Madison County judges called 'masochistic' for not letting Weber share burden

By Steve Korris | Mar 16, 2006

After a month in office, Madison County Circuit Judge Lola Maddox has taken responsibility for the toughest decisions in the courthouse.

By contrast, Circuit Judge Don Weber can't get near a tough decision after four months in office.

They started out the same -- as appointed judges replacing retired judges -- but Maddox gets a fair chance and Weber does not.

Maddox gets to hear two sensational cases involving bankrupt attorney Gary Peel of the Lakin Law Firm in Wood River.

In one, Peel claims Circuit Judge Don Weber holds a bias against the Lakin firm that should disqualify Weber from hearing the case.

In the other, Peel claims "pro se" that his former wife, their son and the Record newspaper damaged him by publishing facts about his bankruptcy.

On top of those, Maddox inherits a load of important suits from retired Circuit Judge George Moran.

She plans to kick into high gear March 29, presiding over a docket of 44 management conferences in class actions, negligence, benzene, silicosis and other specialties.

Maddox picked a fresh batch of cases for the day. Most of them started last year. Some arrived in court so recently that Moran had taken no action on them.

Weber's docket carries lively cases along with dead ones, but his authority over the lively ones may not last. Every week more cases slip away from him.

In Illinois anyone can substitute a judge without cause. Plaintiffs have exercised this right to bump Weber off dozens of cases.

In Weber's strongest act of self defense, he has asked the Fifth District appellate court if a party can waive the right to free substitution through misconduct.

In that case, Yount v. Shashek, Ferguson assigned the file to Weber but Associate Judge Barbara Crowder signed an emergency order for plaintiff attorney Thomas Maag.

Before Weber could figure out how his case wound up in Crowder's hands, plaintiff attorney Charles Armbruster of the Lakin firm moved for substitution.

Weber signed a substitution order March 8. In it he asked the appellate court if a party could waive the right of substitution through improper "judge shopping."

Attorney Jack Joseph of Chicago, the state's top authority on judicial substitution, said Weber did a sensible thing in placing the question before the appellate court.

"This is a deplorable situation but it may be best to let everybody work it out and not further fan the flames of whatever is causing this peculiar response," Joseph said.

Joseph said in January that other judges should complain about the extra work that falls on them through substitution. No judge has complained.

"The other judges are being a little masochistic," Joseph said. "One judge is not being allowed to pull his own weight through no fault of his own."

Maddox crammed docket

Maddox's March 29 docket carries a big benzene suit, O'Donnell v. AK Steel, with a host of defendants, motions to dismiss and forum challenges.

The case belonged to Weber, but O'Donnell moved for substitution.

Maddox's docket also carries far reaching proposals for class actions.

In Alsup v. 3-Day Blinds, plaintiffs propose to represent "hundreds of millions" who bought window blinds with dangling cords.

In Coy Chiropractic v. Travelers Casualty and Surety, the plaintiff challenges the insurer's payments to medical providers. The defense has moved to dismiss in light of last year's Illinois Supreme Court decision in Avery v. State Farm.

Weber also will hold court March 29, but his docket smells stale. Most of the cases started before 2004. Many have settled informally or simply fizzled away.

On March 8, plaintiff Larry Joiner moved for substitution in a breach of contract suit against Timothy Kaiser. Weber had set a management conference March 29.

On March 13, plaintiffs in a proposed class action against Ford Motor Company moved for substitution. Weber had set a management conference March 29.

Weber also faces the possibility of automatic substitution in Lakin cases.

After a free substitution, a party can force a second substitution only by proving bias. In the case before Maddox, Peel aims to prove Weber's bias against the firm.

In that case, Katherine Henderson sued Wells Fargo Home Mortgage in a proposed class action. Henderson had used her free substitution before Weber took the case.

Peel wrote in his substitution motion that in 1992 the Lakin firm sued Weber and Penguin Books for using a photograph that their client, Linda Condray, had taken.

According to the suit, Weber obtained the photo in the course of investigating a murder as a Madison County prosecutor.

Chief Judge Edward Ferguson assigned Peel's motion to Circuit Judge Nicholas Byron, but Byron refused to hear it because the defendant substituted him off the case.

Ferguson assigned the motion to Maddox. She has not set a hearing.

While Peel awaits a hearing, he continues filing the same motion in other cases.

On March 7, citing the Condray case, he moved to substitute for cause in a proposed class action of Carmelita McLaughlin against Alliance Mortgage.

The case sent ripples of laughter coast to coast last year, after Circuit Judge Phillip Kardis added Alton attorney Emert Wyss as a third party defendant.

Wyss had started the case by telling McLaughlin her lender might have charged an improper fee. Wyss's title company, Centerre Title, had closed McLaughlin's loan.

Wyss signed McLaughlin up with three law firms besides himself. He stood to collect a tenth of the proceeds, but his name did not appear on the complaint as co-counsel.

Alliance Mortgage responded that if anything went wrong at closing, Wyss and Centerre Title would be liable. Kardis added Wyss and Centerre Title as defendants.

The Record reported that Wyss accidentally sued himself. The report drew national attention when, a website of oddities, featured it.

Kardis then dismissed Wyss as a defendant but he did not dismiss Centerre Title.

After Kardis retired the case stalled. Finally Weber dusted it off and set a March 29 management conference. Peel then moved to bounce Weber off the case.

Peel wrote that the years since the Condray case did not matter. He wrote that, "…the rule provides no time limit for the disqualifying prejudice or bias."

Weber's turn-about

When the substitution blitz started last year, Weber set hearings on the motions but cancelled them and started signing substitution orders automatically.

Now he has decided to follow his original impulse and hold hearings.

In the McLaughlin case, Weber did not refer Peel's motion to Ferguson for assignment of a separate judge. Weber set it in his own court March 31, along with three other motions of Peel for substitution with cause.

Weber has also decided to hold hearings on motions for substitution without cause. He set three for March 17, three for March 24 and three for March 31.

He even split a case so he could grant substitution without turning the case loose.

In that case the Theis Law Firm moved for substitution as second plaintiff in Big Sky Excavating vs. Illinois Bell Telephone.

The plaintiffs claim the phone company cheated business customers by persuading the Legislature to resolve a complaint before the Illinois Commerce Commission.

Under an act that the Legislature passed and Gov. Ryan signed in 2001, the phone company pledged $90 million in refunds and $30 million in investments.

A Sangamon County suit, seeking to declare the law unconstitutional, failed.

Big Sky then sued in Madison County. In 2004 Judge Phillip Kardis certified the suit as a class action and declared the law unconstitutional.

Last year the Illinois Supreme Court reversed Kardis on constitutionality. By then Kardis had retired and Weber had taken the case.

The Theis Law Firm moved Jan. 9 for substitution without cause.

Weber granted the motion only for the law firm. He wrote that Big Sky exercised its free substitution in 2003. He wrote that Big Sky would stay on his docket.

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