Ferguson rules Weber can hear Lakin cases; sets aside irrelevant argument

By Steve Korris | Mar 30, 2006

Weber was sworn in as circuit judge by Illinois Supreme Court Justice Lloyd Karmeier in November.

Madison County Circuit Judge Don Weber harbors no bias against the Lakin Law Firm and can hear its cases, Chief Judge Edward Ferguson decided after a March 27 hearing.

Ferguson heard 14 motions at once, but a 15th case took center stage.

The hearing and the order he signed two days later focused on an emergency order that Associate Judge Barbara Crowder signed Jan. 26, for attorney Thomas Maag.

Crowder's order shortened the time for defendants Cassens & Sons and Cassens Corporation to answer questions of plaintiffs Keith Yount and Cindy Yount.

Though Maag does not work for Lakin, Charles Chapman of the Lakin firm argued that Weber's reaction to Maag's action proved Weber's bias against the Lakin firm.

This confused Ferguson.

"Just a point for clarification," he said at the end. "Who did Maag work for when all of this – Who was he appearing for at the time all of this happened?"

Chapman said, "He worked for Wendler and Ezra. This case was filed by the Lakin law firm - the Lakin law firm and Wendler and Ezra."

Ferguson did not have the Yount case on the docket, but Chapman would quickly swing the debate in that direction.

First Chapman told Ferguson that the Lakin firm could not receive a fair trial in front of Weber because the firm sued Weber.

"I'm sure you remember the Paula Sims case which received some notoriety," Chapman said. "Don Weber and Charles Bosworth wrote a book, Precious Victims."

"They used as the cover on the book a photo of the mother and the children, and they used this without permission and that was the basis of the lawsuit," Chapman said.

"Was he sued as a lawyer or sued as an author?" Ferguson asked.

"Sued as an author," Chapman answered.

He said the suit was resolved 13 years ago. He said feelings created by a lawsuit do not go away in a short time or necessarily at any time.

Then he changed the subject. He said a motion to substitute Weber as of right was filed in the Yount case.

The Younts did not accuse Weber of bias. They moved for substitution without cause.

Everyone in Illinois gets one free shot to substitute a judge without cause.

Chapman said the motion should have taken 10 seconds, but Weber held two hearings and entered an order.

He read Weber's statement that plaintiff's attorney turned a negligence suit into a Machiavellian palace intrigue.

Hallway games

He read Weber's statement that plaintiff's attorney played hallway games.

At a hearing, Chapman said, Weber asked Maag if he was informed when he filed it that Weber was assigned.

Chapman read Maag's answer: "That is incorrect, your honor. When I filed this I did not know who was assigned to this case until I read it in the newspaper. I say that as an officer of this court."

Chapman said Weber wanted to keep the Yount case. He read at length from transcripts of Weber's second hearing.

"Judge Weber, as you will see in the course of reading the transcripts, is obviously irritated with Mr. Maag obtaining an order from Judge Crowder in this case because he said I was there and I should have signed it, blah blah blah, and this is judge shopping and it is horrible horrible horrible," said Chapman.

"Judge Weber, with the Lakin law firm in front of him, you know, just discounts everything that is said by the Lakin representative and just lambasts the whole procedure and goes so far as to certify the question," said Chapman.

Weber on March 8 certified to the Fifth District appeals court a question as to whether improper judge shopping could waive the right to substitution without cause.

Chapman told Ferguson that Weber's order implicitly said that the Lakin firm would lose the case in front of him.

Chapman said Weber made wild accusations about the Yount case in the Belleville News Democrat and the Alton Telegraph.

He said, "Judge Weber, you know – I'm holier than you, blah blah blah."

Next, Chapman brought up two more cases from off the docket. He accused Weber of setting traps in them with orders that speeded up trial dates.

If plaintiffs moved to continue, he said, Weber could deny the motions. Weber could then deny substitution because the right runs out when a judge makes a substantial ruling.

"That's what this order is for, to trap the Lakin law firm into the clutches of Judge Weber," said Chapman.

He said Weber stated in an affidavit that he forgot the suit over the book.

"Apparently when it was brought to his attention it came back with a vengeance," said Chapman.

He said everything Weber did suggested two things: "One, that he is personally prejudiced against the Lakin law firm and two, that he will do anything to keep the cases involving the Lakin law firm before him."

Presumption of unbias

Joseph Whyte, defense attorney in six of the 14 cases, said judges are presumed to be able to set bias aside.

He said that in the Yount case, Weber allowed the substitution motion.

Whyte said, "Despite what they describe as his obvious bias against the Lakin law firm, Judge Weber followed the law and ruled for the position espoused by the Lakin law firm on behalf of its client."

"What reason would Judge Weber have to be biased - because he was involved in a civil suit 13 years ago?" asked Whyte.

"The record reflects that he didn't have to pay the money," said Whyte.

"Sure, he wants to keep a case," Whyte said. "He was appointed by our Supreme Court to administer justice in this county and he hasn't had that opportunity because everybody has taken a change from him. He wants to do his job."

He said setting a trial does not necessarily show bias. He said he represents a defendant in one of the cases.

"When we saw that order we were kind of scrambling around ourselves a little bit," said Whyte.

Whyte said, "The only way that your honor can find that Judge Weber is biased against the Lakin law firm is to find Judge Weber is a liar. He says in his affidavit that he is not biased against the Lakin law firm."

Defense attorney Troy Bozarth said he would clarify things about the "big brouhaha" in the Yount case.

He said, "The problem with this being the evidence of bias is, Tom Maag is not an attorney at the Lakin law firm. He was in the past. He wasn't when this happened."

Chapman said, "The plaintiff law firm can complain in the Yount case because of the way it was handled, because of the type of order that was entered."

Then he unloaded:

"Judge, if an alien dropped out of the sky and took a look at the judicial poll and saw that Judge Weber got a 35 percent, the lowest rating in the history of the state, they might say, do I want to go in front of this judge?"

"The fact that there have been a lot of people taking a substitution of judge from Judge Weber is not too surprising," he said,.

"They say you have to call Judge Weber a liar," said Chapman. "Well if that is the case, so be it."

"If you had to take his affidavit as the gospel truth we wouldn't be here before you, Judge Ferguson.

"We would just let Judge Weber say, I don't have any prejudice against you. Come on. Come into my little parlor, said the spider."

Ferguson said he was not ready to rule.

Two days later, he was ready.

The order

"The Court finds that based upon the allegations in the motion and Judge Weber's affidavit the motion would fail quickly because the court would not rule that there is a per se showing of prejudice by merely showing prior litigation against the judge by these attorneys," Ferguson wrote.

He wrote that, "…since there were no outward acts by the Judge there would not have been shown any prejudicial type of acts."

In the Yount case, he wrote, Weber and the Lakin firm drew conclusions in black and white. He wrote that as in most things the answer was in a gray area.

"The actions of Judge Weber in the Yount case I believe are those of an inexperienced jurist dealing with issues and frustrations which were probably never faced before by a Judge in this circuit," he wrote.

He wrote that Weber's order "used cliches and catch phrases more intended for a press release or a novel…"

He wrote that Weber misinterpreted some areas of the law.

To Maag he granted grace. "This Judge does not believe that these motions or actions by attorney Maag constitute interference with the assignment process of the court," he wrote.

In a final flourish he wrote, "The one thing missed by those so ready to criticize the local courts is that the system has worked. The parties have had their day in court and a neutral Judge has heard the evidence and ruled."

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