Bailey
Byron
In a high profile Madison County divorce case, retired Madison County Circuit Judge Nicholas Byron returned to the courthouse and silently watched Associate Judge Duane Bailey put a hammer to big business.
At a June 12 hearing with Byron present, Bailey pinned a villain's label on household products maker S.C. Johnson and froze its lawyers out of proceedings they initiated.
Bailey sided with Tom Buske of Edwardsville, who faces criminal fraud charges and whose businesses owe S.C. Johnson about $200 million in a civil fraud judgment.
On an oral motion in divorce proceedings between Buske and wife Sara, Bailey dismissed a complaint from S.C. Johnson challenging the divorce as a sham.
Sara Buske petitioned for divorce in June 2008, eight days after a Wisconsin court entered judgment against Tom Buske, Buske Intermodal and Buske Lines.
Last Dec. 19, in their divorce proceedings, Bailey enjoined S.C. Johnson from trying to collect the judgment in Wisconsin or anywhere else.
This year he ruled against S.C. Johnson through a series of hearings that Byron's son, lawyer Christopher Byron, attended.
Transcripts identified Christopher Byron as counsel for Tom Buske, though at a hearing he identified himself as an observer for Buske's businesses.
Nick Byron himself appeared with his son at the June 12 hearing.
Bailey said, "Today we are going to talk about the issue of collusion."
He named the lawyers in front of him and said, "Former judge Nicholas Byron is also with us today."
Then he astounded S.C. Johnson's lawyers by denying them permission to talk about the collusion issue he had just said they would talk about.
Bailey no longer presides over the Buske divorce.
Appeals judges shredded his Dec. 19 injunction on June 18, and on June 30 Madison County Chief Judge Ann Callis reassigned him from family court to juvenile court.
Though Bailey appeared to rule in S.C. Johnson's favor by allowing it to intervene, he turned the intervention into a club and pounded S.C. Johnson with it.
At the hearing that produced the injunction he told lawyer Andrew Velloff, "S.C. Johnson decided, and with the agreement of both parties, to intervene in this case, subjecting you to the jurisdiction of this particular court.
"The court has not had an evidentiary hearing to make a determination if this divorce is fraud or not," he said.
"People get divorces for a number of reasons.
"With that in mind, there is not enough there for the court to say it's a sham."
Bailey placed assets of the Buskes in reserve and ordered Velloff not to transfer, sell, encumber, conceal, destroy or spend any property belonging to Tom Buske.
He said he would expect evidence proving grounds for divorce, "because the court is concerned that this is just a way of trying to circumvent S.C. Johnson."
He told Velloff, "You may not collect any money on judgment or action that is taking place in Wisconsin."
Bailey pounced on Velloff again at a March 27 hearing where S.C. Johnson sought discovery of assets.
Velloff said the judgment was a marital debt incurred during the course of the marriage.
Bailey said, "Who was the judgment actually against?"
Velloff said it was against Tom Buske, Buske Intermodal and Buske Lines.
Bailey said, "There was no judgment against Sara Buske herself?"
Velloff said, "There is no judgment against her for it but whether or not she participated in it, she certainly benefited from it.
"She lives in a house that was paid for in large part by those funds."
For Tom Buske, Vickie Cochran invoked Fifth Amendment protection from self incrimination and said, "He cannot provide documentation under oath.
"I don't believe a judge in a divorce case needs to have a third party coming in and making inquiries and asking questions about whether the divorce is fraudulent," Cochran said.
She said he might seek attorney fees from S.C. Johnson.
Velloff said, "They want to have a grounds hearing and we're not allowed to say anything about it. We're not allowed to find out anything about it.
"We're just supposed to sit on the sidelines, be bound by your orders, and watch as they go forward with the divorce," Velloff said.
"If we are going to be subject to this court, then we have a right to participate in the same fashion that they do.
"You can't take the Fifth Amendment and then transfer it to your wife."
Bailey granted S.C. Johnson discovery on finances but denied permission to depose Sara Buske about the validity of the proceedings.
At a May 15 hearing Bailey again raised Velloff's hopes by declaring, "The issues we are going to talk about, number one is going to be the issue of collusion."
Velloff said neither Tom nor Sara answered his collusion complaint.
He asked Bailey to grant default judgment or require answers.
For Sara Buske, Howard Feldman said the complaint wasn't verified.
Cochran said she treated it as a motion that didn't require a response.
Bailey said, "The complaint as alleged is insufficient because it wasn't verified."
He said he would set a hearing on S.C. Johnson's standing to allege collusion.
Velloff said, "I would request that we be allowed on the issue of collusion -"
Bailey said, "Mr. Velloff, I made my ruling on collusion for today."
He said they would move on temporary orders.
Tom Keefe, local counsel for S.C. Johnson, said the court indicated in March that there would be discovery on finances before proceeding to temporary orders.
Keefe said, "There has not been."
Bailey said, "That's what you are going to hear today, sir."
Sara Buske took the stand and answered questions from her lawyer and Tom's lawyer.
