In Madison County lawyers pronounce the verdict: Weber asks appellate court for ruling

By Steve Korris | Mar 9, 2006

Thomas Maag

In a normal court, a judge pronounces a verdict and a lawyer loses. In the court of Madison County Circuit Judge Don Weber, a lawyer pronounced a verdict and the judge lost.

Weber signed a substitution order March 8, giving up a case in which Associate Judge Barbara Crowder entered an emergency order before the file reached Weber.

He granted substitution after attorney Charles Armbruster told him he had to grant it. At a March 7 hearing, Armbruster told Weber he lacked discretion even to hold a hearing.

Gordon Broom, representing defendants Cassens Corporation and Cassens & Sons, argued that plaintiffs waived the right to substitution through misconduct.

Broom told Weber he should protect the random and impartial system of appointing judges. He said the conduct of plaintiff counsel would wreck the system.

Attorney Thomas Maag, who obtained Crowder's emergency signature, did not appear. Weber asked about Maag. Armbruster said, "He had another matter."

Weber said, "I wish Mr. Maag was here. Why did he take this case to that judge?"

Armbruster said he did not know.

Weber asked if in his wildest imagination he could think of a legitimate reason for taking the file to Crowder.

Armbruster said, "She was the first judge he saw?"

Weber said he could find no authority to deny a substitution motion due to misconduct.

On the other hand, he found no authority to require substitution regardless of conduct. After the hearing he decided to seek out some authority.

In his order Weber certified a question for the Fifth District appellate court:

"May a trial judge deny an automatic change of judge motion upon finding that the party is using the statute for improper purposes not related to its proper objective, such as for 'judge shopping' and to thwart the assignment powers of the chief judge?"

Keith Yount and Cindy Yount filed the suit Jan. 26, claiming that Keith Yount suffered injuries while hauling cars for Cassens.

The complaint listed Armbruster, of the Lakin Law Firm in Wood River, as first counsel. It listed Maag, of Wendler & Ezra in Collinsville, second to Armbruster.

Maag had switched from the Lakin firm to Wendler & Ezra days earlier.

Though the case belonged to his former firm, Maag signed the complaint and took it to the courthouse.

There Maag presented emergency interrogatories demanding facts from Cassens about manufacturers, distributors and owners of a tractor and a trailer.

Maag also filed an emergency motion to shorten the defense's time to answer, pleading that the statute of limitations would expire March 11.

On the interrogatories and on the emergency order, Armbruster's name appeared first but Maag signed.

Chief Judge Edward Ferguson assigned the case to Weber the day it arrived, but Maag presented it to Crowder that day. Crowder signed an emergency order.

Broom removed the case to U. S. district court Feb. 3, but the U.S. court remanded it to Madison County Feb. 21.

The Younts immediately moved for substitution.

In Illinois, every party to a case can substitute a judge once without cause, if the judge has made no substantial ruling.

Plaintiffs have bounced Weber off dozens of cases through substitution, leaving him with few cases on which to build a record in his bid for election to a full term.

When the substitution blitz started last year, Weber set hearings on them but cancelled the hearings after determining that he had no choice but to sign cases away.

The Maag case afforded him an opportunity for a hearing, even with Maag missing.

Armbruster told Weber he already granted a substitution for Wendler & Ezra.

Weber said, "There weren't any mitigating extenuating shenanigans."

Armbruster said conduct had no bearing on substitution. Weber nodded to Broom and said, "They think it does."

Broom said that according to Maag, Kevin Yount did not know who made his truck.

"That's like a carpenter saying he doesn't know who made his saw," Broom said. "It's like Jeff Gordon saying he doesn't know who made his race car."

He said plaintiff counsel has filed dozens of suits against his clients. He said every judge was fully aware of the Cassens trailer operations.

Broom also said that Maag moved for an emergency order as a sham or fake, to trick Cassens into a response that would have accepted local jurisdiction.

If the fake had succeeded, Broom said, Maag would have added foreign defendants.

He said Cassens has removed cases with foreign defendants to federal court.

He invoked the Magna Carta and its recognition of the benefits of open courts.

"Here we are 800 years later," said Broom, "trying to explain how an order was entered without hearing or notice."

Armbruster said, "There is no case that says what we did was wrong."

Weber called it "blatant judge shopping," but said he would reluctantly sign an order.

After the hearing Armbruster said he did not know what appointment Maag had that was more important.

Weber wrote in his order that plaintiffs' attorney "transformed a simple negligence lawsuit into a Machiavellian palace intrigue."

He wrote that, "…the hallway procedure employed by the Plaintiff's attorney on January 26th was being used to thwart the chief judge's assignment powers."

He wrote that he allowed the motion and referred the file to Ferguson for reassignment.

"The parties are ordered not to interfere with the Chief Judge's assignment powers," Weber wrote.

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