Lakin's class actions to remain on Weber's docket

Steve Gonzalez Mar. 30, 2006, 7:30am

Madison County Chief Judge Edward Ferguson has ruled that the Lakin Law Firm did not meet its burden to show that Circuit Judge Don Weber is biased against the firm.

Following a contentious hearing on the matter Monday, Ferguson ordered that all 14 of the cases the firm wanted removed from Weber should remain with the judge who, in five months, has had 92 yanked from his docket.

Attorney Gary Peel, who was fired by the Lakin firm after being indicted, originally filed 14 substitution motions claiming that Weber was prejudiced against the firm because Lakin represented a client who sued Weber in 1992.

The case eventually settled out of court with a $25,000 settlement being paid to Lakin's client by the publisher of the book Weber wrote, not Weber.

A federal grand jury has charged Peel with bankruptcy fraud, pornography and obstruction of justice; he will be arraigned on April 13.

Peel did not attend the hearing in Ferguson's court, but has been seen researching files in the Circuit Clerk's office this week.

Charles Chapman, Roy Dripps and Paul Marks represented the Lakin clients at the hearing. (See related story: Lakin attorney calls Weber a liar).

In Ferguson's order he writes, "Though the plaintiff is mentioned in the motion there is no evidence or argument of prejudicial feelings towards the plaintiff but rather the law firm."

"The court finds that based upon the allegations in the motion and Judge Weber's affidavit the motion would fail quickly because the court would not rule that there is a per se showing of prejudice by merely showing prior litigation against the Judge by these attorneys," Ferguson also writes.

Chapman also argued that Weber was biased towards the firm because of the way he handled a substitution of judge motion as a matter of right in the Yount v. Cassens case.

Keith and Cindy Yount of Ohio filed suit against Cassens & Sons, Cassens Corporation and "unknown defendants claiming that Keith, a truck driver employed by Cassens Transport, was performing his normal duties as a car hauler for his Illinois-based employer in Missouri when an idler broke at a defective weld. He alleges serious injuries.

The Younts are represented by Thomas Maag and Brian Wendler of Wendler and Ezra of Collinsville and Charles Armbruster of the Lakin Law Firm in Wood River.

The case was assigned to Weber the day it was filed Jan. 26. But, Associate Judge Barbara Crowder, a candidate for circuit judge, signed Maag's emergency motion to shorten the time for defendants to answer discovery because the statute of limitations would expire March 11.

Eight days after Crowder signed the order, Shashek's attorney, Gordon Broom of Edwardsville, removed the case to U.S. District Court.

Broom wrote that no defendants had been served with the complaint.

On Feb. 14, Maag filed a motion to remand the case back to state court and award the Younts with costs and attorney fees claiming removal is, "completely and totally improper in this case, and is patently and totally objectively unreasonable."

"Defendants will likely argue, based on the tenor of their Notice of Removal, that an in-state defendant can remove a case before she is served, even if all defendants are citizens of the forum state," Maag also wrote.

On Feb. 17, Chief District Judge Patrick Murphy remanded the case back to state court. Maag then filed a substitution of judge motion and attacked a proposed order, however Weber set a special hearing and heard arguments on March 7 and wrote a five page order allowing the change of judge.

In his order Ferguson writes, "The evidence and arguments presented clearly indicate a sufficient basis to raise the actual issue of prejudice. This is not a frivolous motion."

Ferguson noted that he thought the motions were brought in good faith in the best interests of the law firm to protect the rights to a fair trial.

But Ferguson also notes that the motions filed by the Lakin firm accuse Weber of being biased because of the suit they brought, not the Yount case.

"The conduct complained of arises not in these cases but in an unrelated case. Therefore, no proof of prejudice has been shown by actions of Judge Weber in these cases except in several where matters were set for a date different than those set by the previous judge," Ferguson writes.

He was referring to allegations made by Chapman accusing Weber of entering setting orders "to trap the Lakin Law Firm into the clutches of Judge Weber."

Ferguson writes, "It is not unusual for a new judge to review files and enter setting orders to bring matters quickly before this judge."

"It is clear from the evidence that orders entered by Judge Weber probably affect not only the plaintiff readiness for trial but also the defendants," Ferguson wrote.

Ferguson then addressed Weber's actions in the Yount case.

"I will analyze those actions in light of all the circumstances surrounding those actions and the status of Judge Weber as a newly assigned judge to the circuit bench," he writes.

"The actions of Judge Weber in the Yount case I believe are those of an inexperienced jurist dealing with issues and frustrations which were probably never faced before by a judge in this circuit," Ferguson writes.

Weber has signed 92 motions for a change of judge, and still has 27 more motions pending.

Ferguson noted that Weber's order in the Yount case "went beyond of what was necessary" and said that all of the other matters in his order would be considered dicta if it were an appeal.

"With his limited experience on the bench and with his obvious frustration with one lawyer, which all judges have felt at one time or another, he used cliches and catch phrases more intended for a press release or a novel than should appear in a judge's order."

Ferguson also notes in his order that he did not believe Maag interfered with the assignment process of the court.

Ferguson also gave Weber some advice in his order.

"A judge must not take these motions so seriously and risk the possibility that actual prejudice will creep in to a basis for his rulings," writes Ferguson.

"The bottom line regarding everything that was said by Judge Weber's order was that he was right on the law when he granted the motion, all else was a little venting of his frustrations to which this court does not attach significance to show actual prejudice arising from the lawsuit originally brought against Judge Weber."

Weber declined to comment for this article and Chief Judge Ferguson was in Chicago for a judges' meeting.

More News