McGlynn fields range of questions on

By Ann Knef | Mar 13, 2006

Appellate Court Judge Steve McGlynn

Even though most voters will have no choice in the primary election that looms a week away, a vault of information about Illinois' 165 judicial candidates can be found in a single search at

The Illinois Civil Justice League has developed the website which includes all candidates' biographies -- and for those who responded, unedited answers to ICJL questions. Even if candidates ignored the survey, the ICJL provided information about them such as newspaper endorsements or results from the Illinois State Bar Association poll.

According to the ICJL, 118 judicial candidates face opposition in the primary. Thirty-eight of the primary winners are virtually assured of taking a seat on the bench because they face no opposition in November.

In what the ICJL labels the "hotbed of the 2004 election cycle," the 5th Appellate Court race is expected to as hard fought as the Illinois Supreme Court race was between Lloyd Karmeier and Gordon Maag.

"(The race) seems to be on the verge of a repeat performance in 2006, with a broader battlefield for slightly lesser stakes," the ICJL predicts.

Republican candidate for the 5th Appellate Court, Judge Stephen McGlynn, made a stop in Edwardsville after a day-long tour of the district on Friday. He predicted the race would be intense and that he would have to fend off cheap shots.

He is running unopposed in the March 21 primary.

So far, appellate court candidates squaring off in the Democratic primary, Bruce Stewart and Bill Berry, have not submitted responses to the ICJL survey.

McGlynn's answers to the ICJL questionnaire appear in their entirety below.

"His thoughtful answers are among the best ever submitted to the ICJL," remarked Ed Murnane, ICJL president.

What steps do/would you, as an elected judge, take to maintain your independence from campaign contributors and special interest groups? Do you impose any limits beyond those required by law on contributions?

Answer: I do not solicit money directly. Second, I do not review donations to my campaign, nor do I review the D2s (State Board of Election Public Campaign Disclosures detailing a campaign's receipts and expenditures) of my opponents. Third, I recuse myself from consideration of any matter in which I feel that, for whatever reason, I cannot give all parties a fair review of their claims.

Illinois currently has a mixed system of selecting judges. Most are elected by voters, some are appointed to fill vacancies, and others (associates) are selected by other judges. Is this the best way to select judges and to ensure the highest quality judiciary? Are there specific reforms in the judicial selection process that you would like to see? What are the pros and cons of merit selection of judges vs. election? Should sitting judges run for re-election rather than retention?

Answer: The people in Illinois adopted a Constitution which provided for the election of judges for open seats and periodic review by the people so that may determine a judge's continued fitness for office and evaluate job performance. I respect that decision.

I believe the people opted for that system so that there could be a check on judicial authority and activist judges or bad judges could be removed short of some impeachment process. Many have expressed concern about money in judicial races.

The people of Illinois certainly understand that opting for partisan elections of judges would mean judicial campaigns would have to raise funds like everyone else running for elective office.

Nonetheless, I could support public financing of elections with the candidate of each party receiving public funds based upon a formula of a certain amount per registered voter in the District. That, coupled with an amendment of Supreme Court Rules requiring recusal on matters involving a litigant or a lawyer who contributed a substantial sum of money, $5,000.00 or more, to any group that directly weighed in favor of that judge's election.

This is not a perfect solution but may resolve some of the tensions that exist surrounding judicial elections and large campaign contributions.

I could also support a switch to merit selection of judges with a fixed term and a mandatory retirement age. The process used in the Federal system, nomination by an Executive, with a confirming vote of a legislative body, is a reasonable way to select judges.
It is my opinion that at the heart of Illinois' Constitution is the notion that the voters should have a say in the selection and retention of judges.

Therefore, I have no criticism of a process in which a judge seeks election instead of retention because the people are still empowered to vote and therefore decide who shall fill an office. However, the current system allows for abuse in that a judge's decision to seek retention or election can be made very late in the process.

A judge should be required to make public his or her decision to seek retention or election six months before any filing deadline for candidates. That way those who may wish to support someone else for the office have adequate time to recruit a candidate to run and secure the necessary signatures to get on the ballot.

