St. Clair County's judicial retention candidates answer questions

By Ann Knef | Sep 13, 2006

Judge Fiss

Judges running for retention in the 20th Judicial Circuit, Jan Fiss and Milton Wharton, recently provided insight on issues ranging from judicial independence to on-the-job challenges in the Illinois Civil Justice League's candidate questionnaire.

Wharton, 59, of East St. Louis, decried St. Clair County's "Judicial Hellhole #2" label, stating that it unfairly challenges the integrity of all judges in the circuit. He poignantly described the lynching of David Wyatt more than 100 years ago and how justice was never served in his case.

"It deeply concerns me that there would be extended an invitation to believe that I would be willing to compromise our justice system for any reason...," Wharton states.

Wharton is a 1974 graduate of DePaul University School of Law in Chicago. He served as an associate judge in St. Clair County from 1976 to 1988, and was elected circuit judge in 1988. Wharton, who presides over criminal felony cases, is seeking his fourth six-year term.

Fiss first served as an associate judge in 1979. He has served as a circuit judge since 1994 and was elected chief judge of the 20th Circuit in 2002. He received his juris doctorate degree from the University of Illinois and was in private practice for 10 years before becoming a St. Clair County judge.

The candidates' biographies and complete questionnaires can be found on the website,

Question: 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?

Fiss: Budgetary considerations are a constant problem especially when we have attempted to invoke reforms and innovations to improve our judiciary. To counter this we have had to be very resourceful.

Wharton: There has been much publicity concerning the designation of St. Clair County as "Judicial Hellhole #2." I believe that this anointing has made my job more difficult because it has called into question the integrity of all judges in the county.

Each day I come to work at the courthouse I am reminded that 100 years ago a black man, accused of a non-fatal attack on a white man, was forcibly taken from this locality by a mob, which included prominent citizens, and lynched.

Mr. David Wyatt's body was doused with coal oil and set ablaze. This most gross miscarriage of justice took place in broad daylight with the knowledge of county and city law enforcement and justice officials who refused to intervene. No one was ever charged or prosecuted, in spite of the fact that the perpetrators were well known.

I am equally mindful of the progress which has occurred since that fateful day, assisted to no small degree by the justice system. I take most seriously my duties and responsibilities as a judge.

I, with my family, make our home in the economically depressed city of East St. Louis. It deeply concerns me that there would be extended an invitation to believe that I would be willing to compromise our justice system for any reason, or the health and safety of my family and community, or the possible development of opportunities for our already at risk youth.

Question: 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?

Fiss: I believe a judge who only gives a one line or inadequate ruling on a matter that is deserving of more involvement is creating his own problem with a court of review. These courts often cite to this inadequacy and this could be the cause for a reversal. Certain Illinois statutes require judges to make specific findings.

I endeavor to orally, or in writing, to state a reason for any rulings for the benefit of the parties, the attorneys, the public and the reviewing court.

Wharton: An interested party has a right to know the findings of fact and conclusions of law on which a judge bases his or her ruling. In some instances a judge is required to announce findings. The Code of Criminal Procedure requires that an order or judgment granting or denying a motion to suppress evidence illegally seized be supported by findings of fact and conclusions of law.

In most cases I provide findings of fact and conclusions of law, either written or orally from the bench. In cases where it appears unnecessary, I inform the parties that findings and conclusions will be provided upon request. I have never, and would never, refuse a request by any interested party for a statement of the basis for any of my rulings.

Question: 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?

Fiss: As an associate judge, I started the Mandatory Arbitration Court. As chief judge I have started the Court Annexed Mediation Program, Drug Court and Juvenile Diversion Program, Redeploy Illinois, the Jury Call-In System, and am working towards a Mental Health Court in the near future.

The legislature is the primary source of reform legislation but the Court system itself enjoys extensive autonomy on how the Courts are run and what changes may be made. In St. Clair County we use innovative programs that assist litigants and thereby benefit the public.

Wharton: The Illinois Supreme Court and the Legislature has committees as does the Illinois State Bar Association, American Bar Association and other national and local bar groups which are vigorously exploring possible improvements to our justice system.

Our circuit has instituted many innovative practices and programs which have improved the civil justice system and conserved taxpayer funds, some of which have been adopted by other judicial circuits.

We should not confine ourselves to litigation and legislation. I believe that dialogue between concerned parties can assist in resolving or mitigating some problems. For example, while president of the St. Clair County Bar Association, I invited members of the medical profession to serve on bar committees which involve issues of concern to the medical profession.

Two doctors accepted my invitation and meaningful discussions occurred on contentious subjects such as the scheduling of doctors depositions which interfered with their schedules and doctors being joined in cases where any possible liability was remote.

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

Fiss: I believe the programs I stated in my resume and in the prior answer have directly or indirectly contributed to eliminating frivolous litigation. While frivolous litigation may never be entirely eliminated, I believe the 20th Circuit is well versed in reducing it now and in the future.

Wharton: The United States is diversely populated and includes relatives and descendants of antagonists involved in every conflict in our world. Each of our citizens is given the freedom, with narrow limitations, to say what they wish, to associate with whom they wish, to travel where they wish, and to have access to a weapon. Inherent in our society is an unlimited possibility for violent friction.

It is my belief that open access to the court system and orderly and fair dispute resolution is the safety valve which mitigates discord within our society.

The most effective means of discouraging frivolous litigation is the sound advice of attorneys. Lawyers routinely dissuade clients from filing lawsuits which will waste their and their clients' time and resources.

However, there is nothing reasonable that can be done to preemptively prevent a person from filing a frivolous lawsuit. There are many safeguards which prevent the progress of litigation without legal merit after being filed, such as motions to dismiss and motions for summary judgment.

The requirement of preliminary proof of validity in some cases, such as the requirement of a certificate of merit from a medical professional before a healing arts complaint may proceed, are effective at weeding out frivolous claims.

I also believe that an informed citizenry, reasonably knowledgeable of the possibilities and limitations of litigation, will be less likely to engage in frivolous litigation. In support of this consideration, I have initiated bar supported informational programs and make myself available to speak to interested groups.

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