Burkart and Napp lay out qualifications, discuss 'caps' in ICJL survey

Circuit judge candidates running in the Third Judicial Circuit for the vacancy created through the retirement of Judge Charles Romani have provided responses to an Illinois Civil Justice League (ICJL) survey.

The answers provided by Hamel attorney Thomas Burkart and Madison County Associate Judge Kyle Napp appear in their entirety below.

Thomas Burkart, Republican

ICJL: State the qualifications and experiences that make you qualified to serve on the bench in Illinois.

Burkart: Over 25 years of litigating cases throughout southern Illinois to protect people, their property and their rights. I will work tirelessly to timely resolve whatever docket I am assigned. More specifically, I have inventoried 23 high profile civil cases on my law office website as a sampling of my work (http://burkartlaw.com/our-victories.html). I represented clients as a special public defender in hundreds of cases over a four year period ranging from child neglect to attempted murder. I have recognized and corrected many errors of sitting judges (11 verifiable appellate cases on Westlaw and many others unpublished). I am on a first name basis with court personnel within the Third Circuit. Integrity, discipline, timely decisions, broad base of experience, unbiased judgment.

ICJL: One prominent Illinois judicial evaluation survey asks attorneys to evaluate candidates on Integrity, Impartiality, Legal Ability and Temperament. Critique yourself in these four areas as to how they make you qualified to serve on the bench.

Burkart: Impeccable integrity and impartiality. By way of example, the Madison County judiciary has come under some very critical press recently regarding campaign contributions from attorneys to judicial candidates. I pledged early on in my campaign that I would not accept, and if given, would return any contributions from attorneys and tort reformers. I do not want any attorney in my court to worry that they did not contribute to my campaign, or that their check was not enough because the other side may have contributed more. On the flip side, the parties the attorneys represent should not worry that their judge is predisposed to throw out their case because of donations from special interest groups which are heralded as the very reason judicial races are so expensive in the first place. My success as a litigator indicate I have the legal ability to be a great judge. I pray that I will always remain humble enough to recognize that I do not know it all.

ICJL: Describe the case in which you are most proud of your work as a lawyer.

Burkart: Fields v. Lake Hillcrest Corp. 335 Ill.App.3d 457(2002). A Homeowners association successfully defended its right to maintain a beach before the Glen Carbon Zoning Board when Pete & Gloria Fields (represented by Stephen Tillery) moved next to it. Tillery filed an administrative review. I faced difficult ethical issues when the president of the Association (the original developer) unilaterally terminated my representation when I advised him it was time to hold open election of officers. Eventually a new Board was formed and it re-retained my services in a last ditch effort to save the beach after the former president and his other attorney failed to appear at a hearing in which Judge Callis reversed the Zoning Board’s decision.

Judge Mallott refused to vacate the reversal and then threatened that if an appeal was filed on behalf of Lake Hillcrest, he would order me personally to pay sanctions in the form of attorney fees. Attorney Tillery threatened that he would seek fees if I filed an appeal. Undaunted, I filed the appeal anyway. Judge Mallot assessed $3,750 against me personally. Eventually, the appellate court reversed the award of fees as inappropriate and denied Tillery’s request for sanctions on appeal. I refused to allow a powerful plaintiff’s attorney and a judge from intimidating me into abandoning my client’s cause.

ICJL: Name one change you would make in the Illinois court system.

Burkart: What I would bring to the court, which I believe is missing at times, is more discipline. Attorneys for both sides should be prepared to prosecute and defend their case in a timely manner. My clients are constantly lamenting how long it takes to make progress on their case. I take very seriously section 12, Article I of the Illinois Constitution that every wrong should be remedied freely, completely and promptly.

ICJL: 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?

Burkart: One of the biggest reforms I would like to see is reduction in the influence of money in judicial campaigns. I agree that, at least in my area, judicial candidates are hand-picked by trial lawyers who make staggering donations to their campaign coffers. I realize, however, that there are constitutional limits that prevent legislative tinkering in this area. My experience in Madison County is that the voting public has no clue how the court system is structured or how it is influenced by what the Manhattan Institute for Policy Research has labeled the multi-billion dollar “Trial Lawyers, Inc. of Illinois.” It is my hope that armed with such knowledge, voters will ignore all the hype money can buy in judicial campaigns and focus on issues that detract from an impartial judiciary. Perhaps, with the advances in free social media, a “reform” in this area may be possible in my lifetime. Your last question obviously seeks comment on Best v. Taylor Machine Works and Lebron v. Gottlieb Memorial Hosp., the cases that struck down legislative attempts to place caps on non-economic damages. They are the law of Illinois, and as Circuit Court judge I am bound to follow them. I do not think a constitutional amendment should be sought that would take the determination of noneconomic damages out of the hands of a jury that must return a unanimous verdict.