As a practical matter, in a county or district dominated by one party, it is unlikely that a judge, who is a member of the dominant party and decides to run for election instead of for retention, would draw an opponent.

If there is no opponent, then the voters are effectively denied the power to retain or dismiss that judge. It is a very difficult endeavor for a qualified attorney or judge to decide to run and get the necessary signatures to file in such a compressed time frame.

Moreover, the rules should be changed so that the ballot will not read that the election is for the seat held by judge X who is also a candidate for that seat. It will create confusion and give the incumbent judge a grossly unfair advantage.

What would you say to a frustrated voter faced with a ballot with dozens of judicial candidates, almost all of whom are unknown to the voter, about how to cast an informed ballot?

Answer: The frustration is understandable. Historically, broadcast and print media have done an inadequate job in providing voters with sufficient information about judges to allow one to make informed decisions.

That, coupled with rules that prohibited, until recently, judges to speak about issues and judicial philosophy, made it very difficult for the average voter to develop sufficient insight as to the fitness and philosophy of a judicial candidate.

The best advice for voters in the Metro-East and Southern Illinois is to seek out information from multiple sources including those independent sources who now specialize in trying to offer by print, media, or internet, ongoing information about our courts and the judges that serve us.

Fortunately, a pro-active citizen now has ample resources to gain sufficient insight about our judges to vote wisely.

Has the recent Supreme Court decision on the First Amendment rights of judicial candidates altered your views on and/or approach to "campaigning" for judicial office?

Answer: Yes, it allows judicial candidates to speak more freely about their own judicial philosophy so as to allow voters to make a better informed decision on casting a vote.

In close cases, judges (particularly appellate judges) often have choices to make as to the direction in which they believe the law should go. In those circumstances, some of the greatest judges have been activists, others have practiced restraint, and others have followed no particular philosophy about the place of the judiciary in our system of separate branches sharing power. Which of these approaches/philosophies best captures your views of the proper role of judges in society?

Answer: My judicial philosophy is most similar to that of Chief Justice John Roberts and Justice Antonin Scalia and former U. S. Supreme Court Justices Jackson, Harlan and Frankfurter. As Justice Scalia wrote, judges should read the Constitution by giving reasonable interpretation to the plain language of the document coupled with a firm understanding of the historical context in which the law was originally conceived.

I believe judges should be extremely reticent to find constitutional rights or powers that are not clearly reflected in the plain language of the Constitution.

We need to recognize that the policy making powers in our system rest with the legislative branch. As judges we must respect this important fact.

The State judicial system is different from the Federal system in one critical respect: the Federal system has very little common law, relegated mostly to areas such as maritime law, while the State system relies significantly on common law rules governing such diverse matters as torts and contract disputes.

In that sense, State Court judges do have policy making responsibilities as they formulate common law. In formulating common law, judges should consider traditional American values, the expectations of parties to a transaction and demonstrate an appreciation of principles of capitalism and our free market economy.

Judges need to apply common sense and consider how decisions will impact our families, our children and those who are easily exploited because of age, physical or mental infirmity.

At all times, judges must understand that their job is not about picking winners and losers, nor social engineering, nor redistribution of wealth; the judge's job is to do justice.

It is often said that because the judiciary neither commands the sword nor the purse, its power and legitimacy rest on the persuasiveness of its opinions. Yet a large number of cases -- even cases worth large sums of money and presenting significant and/or novel legal issues -- are resolved in the Circuit Courts of Illinois through the issuance of one line orders that fail to give even an inkling of the Court's reasoning. Do you see this as a problem for the judiciary? If so, do you have any ideas on how to remedy the problem?

How should orders – particularly those subject to appeal – be written? As a prospective circuit judge, do you believe the parties are entitled to the basis of your ruling including the findings of fact and your application of the law to those findings of fact? If an appellate candidate, please offer your thoughts.

Answer: The Appellate Courts evaluate questions of fact and questions of law very differently. We are deferential to judges and juries in the way they resolve contested facts. As to questions of law, the Supreme Court and Appellate Courts have the primary responsibility to resolve questions of law.

