A day late, Tillery appeal of judge substitution rule falls short

Steve Korris Mar. 6, 2008, 6:40am



Stephen Tillery of St. Louis blew his chance to overturn Madison County Chief Judge Ann Callis's rule limiting plaintiffs in a class action to a single substitution of a judge.

Tillery wanted the Fifth District appellate court in Mount Vernon to declare that every plaintiff in a suit could substitute a judge, but he filed his appeal a day too late.

Fifth District judges dismissed his appeal as untimely on Feb. 8, without considering the question he presented.

They left intact an order of Circuit Judge Daniel Stack, finding that Callis's rule did not violate the U.S. Constitution or the Illinois Constitution.

Illinois law allows any party in a case to substitute a judge without cause, if the judge has not made a substantial ruling.

For years Tillery narrowed the field of available judges in his class actions by substituting once for each plaintiff.

Two years ago Callis, in one of her first acts as chief judge, adopted a rule banning repeated substitutions by class action plaintiffs.

Tillery chose to challenge the rule in a case he already lost.

He had sued computer maker Dell Inc. in 2002, claiming it deceived customers into buying computers with Pentium 4 processors.

Dell moved to dismiss or compel arbitration.

Circuit Judge Philip Kardis denied the motion, and Dell appealed.

In 2005 the Fifth District reversed Kardis, who by then had retired.

The Fifth District remanded the case to Madison County in 2006, with instructions to dismiss or stay pending arbitration.

Dell moved to enforce the Fifth District decision, but at a hearing before Stack on Aug. 28, 2006, Tillery moved for judicial substitution.

That same day, Tillery associate Aaron Zigler sent Callis a letter informing her that the rule exceeded her authority.

"Under the doctrine of separation of powers," Zigler wrote, "courts cannot legislate, overwrite or extend legislation."

He wrote that the rule violated equal protection clauses of U.S. and state constitutions, "in that it improperly treats plaintiffs in putative class actions differently than defendants in those cases."

Stack, at a hearing last Oct. 23, denied substitution.

Ten days later, Tillery asked Stack to certify an appeal.

"Plaintiff disagrees with this Court decision and believes that the Court's decision conflicts with other courts," Tillery wrote.

He warned that denial of his motion would void any further orders from Stack.

For Dell, Robert Bassett of Belleville described the dispute as a diversion.

He wrote Dec. 5 that the appellate court gave plain instructions to dismiss or stay.

"Neither of those outcomes has occurred, however, as plaintiffs have pursued a lengthy diversion concerning the Illinois statute and Circuit Court rules regarding substitution of judges," Bassett wrote.

The Fifth District did not answer the constitutional question, finding instead that Tillery did not file his appeal on time.

Dell's motion to enforce the Fifth District decision of 2006 remains pending.

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