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

Burkart: I believe the tools are in place that give the courts the ability to deter frivolous litigation. However, it has been my experience that judges are reluctant to utilize those tools. No one wants to place a chilling effect on access to the courts. I can understand, in part, the reluctance to enter sanctions under Rule 137 that applies to pleadings. However, in accordance with the mandatory language of Rule 219(b), a party should be held accountable when he requires the other party to prove facts he knows are true and which he has been asked to admit.

ICJL: 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?

Burkart: To the extent so ruled in Best and Lebron, referred to above, there are limits, but I do not believe there is a total preclusion. The worker’s compensation law sets statutory values measured in work weeks for particular injuries. I draw the distinction between compensatory (which encompasses both economic and noneconomic) versus punitive damages. On the issue of punitive damages, I like what Maryland has added to its jury instruction. It instructs a jury to award an amount that will deter similar conduct, but admonishes “but not designed to bankrupt or financially destroy a defendant.” There must be incentive for individuals and companies to guard against outrageous conduct, but driving a company or a sole proprietor out of business costs jobs, and there is no justification for such an economic toll when the civil justice goal of compensation has already been achieved.

Kyle Napp, Democrat

ICJL: State the qualifications and experiences that make you qualified to serve on the bench in Illinois.

Napp: It was my privilege to represent the People of the State of Illinois as an Assistant State’s Attorney for almost 14 years. I was lead trial counsel of the felony division prior to taking the bench in 2007. I successfully prosecuted dozens of complex criminal felony trials, including murder, aggravated kidnapping, predatory criminal sexual assault of a child, and aggravated robbery to name only a few. I saw the need to better protect child victims of abuse and consequently cofounded the Madison County Child Advocacy Center. I have served as an Associate Judge for 4 ½ years, presiding in multiple divisions and serving on a number of court committees. Every attorney, litigant, defendant and witness is ensured fair and impartial treatment in my courtroom.

ICJL: One prominent Illinois judicial evaluation survey asks attorneys to evaluate candidates on Integrity, Impartiality, Legal Ability and Temperament. Critique yourself in these four areas as to how they make you qualified to serve on the bench.

Napp: I was rated in the 2011 judicial advisory poll and received the highest rating, 95.93%, among all associate judges in my county. I received a 98% for integrity; 97% for legal ability; 95% for impartiality; 96% for temperament; 96% for sensitivity; and 97% for court management. As a judge, I have worked diligently to exhibit and maintain a high standard of excellence.

ICJL: Describe the case in which you are most proud of your work as a lawyer.

Napp: In 1977, a young woman was raped, murdered and stuffed into the trunk of her car. Illinois State Police investigated the case but were unable to find her killer. The case remained unsolved for over 25 years until DNA evidence taken at scene was ran through a computer database. Denise’s killer was located in Oklahoma. Herman Lamb was days away from being released from prison, having completed his sentence for yet another murder. The evidence and legal issues were complex; the policemen were retired and spread throughout the country; witnesses were deceased and memories faded. It was a long, hard fought trial, but in January 2003 there was finally justice for Denise. Herman Lamb was convicted of murder and sentenced to 300 years in the Illinois Department of Corrections.

ICJL: Name one change you would make in the Illinois court system.

Napp: I believe that truth in sentencing should apply to all violent crimes.

ICJL: 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?

Napp: As a prosecutor, I worked solely in the criminal division of the courts.

As an associate judge, I have presided in the family and criminal divisions. I am encouraged by the reforms requiring mandatory mediation and/or arbitration in certain family and civil litigation cases. I believe the enactment of reforms or changes in the civil justice system are within the province of the Supreme Court and the legislature.

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

Napp: There are Supreme Court Rules in place which, if enforced by the judiciary, can and do act as a deterrent to frivolous litigation and penalize those litigants and attorneys who pursue such claims. If further reforms are enacted by the legislature, I would follow and apply those laws. I also believe that appropriate jury verdicts can deter frivolous litigation.

ICJL: 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?

Napp: There are and there should be distinctions between punitive damages and other types of damages. It is the duty of the Illinois Supreme Court to interpret the Illinois Constitution and it is my duty as an associate or circuit judge to apply the law as interpreted by the Illinois Supreme Court. As a judge, I have never held a statute, ordinance violation or legislative enactment unconstitutional.