'Judge shopping' rule challenged by Tillery firm

Steve Gonzalez Aug. 31, 2006, 12:18pm

Stephen Tillery

Ann Callis

Aaron Zigler

The Korein Tillery law firm is challenging a new rule adopted by Madison County Chief Judge Ann Callis that limits substitution of judge to only one time as a right.

Attorney Aaron Zigler wrote in a letter to Callis that Local Rule 4.01 which was enacted May 2, exceeds the local court's authority.

Callis signed the order in an effort to rein in "judge shopping" tactics employed by class action lawyers, she stated.

In Illinois any party to a lawsuit can substitute a judge once without cause.

"Further Motions for Substitution of Judge as of Right will NOT be allowed," Callis wrote in her May 2 order. It was issued on Callis' second day as chief.

Zigler wrote, "As you are aware, Illinois Supreme Court Rule 21(a) grants the circuit courts the power to enact local rules.

"However, this rule is limited by the Illinois Constitution and statute (735 ILCS 5/1-104), to regulating the court's dockets, calendars and business. Accordingly, local rule 4.01 exceeds this authority."

Zigler also contends any new rule must be consistent with Illinois law and any rule promulgated by the circuit or appellate court may not abrogate, limit or modify existing laws.

"Plaintiffs believe that local rule 4.01 does exactly that," Zigler wrote.

Existing case law confirms that each plaintiff in a multi-party case is entitled to a separate change of judge, he claims.

"Local rule 4.01 unlawfully deprives plaintiffs in putative class actions of their statutory right to substitute one judge as a matter of right," Zigler wrote.

Zigler also claims the new rule also violates the Illinois Constitution's doctrine of separation of powers.

"Under the doctrine of separation of powers, courts cannot legislate, overwrite or extend legislation," writes Zigler. "A court cannot rewrite a statute to make it consistent with the court's idea of orderliness and public policy."

He also claims the new rule treats plaintiffs and defendants differently so it also violates the Equal Protection Clauses of both the U.S. and Illinois Constitutions.

The case Zigler used to send the motion involves the Pentium IV processor.

In 2002, his firm filed suit on behalf of several people claiming that the defendant Dell Computer was selling and promoting computers with the Pentium IV arguing that it does not perform to the expectations of a reasonable consumer.

In March, the Record reported that attorney Stephen Tillery was able to get two "free shots" in removing judges from a proposed class action lawsuit against American Equity Mortgage and ABN Amro.

He accomplished this by adding new plaintiffs and filing a substitution motion for them like the one he had filed for the original plaintiff.

In January, the Record began reporting the plight of Circuit Judge Don Weber, who after three months on the job, had 35 big cases yanked from his court by plaintiff's lawyers.

Weber was appointed by the Illinois Supreme Court in October to fill the vacancy created by the retirement of Circuit Judge Phillip Kardis.

To date, Weber -- the only Republican judge in Madison County presiding over civil cases -- has been bumped off a total of 114 cases. Not all, but many have been class action cases.

In his strongest act of self defense, Weber has asked the Fifth District appellate court if a party can waive the right to free substitution through misconduct.

He was prompted by the controversial actions of attorney Thomas Maag, who avoided Weber and sought an associate judge to sign an emergency order, even though Weber was assigned to the case.

Weber asked the court if a party could waive the right to free substitution of a judge through improper judge shopping.

Weber wrote that Maag employed "hallway procedure" to avoid the assigned judge (Weber) and seek out an associate judge (Barbara Crowder).

Weber wrote, "The Court further finds that the Plaintiffs' attorney is using the automatic change of judge statute for improper 'judge shopping.'"

Callis will most likely be represented by the Illinois Attorney General's office.

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