Drug testing is central theme in St. Clair County judicial race: Rudolf v. McGlynn

When St. Clair County judge Michael Cook was arrested last year on heroin possession charges, the community was stunned.

Not just because he was addicted to drugs while serving as drug court judge, but also because it was learned that fellow judge Joe Christ's death two months earlier was not really from natural causes as authorities indicated at the time. It was actually due to a cocaine overdose brought on by partying with Cook at Cook's Pike County hunting lodge. The public also found out that county probation officer James Fogarty was dealing and using drugs with Cook and Christ. They further learned that Christ, a long time felony prosecutor in the State's Attorney's office before his appointment as judge, arranged for the dismissal of a ticket issued to a drug dealer who supplied Cook, and Cook dismissed it even though it was not on his docket.

Cook quickly resigned in May 2013, a guilty plea followed, and now he serves a two year prison sentence at a minimum security federal prison camp in Pensacola, Fla.

But, in the 18 months since he was arrested, the Record has reported that an FBI agent in a sworn affidavit portrayed Cook as partner of heroin dealer Sean McGilvery rather than his customer, as their eventual guilty pleas would indicate. Rather than pursuing more serious charges against Cook, the federal prosecutor ultimately charged Cook with offenses based on a warrant for a home search involving a drug user owning weapons, instead of the FBI agent's warrant for tracking drug dealing.

The newspaper also reported that genetic tests connected Cook more closely to a “one-hitter” cocaine device that was found on Christ's body during autopsy, than it did to Christ.

While denying the device was his - in spite of DNA evidence showing that he was the primary user - Cook told Pike County investigators that Christ received the paraphernalia as a gift for becoming judge. In the same interview, Cook told Pike County investigators that there "were several people like him within the judicial system in his area that were a part of this activity."

When it came to Cook's sentencing, U.S. District Judge Joe McDade of the Central District of Illinois, twice rejected U.S. Attorney Stephen Wigginton's proposed plea agreement of 18 months in prison. McDade held that in light of Cook's status and various aggravating circumstances, "including the impact of his crimes on the public’s confidence in the court system and disruption of governmental function," 18 months was "not sufficient."

Whether the public has been satisfied in the federal prosecution of Cook, in less than four weeks, voters will elect a successor to the seat he vacated.

Recent interviews indicate that the two candidates have vastly different views on the impact Cook's addiction has had on the community as well as public confidence in the judicial system today.

One says the problem of illegal drugs in the court system was isolated and not at all indicative of the judiciary as a whole. The other is not confident that illegal drug use among professionals in the St. Clair County court system has been completely eradicated.

The candidates

Associate judge Heinz Rudolf, Democrat, said he has heard from people during his campaign that Cook's addiction was "horrible," but a situation which "happens in all walks of life."

Rudolf said people have told him they're "glad it's been addressed."

He cited U.S. District Judge Joe McDade's pronouncements about Cook and the court system, and offered his own assessment.

"The federal court said 'we know it was isolated,'" Rudolf said, and "not indicative" of the St. Clair County judiciary.

McDade came down hard on Cook's behavior and the damage it caused to confidence in the judiciary. But, despite his worries about the integrity of the judiciary, he struck a note that Rudolf emphasized.

"This is not a case involving the indictment of the court system of St. Clair County and its judiciary as being corrupt or lacking in integrity, although some would be inclined to give it that spin," McDade wrote at the beginning of his sentencing opinion. "Rather, this is simply a case, a tragic case at that, involving drugs and firearms by an otherwise law abiding citizen who happens to be a drug addict and a judge."

Rudolf echoed McDade saying that what happened with Cook is "not indicative" of the St. Clair County bench.

"We have a good judiciary," he said.

As to whether the public has lingering doubts about the integrity of the system, Rudolf said he tells people, "Please come by to see what's going on. These are public court rooms. Prosecutors, public defenders and judges, they all work hard."

He said that campaign literature put out by his opponent suggesting otherwise "is the worst form of political patronage."

Republican Steve McGlynn, who was appointed by the Illinois Supreme Court to fill Cook's vacancy, said that he hears a concern from within the community that the drug problem "has not been completely cleaned up, nor sufficiently prosecuted."

"I am not confident illegal drug use among professionals here in St. Clair County has been completely eradicated," McGlynn said.

He added that the same may be true of all large counties in the state. "The problem is a serious one and cannot be ignored," he said.

McGlynn said that he has called for legislation to create a special division within the Attorney General’s office to investigate and prosecute drug crimes in law enforcement and the judiciary.

"Viewing the aftermath of this drug scandal, I believe more times than not, serious conflicts arise making it difficult for a local state’s attorney to fully prosecute all violations of state law," he said. "An independent team of special prosecutors would have an easier time and the independence of the inquiry would instill confidence in the public that justice is done.

"No one has taken responsibility for this systemic failure that directly affected the felony criminal docket, the State’s Attorney’s Office and the Probation Department," he said. "When no one takes responsibility for failures and there are no penalties for failure, failure proliferates."

Drug testing for judges

Both candidates have submitted to testing, but that's about the extent of where they align on the issue. They diverge on the question of drug testing for all judges.

McGlynn said he has "led by example" on drug testing. He said he submitted to testing last year and made the results public by delivering them straight to the Belleville News-Democrat for publication. He expressed distrust of third parties, other than newspapers, who could manipulate results.

McGlynn also calls for mandatory drug testing of all judges - elected circuit judges and appointed associate judges. He believes that his fellow circuit judges should pledge not to vote to appoint or reappoint associate judges without those applicants first passing a drug test.

"Regrettably, neither my colleagues nor opponent have joined me in calling for testing and pledging to make drug testing a necessary condition for support," McGlynn said.