When a trial court enters a judgment or ruling without explanation, the job of the Appellate Court is more difficult because we have to divine whether the Court reached its decision based upon a judgment as to contested facts or an application of the law, or a mix of the two.

It is always advisable for trial courts to articulate the basis and rationale of any judgment or substantive ruling on an important matter. The failure to articulate a basis or rationale for a particular judgment compromises the court's design in meting out justice.

Recently proponents of "Sunshine in Litigation" have sought legislation to eliminate or severely restrict the judicial entry of protective orders in litigation between private parties involving products that may be considered dangerous to the public.

Opponents of these efforts argue that protective orders are necessary to ensure privacy, protect trade secrets and foster settlements. What is your view of the role which protective orders serve in the efficient resolution of private litigation? Do you agree that judges should have broad discretion to enter such orders when appropriate? How would you respond to each side of the debate?

Answer: I support the use of protective orders. Our discovery rules are very broad and require litigants to divulge sensitive or very personal information so that there can be a fair trial on the merits of the claims.

However, the courts have compelling reasons to fashion remedies including the use of protective orders so as not to compromise other legitimate interests of the parties outside of the litigation.

When the courts cavalierly dismiss legitimate concerns to keep sensitive and personal information confidential, it creates an untenable situation in which litigants feel pressure to lie or fail to be fully candid in responding to discovery or settle or dismiss claims for reasons not based upon the merits of the claim, but rather because of the amount of embarrassment or business loss or disruption they would experience should such sensitive confidential information be made public.

Are there civil litigation reforms that you would like to see enacted to remedy particular problems that you have detected, either as a practicing lawyer or as a sitting judge? Are there reforms that would benefit the civil justice system? What needs to be changed? Should the enactment of any such changes be the province of the legislature, the Supreme Court or by Constitutional amendment?

Answer: As a sitting Justice of the Illinois Appellate Court, I am hesitant to instruct the legislature as to what laws it should enact and which ones it should jettison. I am also hesitant to instruct the Supreme Court as to its rule- making authority.

Generally speaking, I encourage all with policy or rule making authority to value highly the concept that controversies should be resolved on the merits and not on technicalities. I encourage policy or rule makers to look at any proposed law and/or rule and place one's self in the shoes of those to be affected, and contemplate whether it is fair and reasonable.

Do you feel that our judicial system adequately deters and penalizes frivolous litigation? If not, what reforms would you like to see?

Answer: Our system has adequate rules and regulations in place to punish frivolous litigation and to discourage it. The biggest problem is the Courts' failure to properly enforce those rules and regulations.

I do not believe we need more rules and regulations, I believe the courts need to be diligent in enforcing the ones we have.

Do you believe the Illinois Constitution precludes legislative establishment of limitations on civil damages? Are there or should there be distinctions among economic, non-economic and punitive damages?

Answer: I believe there is a reasonable expectation that my court will be asked to rule specifically on this question as it relates to the recently enacted medical malpractice reforms adopted by our State Legislature. Therefore, I believe it inappropriate to answer this question directly. It is appropriate though to highlight those parts of the constitution that govern questions of limitations of damages.

Article 1 § 12 mandates that "Every person shall find a certain remedy in the law for all injuries and wrongs which he receives to his person, privacy, property or reputation. He shall obtain justice by law, freely, completely, and promptly."

This provision has been invoked to invalidate laws that have prohibited completely a common law right to seek relief in the courts in certain types of situations, but has been held not to invalidate statutory grants of partial immunity.

The Illinois Constitution guarantees equal protection of the laws. Article 1 §2. This has been interpreted to bar laws that treat people unequally on grounds not related to a valid governmental purpose or for a constitutionally valid objective.

The courts employ the traditional analysis involving equal protection cases, requiring a rational basis test for most government action except in those instances where a fundamental right is interfered with or the discrimination involves a suspect classification such as race or religious affiliation. In those instances strict scrutiny is employed.

Finally, the Constitution mandates a separation of powers among the Executive, Legislative and Judicial branches and no branch shall attempt to exercise the powers reserved to another.

I note that the Worker's Compensation scheme, created by the legislature, and held constitutional by our Supreme Court, puts significant caps on economic and non-economic damages of injured workers.

