Associate Judge J. Marc Kelly of the Fourth Judicial Circuit Court in Fayette County was selected to preside over a class action suit alleging former Madison County treasurer Fred Bathon and several tax buyers participated in a bid rigging scheme.

Kelly replaces Associate Judge William Becker, who presided over the case by special assignment as a visiting judge from Clinton County.

Madison County Chief Judge David Hylla assigned Kelly to the case on April 19.

Kelly was first appointed to the bench in February 2011. He was reappointed in July 2015. His current term expires on June 30, 2019.

Prior to his appointment, Kelly worked as an attorney with Burnside, Johnston, Sheafor & Kelly PC in Vandalia.

In their complaint, the plaintiffs claim Bathon arranged for tax buyers to charge interest at the maximum legal limit of 18 percent at auctions of delinquent property taxes from 2005 to 2008.

Bathon served a sentence after pleading guilty of antitrust violations in 2013.

Tax buyers Scott McLean, Barrett Rochman and John Vassen also served sentences.

Former U.S. attorney Stephen Wigginton did not seek restitution for property owners, finding individual calculation of damages would be impracticable. He also prosecuted Bathon and the tax buyers.

Property owners later filed three suits proposing class actions against Bathon and tax buyers in Madison County circuit court. They were later consolidated.

Defendants in the action opposed class certification, arguing that individual calculations weren’t practical.

Becker granted class certification, concluding that he could reach an appropriate method to calculate damages.

The tax buyers, Madison County, and auctioneer James Foley petitioned the Fifth District appellate court for interlocutory review, which was denied.

The Illinois Supreme Court later directed the Fifth District to hear their appeal.

The appellate court concluded that Becker did not abuse his discretion by certifying the class action.

“Although we recognize that four of the defendants pleaded guilty to the conspiracy in federal court, the determination of whether the remaining defendants, including Foley, were involved in the unlawful behavior is still at issue in the case,” Justice Thomas Welch wrote.

“Foley claims that he was not the auctioneer at the tax sale who picked the winning bids and that he was not even present at the 2008 tax sale.

“Antitrust conspiracies often have to be proven from inferences drawn from the circumstantial evidence.

“All class members will rely on the same discovery, same witnesses, and other evidence to prove the existence of the conspiracy, whether the remaining defendants were part of the alleged conspiracy, and a causal connection between the conspiracy and any injury.”

Welch rejected a defense argument that statutes of limitation precluded the claims.

“Although we recognize that this is an issue that will need to be determined, commonality is not destroyed where class members may be affected differently by the applicability of the statute of limitations,” Welch wrote.

However, the appellate court also held that while Becker did not abuse his discretion by certifying the class action, he did abuse his discretion by not limiting it to liability.

The appellate court also excused Madison County and Madison County Board Chairman Kurt Prenzler from the proceedings.

Welch wrote that nothing in statutory language allows a delinquent property tax owner to bring a statutory sale in error cause of action against the county.

On March 31, Becker entered an order dismissing with prejudice count II of the second amended complaint for Madison County and count VIII pursuant to the appellate court’s direction.

During the hearing, Becker scheduled the case for trial for Jan. 8, 2018. The plaintiffs sought the trial setting and the defendants objected.

Becker also anticipated that a new trial judge would be assigned to the case.

Madison County Circuit Court case number 13-L-276

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