies authorized the court to consider the Constitutional Convention record. She challenged my reasoning, however, that the drafters intended that resident Circuit Judges serve their home counties. But she did not acknowledge that the Constitutional Convention record states that the “one Circuit Judge from each county” is not intended merely to assure representation of each county in the circuit. (See again the excerpt from the Constitutional Convention record cited in Chapter 3.)

I believed that I had the right to appeal to the Illinois Supreme Court, since the Appellate Court’s decision interpreted the Illinois Constitution in a certain way for the first time under court rules. Yet, when I did so appeal, the Supreme Court declined to take the case. Apparently, the Supreme Court was being very favorable to Judge Finson in interpreting its own rules, as well as the Illinois Constitution. Chief Justice Rita Garman was the one, I believe, who appointed Judge Finson in the first place, and I suspect that her hand was at work here, although again, that is pure speculation, because the Supreme Court gave no reason for refusing to take the case.

As a result of the way the Appellate and Supreme Courts handled this case, it is apparent to me that there exists an unwritten rule among Illinois judges to protect each other, regardless of what the law says – even the Illinois Constitution and Supreme Court precedent. Circuit judges will not sit in judgment of another circuit judge, Appellate Court judges will disregard rational arguments in opposition to trial court judges, and the Supreme Court will not get involved if it can avoid doing so. This unwritten rule apparently has the approval of the Chief Justice of the Illinois Supreme Court, who (all the judges seem to reason) just cannot be shown to have made an error in appointing a judge in her district, only because some insignificant attorney questions that decision.

During the appeal, I again took the matter to the press, and the press still refused to report it. Apparently they too defer to the courts as inerrant in their opinions and workings. So much for freedom of the press. What if, as I argue now in this journal, the courts are unfairly biased on this issue? The press doesn’t seem to think that deserves to be reported to the people, or at even the argument presented to the people so they can decide. Think about it – how often does the local press saying anything critical about any judge?

I write this in the hope that the voters of Piatt County see that, if there is ever a time for someone to question a judge or the justice system that supports them, it is an election to choose the next judge. But I worry that the people don’t want to be bothered, and that the November election will amount little more than a superficial popularity contest. But you, dear reader, are reading this, so that gives me hope.