On cross examination, Velloff asked a question about 2003 and Feldman objected.
Bailey said, "Let me help you out, Mr. Velloff. All I want to hear about is the last two years."
Velloff said, "Offer of proof, your honor."
Bailey said, "Not right now. Do it later."
Velloff asked Sara Buske if it was reasonable to spend $3,000 a month on clothes.
She said, "That number is based on our life style over the last couple of years. That's what we would have spent."
Velloff said, "That life style over the past couple of years would have been since the scheme to defraud that occurred?"
Feldman objected and Bailey said, "Mr. Velloff, that will be enough of that."
Bailey said, "You ask questions about the affidavit. No further characterizations. Is that clear? Is that clear, Mr. Velloff?"
Velloff said it was clear.
He asked Sara Buske if she might have to cut personal expenses significantly.
Feldman objected and Bailey sustained.
Velloff said, "I believe the court was going – and I don't want to aggravate the court any further than I already have -"
Bailey said he appreciated that and before Velloff could say another word, Bailey began gently questioning Sara Buske.
When Velloff's turn came for recross examination, he asked if her expenses were all paid and current.
Bailey didn't wait for an objection. "Mr. Velloff, you are getting past my question now," he said.
Bailey released $50,000 to Feldman and $50,000 to Sara so she could hire counsel to represent her at Tom Buske's criminal trial.
Bailey's aggravation against S.C. Johnson doubled at the June 12 hearing with retired judge Byron in the room.
Velloff said he filed a verified complaint and neither Tom nor Sara moved to dismiss it.
He said, "I think the proper course of action at this point in time would be for discovery to be completed by -"
Bailey said, "Sir, are you going to talk about your complaint or are we just going to keep going around in circles?"
Bailey said, "There will be no discovery. Either you prosecute the complaint now or we will just move on. Now what will it be?"
Velloff said he wanted to make a record and Bailey told him to make a record.
Velloff said, "This divorce was filed for one purpose only, and that was to attempt to divert the assets otherwise subject to the judgment from Tom to Sara, and that hopefully, that would put those assets out of the reach of S.C. Johnson."
Feldman said S.C. Johnson's participation was limited to financial matters, particularly allocation and division of property.
"Johnson has no right and no standing to participate in any issues other than the financial issues," Feldman said.
"If the court would entertain a motion to dismiss, I will make an oral motion to dismiss," he said.
Keefe told Bailey he admonished Velloff to prosecute his complaint.
Keefe said, "I don't know what you mean by, prosecute your complaint."
"If you find there was not collusion, I don't know on what basis the evidence or the record is going to be that you found there hasn't," Keefe said.
"If you find that there is collusion, then I don't know. At that point does that then give us the right to participate in the grounds hearing?
"At that point how much discovery are we going to be able to put on to demonstrate that there is collusion?"
Bailey said, "All good questions. This is a perfect time to answer all those questions.
"I still, despite the great artsmanship of S.C. Johnson and the attorneys thereof, find that the complaint goes to the essence of the divorce.
"I believe quite strongly that nowhere did the state of Illinois intend for a corporate body to intervene in the essence of a marriage and not to intervene using the only mechanism that was available to them which would be the issue of collusion.
"With that in mind, with the motion by counsel, I am dismissing the complaint."
Velloff said, "Your honor I -"
Bailey said, "I am not through talking, sir."
Velloff apologized and Bailey said, "By dismissing the complaint there is no need for discovery and the arguments today should have been about the validity of S.C. Johnson being able to file that complaint and go forward."
He said, "Now I have determined that they don't have that validity."
He said he would adopt the complaint as a friend of the court brief.
Velloff said there were other counts in the complaint besides collusion.
Bailey said, "Ditto, sir, ditto."
On June 18 the Fifth District appeals court in Mount Vernon vacated the Dec. 19 injunction and found that no reasonable person would have acted as Bailey did.
The next day, Bailey began his last hearing on the divorce by excluding S.C. Johnson from participating.
He asked Velloff, "You are here to sit and relax?"
Velloff said he would make a preliminary objection and he was done for the day.
Bailey said, "Take good notes."
Sara testified again and Bailey gently questioned her again.
He said, "Mrs. Buske, why do you want a divorce?"
She said, "I believe that there has just been too much personal and emotional mental damage done.
"I am exhausted of his problems, of his compulsive behaviors."
Bailey asked what would happen if she didn't get a divorce.
She said, "I would probably leave anyway."
Bailey said, "I do find that there is a basis and grounds for divorce based upon extreme and repeated mental cruelty."
He said he wouldn't dissolve the marriage until he resolved custody and visitation.
On July 1 presiding family court judge Stephen Stobbs reassigned the case to Associate Judge Thomas Chapman, but Bailey hadn't finished with S.C. Johnson.
In a July 10 order he wrote that he "does not find a course of conduct which would lend itself for the court to believe that Thomas and Sara Buske had communicated and contrived to create a ground for divorce."
He set trial in October on division of assets and property between the Buskes.