It also denied any recovery for pain and suffering. The Supreme Court has also held as constitutional, legislative bans on punitive damages in certain types of cases such as professional malpractice cases.

The Constitution does empower the Courts to evaluate civil damages on a case by case basis. The courts are empowered to order additur or remittitur of damages awarded when a judge or jury properly determines the question of liability, but awards damages in an amount that is clearly unreasonable. I believe these tools are under-utilized.

The so-called "English Rule," where the loser pays, seems to be a popular concept among Illinois citizens. Do you believe that a "loser pays" requirement in civil cases would help reduce the number of frivolous civil lawsuits filed in Illinois? Are there reasons why Illinois should/should not consider such a rule?

Answer: Much of our statutory and common law rules, governing civil litigation are premised upon the assumption that attorneys fees are controlled by the "American Rule" and not the "English Rule."

The way business in America is conducted, as well as the way insurance policies are drafted and rates are set presume the American Rule will govern absent a specific agreement between the parties to the contrary.

Loser pay terms are not uncommon in business transactions and the courts routinely enforce such terms.

The problem arises in the context of personal injury claims. One can anticipate that a contract may be breached and the damages arising therefrom are more easily ascertained.

So too, is the cost associated with enforcing compliance. Such cannot be said in the context of a personal injury claim.

Before I would offer an opinion on question as to which is the better approach, I would want to learn more about how the English Rule has worked were it has been controlling. The issue of the way attorneys fees are governed is an issue of tremendous philosophical and practical importance.

I am always open-minded about ways we can improve our justice system and minimize the number of frivolous lawsuits and the costs such impose upon society. I would want the benefit of data as to the practical impact a change from the American Rule to the English Rule would have upon the ability of the poor to secure full and equal access to our courts.

I would want to know the impact such a change would have on the ability of the seriously injured to secure full and equal access to our courts.

I would want to know what such a change would translate into in terms of true savings, if any, for litigants as well as the impact such would have on reducing frivolous litigation and bad faith litigation practices.

Armed with such information, I would then be willing to offer opinions on the subject.

It is my belief, based upon my experience as a lawyer, that if there is a true loser pay rule with regard to attorneys fees, the costs of litigation may increase, perhaps substantially, if negligent defendants are required to pay the injured party's attorney's fees.

Presently, a plaintiff almost always pays his or her fees by sharing a percentage of his or her recovery of medical bill reimbursements, lost income and pain and suffering with his or her lawyer.

If you move to a true loser pays scheme, then the negligent party, or its insurer or employer, would have to pay not only the plaintiff's medical bills, lost income, and pain and suffering, but, also pay an additional amount for attorney's fees plus all costs for expert fees, deposition costs and other expenses normally associated with litigation.

Thus, those who see loser pay rules as a way to minimize the costs of litigation and reduce the number of lawsuits may, in fact, see an explosion in costs.

It is the duty of the courts to try to assure our system of justice can be administered in such a way that the costs do not overwhelm the benefits.

(For current sitting judges) What do you consider to be the most serious obstacle or detriment to you as a judge in fulfilling your duties? Has the problem been getting worse or has it been lessening in the past few years? How do you deal with this problem now, and what changes would you like to see to alleviate the problem in the future?
Answer: The biggest obstacle for judges in the Fifth District is the considerable pressure brought to bear on judges to chose sides in litigation.

There are powerful interests who pressure judges to rule favorably for certain litigants, or their lawyers, for reasons other than that the merits of the dispute would so dictate. The pressure is not to rule fairly but to accommodate the demands of the powerful.

The only way to overcome such pressures is to have the personal fortitude to put the rule of law and the rights of all who appear before you above your own ambitions and personal interests. There is held by certain powerful interests the notion that judicial power should be exercised in the same way and for the same reason as executive or legislative power.

This problem is compounded exponentially by the fact that there has been a lack of balanced government in some parts of the District and political corruption is endemic - not rare.

The exercise of judicial power must be solely for the purpose of upholding the Constitutional rights of every citizen, the rule of law and the fair and orderly dispensation of justice.

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