In pre-dawn order, Herndon rips lawyer for veterans commissioner in suit against current and former officials

By Record News | Jul 17, 2018

EAST ST. LOUIS – At 4:03 a.m. on July 12, U.S. District Judge David Herndon posted an order ripping lawyer Tom Burkart and canceling a July 23 trial date for Burkart’s client, Madison County Veteran Assistance Commissioner Brad Lavite. 

Herndon waived a deadline so the defendants, current and former county officials, can move for summary judgment. 

“Plaintiff’s counsel has, throughout this litigation, employed a complete lack of civility, a tactic rejected by the Seventh Circuit and the Illinois State Bar Association,” Herndon wrote. 

“His actions have been obstructive and at times contumacious.” 

Contumacious can mean rebellious, perverse or stubbornly disobedient. 

Lavite claims former board chairman Alan Dunstan, former administrator Joseph Parente, State’s Attorney Tom Gibbons, and Sheriff John Lakin violated his rights when they banned him from the administration building. 

As far as the case docket shows, Herndon’s order struck as a bolt from the blue. 

He issued no prior criticism or warning about Burkart’s conduct. 

He held his first hearing this May, and the minutes reflect no fireworks. 

The court clerk hasn’t released the transcript. 

Magistrate Judge Reona Daly held a hearing for six hours on three days last winter without any clashes over conduct. 

Defendants didn’t complain until this June 19, when they alleged that Burkart contacted county information technology director Rob Dorman. 

They branded it as improper communication with a defendant. 

On June 27, Daly held a settlement conference that produced no settlement. 

On June 28, defendants moved for leave to file a dispositive motion out of time. 

County counsel Christi Swick wrote that at the conference, defendants learned that the parties agreed on most of the material facts. 

She wrote that only questions of law remain as to application of the facts. 

Burkart opposed the motion on Monday, July 9, writing that defendants didn’t identify what they learned that led them to conclude that the parties agreed. 

“Matters learned at a settlement conference are not admissible,” Burkart wrote. 

Thursday, before dawn, Herndon canceled trial and set an Aug. 10 deadline for a summary judgment motion. 

“It is not surprising that defendants only just learned about the extent of undisputed facts,” he wrote. 

He wrote that the court has discretion to extend time to file a motion where failure was due to excusable neglect. 

“In evaluating whether a party’s omission constitutes excusable neglect, the court must balance all relevant circumstances,” he wrote. 

He wrote that relevant circumstances include the danger of prejudice, the length of a delay, the reasons for a delay, and whether a movant acted in good faith. 

“So if there is to be blame placed for this late discovery of undiputed (sic) facts and, as a consequence, the delay in this case relative to the seemingly untimely filing of the subject motions is due to the plaintiffs’ counsel obstructive actions,” he wrote. 

As of July 16, Herndon had not ruled on a defense motion to disqualify Burkart.    

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Madison County Madison County Veterans Assistance Commission U.S. District Court for the Southern District of Illinois

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