Tillery and Co. argue for overturning Callis' substitution rule

Steve Gonzalez Nov. 2, 2007, 12:27am

An aggressive class action law firm that has reaped many a handsome award in Madison County is hoping to overturn the first reform Chief Judge Ann Callis instituted as head of the Third Circuit.

Korein Tillery wants a rule that limits the number of judge substitutions overturned so that plaintiffs' counsel in a class action against Dell can knock off Madison County Circuit Judge Daniel Stack.

At a hearing Oct. 23, Aaron Zigler of Korein Tillery and Max Gibbons of co-counsel Swedlow & Associates argued that Callis' Local Rule 4.01 violates a separation of powers statute.

"Our position is that the local rule is invalid because it contradicts clear statutory mandate from the
Illinois State Legislature, violating the separation of powers principle in the Illinois Constitution by taking away the right of the Illinois Legislature to promulgate a substitution of judge rule," Gibbons said.

In the end, Stack denied plaintiffs' motion for substitution, but invited an appeal. The case had already been substituted twice on plaintiffs' motions.

On May 2, 2006, just two days after becoming chief judge, Callis and the circuit judges created the rule which provided that plaintiffs in class action cases would only be allowed to take one substitution of judge as of right.

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

Stack has said that the reason for establishing the local rule was to clarify how judges read state statute in defining "a party."

He said that Third Circuit judges believed that in class action cases a party was the class even if it hadn't yet been certified.

After Zigler and Gibbons presented their arguments, Stack said:

"...[H]ow far do you go with regards to class action cases to where the plaintiff class who decides they don't care for a particular judge and they have already had three changes go out and find another person out of these thousands of people and add them as a party plaintiff so they can take a change from that judge, and then they don't like the next judge, so they go out and get another one until there aren't any judges left to hear the case? Or until you can get to one judge that you think is on your side."

In August 2006, Zigler sent Callis a letter challenging the rule by stating, "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 also argued that 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 in his letter to Callis.

Zigler also claimed the new rule treats plaintiffs and defendants differently in violation of the Equal Protection Clauses of both the U.S. and Illinois Constitutions.

In the suit filed against Dell in 2002, multiple plaintiffs claim that Dell computers with Pentium IV processors do not perform to the expectations of a reasonable consumer.

Zigler and Gibbons filed the substition motion on behalf of Donald Braddy, who wants Stack off the case as a matter of right.

But Dell opposed the motion citing that other plaintiffs in the case had previously substituted two other judges.

Gibbons took the lead on the oral argument in front of Stack, stating that the appellate court has consistently held that in cases where there is a conflict between a local rule and an Illinois statute the Illinois statute governs.

He argued that when analyzing whether the rule conflicts with the statute, one has to look at the "plain language" of the statute.

According to Gibbons, Black's Law Dictionary defines party as "one by or against whom a lawsuit is brought."

"I don't think that there is any real dispute that Mr. Braddy has brought a lawsuit, just like Dell is a party because they've had a lawsuit brought against them," Gibbons argued.

"Each of the class reps are a party under the plain language of the statute."

Stack asked Gibbons whether any Illinois courts have ever defined class reps. Gibbons responded that they have not but have many times dealt with issues involving cases with multiple plaintiffs or defendants.

Citing a 1991 asbestos case from the Fifth District Boatman v. A.P. Green Refractories, Gibbons said the 19 defendants wanted to use a motion for substitution of judge one after the other but the plaintiff argued that is not the way the statute should operate.

"The Court said it is possible that the statute shouldn't operate that way, but the way that it is written it clearly does operate that way because each party is unambiguous," Gibbons said.

Gibbons also said that the statute does not have an exception for class actions and also points out that Madison County previously allowed multiple plaintiffs in class actions to take substitutions.

"The Legislature has to be assumed to be aware of the way this statute has operated," he argued. "And this has been a fairly big public policy argument across the state. The Legislature understands how the statute works in class actions. It understands that each party is interpreted as each party and hasn't amended the statute."

Gibbons also argued that each one of the class reps has an individual case.

"As the caption says, this case individually and on behalf of all others similarly situated," Gibbons argued. "So they have an individual case here, Your Honor."

Gibbons argued that if the class is not certified and continues as an individual action against Dell, the local rule would have stripped Mr. Braddy's statutory rights.

Gibbons also argued that the local rule implicates equal protection problems.

He argued that while the local rule does not affect an individual plaintiff case, it does affect this case because they have been stripped of their rights as individual plaintiffs, which implicates equal protection.

"The reason why is that in equal protection, laws and, in this case, rules cannot be arbitrary as with respect to the object of the legislation, and they can't treat similarly circumstanced parties different," Gibbons argued.

"And here not only are the plaintiffs in this case who have brought an individual action as well as a proposed class action treated differently as other plaintiffs in the State of Illinois, they're also treated completely different than defendants, including in this case."

Dell's attorney, Bob Basset said that the plaintiff attorneys are trying to delay the case because in March 2006, the Fifth District issued a mandate which said the case needs to be dismissed or stayed pending arbitration.

Basset argued that Dell is entitled to have the mandate enforced and that is another reason why Stack should deny the motion for substitution.

Basset said that when he asked for a hearing for the mandate to be enforced, plaintiff attorneys waited four months to file the motion asking for a new judge.

In regards to the local rule, Basset said he did not believe there was a problem with it.

"The local rule is within its powers in this regard and does not violate separation of powers because all it does is define what a party is in its interpretation under the Illinois statutes," Basset said. "It is not in opposition to the Illinois statute."

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