Rudolf responded by saying that the U.S. Supreme Court and Illinois Supreme Court have prohibited drug testing as a pre-condition for judges, and that his personal opinions are "not important." He said judges have to submit to testing "on their own."

"I am required to follow the law," he said. "My job requires me to follow the law, not to disregard the law for points with voters."

Rudolf also claims he was first to submit to drug testing, months before he even filed paperwork to run for circuit judge, and has done so a total of five times with clean results.

"He's saying he was first to test," Rudolf said. "I tested in July 2013. I'm glad he joined me."

Experience

The key to being a good judge is to do a good job, work hard and be fair, Rudolf says. His job is to follow the law and he doesn't care about litigants' and lawyers' political party affiliation, he said.

Rudolf claims that he is better qualified for the circuit court seat than his opponent because he is a well-rounded trial court judge. He said that during his tenure on the bench, since 2006, he has presided over numerous dockets including criminal misdemeanor, family and major civil. He currently is assigned to civil dockets, including arbitration, major civil and minor civil.

He said he is "constantly" educating himself. In addition to his juris doctorate degree, he holds a master's of public administration and Ph.D from St. Louis University.

He has been an Advanced Science Technology Adjudication Resource fellow since 2009 and more recently appointed to the Judicial Conference Committee on Education, both at the recommendation of Justice Lloyd Karmeier.

He has presided over 15 jury trials in 18 months. He said he rules in a timely manner and "takes very little under advisement."

Rudolf said that if McGlynn has presided over a single jury trial, "I can't find one that he's done as a judge."

McGlynn responded saying there are "dramatic" differences between the types of cases he has handled as circuit judge and appellate judge compared to the dockets that Rudolf has presided over.

McGlynn says he has handled a "really serious docket," including cases involving murder, kidnapping, sexual assault and major environmental.

He currently presides over the chancery docket, many of the cases which are mortgage foreclosure-related, and miscellaneous remedy cases. He also has overseen the implementation of the court's mortgage foreclosure mediation program,

"We have made it much easier and less dehumanizing for people to negotiate a resolution with the holder of their mortgage and note," he said.

As for presiding over jury trials, McGlynn said he has dealt with the more complicated task of being the finder of fact as bench trial judge, rather than the "easier" alternative for jurors being finders of fact.

McGlynn has been appointed by the Illinois Supreme Court three times - first as appellate judge in the Fifth District upon the retirement of Clyde Kuehn in 2005; then as circuit judge in 2010 upon the retirement of Michael O'Malley and currently as circuit judge following the resignation of Cook last year.

He touts having authored 100 decisions and participated as a panelist in more than 300 cases while serving at the Fifth District.

"I have proven myself an exceptional judge," he said. "That is why it is rare any attorney takes a change of judge from me and why I continue to be assigned the most challenging docket in the courthouse."

ISBA Bar Poll

In the Illinois State Bar Association bar poll released in February, Rudolf was rated higher than McGlynn in the “meets requirements” category, having received a rating of 95.85 to McGlynn’s 75.49. Rudolf also was rated higher than McGlynn in the categories of integrity, impartiality, legal ability, temperament, court management, health and sensitivity to diversity and bias.

Rudolf said the non-partisan, "blind" poll is a good indicator of his standing in the legal community and evidence that he is more qualified for the circuit than McGlynn.

Regarding the mechanics of the poll, the organization mails ballots to ISBA members in the circuit or district from which a candidate seeks election.

Licensed attorneys who are not members of ISBA may also request a ballot. Attorneys are asked to respond only if they have sufficient knowledge about a candidate’s qualifications for judicial office to give a fair, informed opinion. Candidates are rated recommended or not recommended based on whether respondents agree that the candidate meets acceptable requirements for the office. Candidates receiving 65 percent or more “yes” responses to that question are rated recommended and candidates receiving less than 65 percent are rated not recommended.

McGlynn says the ISBA bar poll "tends to be skewed by politics."

"In the Metro-East, the bar poll tends to be skewed toward the person who has been endorsed by the Democrat Central Committee," he said.

As an example, he said that in 2012 when Laninya Cason was running for circuit judge as a Republican against Zina Cruse, a Democrat, her ratings dropped substantially from a previous poll.

"She (Cason) was highly rated in 2011," McGlynn said. "However, less than a year later, when she switched parties to run as a Republican, her ratings dropped by nearly 30 points. The only thing about Judge Cason that changed was her party I.D."

He said the ratings issued by the ISBA Judicial Evaluation Committee, which review candidates for upper level courts, are much more reliable indicators of legal ability.

"Professional staff contact lawyers who have appeared before the judge and get their insights about the judge," he said. "They review decisions and any published opinions. They talk to court personnel about their observations. The process is exhaustive and thorough."

McGlynn said that in 2012 when he ran against Judy Cates for a seat on the appellate court, he was rated "highly qualified" by a Judicial Evaluation Committee.

The ISBA poll rated Rudolf and McGlynn accordingly:

(Editor's note: In the March 5 print edition of the Madison-St. Clair Record, Rudolf's rating under "Legal Ability" was incorrectly reported as 7.37 due to a printer error. The Record regrets the error and apologizes for any confusion the misinformation may have created).

Integrity:

Rudolf – 96.24

McGlynn – 89.19

Impartiality:

Rudolf – 95.85

McGlynn – 79.07

Legal ability:

Rudolf – 97.37

McGlynn – 79.69

Temperament:

Rudolf – 97.74

McGlynn – 89.92

Court management:

Rudolf – 97.37

McGlynn – 89.45

Health:

Rudolf – 99.25

McGlynn – 96.47

Sensitivity to diversity and bias:

Rudolf – 98.12

McGlynn – 87.84