Republican candidate for a permanent seat on the Fifth District Appellate Court, Justice David Overstreet, steers clear of addressing "trigger" issues for the trial bar - "frivolous" litigation and "caps" on damages - in questions posed by the Illinois Civil Justice League.
"Any civil litigation reforms would ideally originate from the legislature as it is the legislature’s province to enact laws," Overstreet wrote in response to an ICJL questionnaire available to all judicial candidates in the state. "The Supreme Court has the province to interpret the laws and the Constitution, but it also has the power to set forth rules for our court system. To the extent legislation which attempts civil litigation reforms is deemed unconstitutional by the Supreme Court, then Constitutional amendment would certainly be the mechanism to enact those reforms."
Overstreet, 52, from Mt. Vernon, faces attorney Kevin Hoerner, 56, of Belleville in the Nov. 6 general election. Hoerner, a Democrat, did not respond to the ICJL questionnaire.
On the question of whether the state judicial system adequately deters and penalizes frivolous litigation, Overstreet wrote that in his experience as a circuit judge - prior to his special appointment to the Fifth District - "our judicial system adequately deters and penalizes frivolous litigation.
"While it is true that there is a cost to any defendant to defend against claims which may ultimately be dismissed by the court through motion practice or denied by a jury after trial, such findings that a claim has not been proven or is without merit does not in and of itself mean that a claim is frivolous. In my experience, Supreme Court Rule 137 adequately addresses frivolous litigation."
On the question of whether the Illinois Constitution precludes legislative establishment of limitations on civil damages - and are there or should there be distinctions among economic, non-economic and punitive damages, Overstreet responded:
"I believe it would be improper for me to state an opinion as to whether or not the Illinois Constitution precludes legislative establishment of limitations on civil damages, as that is an issue that I may be called to rule upon in a future case. Certainly there are distinctions among economic, non-economic, and punitive damages under current Illinois law."
Increasing use of Skype-like technology for routine, non-evidentiary matters such as status hearings or case management conferences is one area Overstreet said he would favor changing in the Illinois court system.
"The increased use of these technologies should reduce costs and fees and unnecessary time spent traveling to and from our courts," Overstreet wrote.
Before his appointment by the Illinois Supreme Court to the Fifth District in February 2017 - upon recommendation of Chief Justice Lloyd Karmeier - Overstreet served as an at large circuit judge in the Second Judicial Circuit from 2007 up until his appointment to the appellate court. Prior to serving as judge, he was in private practice for 16 years.
The candidates seek to fill a vacancy being created upon the retirement of Justice Richard Goldenhersh, 74, of Belleville, a Democrat.
Both Overstreet and Hoerner, who have been on the campaign trail for months in a sprawling district that includes the state's 37 southern-most counties, have mainly focused on their records and endorsements. No sign yet of negative or attack ad campaigning.
However, a campaign committee that formed in September to "support candidates" in the Fifth District - "Fair Judicial Alliance" - is funded by plaintiff lawyers who have contributed to Hoerner's campaign committee. The group has spent half of the $50,000 raised on polling, as well as research and analysis.
The balance of the Fifth District Appellate Court is currently 4-3, Republican to Democrat.
If Overstreet is elected it would solidify its conservative leaning, as Karmeier would likely choose a Republican to fill the spot that Overstreet currently occupies.