MOUNT VERNON – In ten years when Fifth District appellate court candidates Michael McHaney and Barry Vaughan presided as circuit judges, the appellate court reversed McHaney 25 times and Vaughan nine times.
In three years prior to Vaughan’s appointment to the Fifth Circuit, appellate judges reversed McHaney eight times and didn’t reverse Vaughan at all.
Records of the reversals add flesh to bones of a confidential Illinois State Bar Association survey released last week that recommended Vaughan and didn’t recommend McHaney.
Ninety percent of lawyers found Vaughan met requirements of the office and 56 percent found McHaney didn’t.
On temperament they gave Vaughan 92 percent and McHaney 42.
Republican primary voters will choose between them on June 28.
Second Circuit voters elected Vaughan as a Republican in 2002, and retained him in 2008 and 2014.
They retained him again in 2020, but Vaughan accepted an appointment to replace Supreme Court winner David Overstreet for two years at the Fifth District.
Fourth Circuit voters elected McHaney without opposition in 2010, as a Democrat.
Voters retained him in 2016 with 74 percent approval.
He could have stood for retention this year but aimed higher, as a Republican.
Vaughan’s record through 2010 exists mostly on paper, but electronic information provides a complete record for both judges since then.
Analysis of their records at the Fifth District Appellate Court shows Vaughan improved and McHaney didn’t.
From 2011 through 2013, appellate judges reversed McHaney eight times and Vaughan six times.
From 2014 through 2020, appellate judges reversed McHaney 17 times and Vaughan three times.
Four of McHaney’s reversals and two of Vaughan’s reversals involved families.
Records on appeal: McHaney and Vaughan
In 2011, in a Jasper County case, appellate judges found McHaney improperly approved a son’s ownership of his late father’s bank accounts.
Farmer Clyde Mitchell opened the accounts, two at Ste. Marie State Bank in Ste. Marie and one at People’s State Bank in Newton. He also owned 48 shares of the bank in Newton and 26 certificates of deposit he needed to reissue.
In 2002, turning 90, he transferred the bank shares to son Edward. At Clyde’s instruction Edward added his name to half the certificates of deposit and added his brother Ken to half.
Edward added his name to Clyde’s bank accounts with right of survivorship.
Clyde died in 2003. Estate administrator Amy Hemrich, daughter of Edward’s late brother Homer, petitioned to recover the shares, certificates, and accounts.
McHaney denied the petition, finding Edward acted as fiduciary.
“Any presumption of fraud has been overcome by clear and convincing evidence that all of the disputed financial transactions were done at the direction of Clyde without undue influence and in good faith by Edward,” McHaney wrote.
Appellate judges found Edward obtained the bank shares and certificates properly, but not the bank accounts.
They found Clyde could have granted power over the accounts but didn’t.
They found Illinois law expressly limited an agent’s power with respect to gifts and the ability to change beneficiaries.
In 2012, in a Hamilton County case, appellate judges found Vaughan improperly terminated parental rights of father Vinus Duran.
Vinus and wife Charity dissolved their marriage in 2003, after police arrested him on charges of criminal sexual abuse and possession of child pornography.
A judge allowed him to visit his son only under state supervision.
He pleaded guilty on both charges in 2005, and spent two years in prison.
He moved for regular visitation in 2008, claiming he successfully completed sex offender treatment. His former wife, as Charity Dunham, moved to terminate his rights in 2009.
In 2010, she and her husband filed an action for adoption.
Vaughan granted termination, finding Duran had minimal contact with his son and didn’t schedule supervised visits as the dissolution order provided.
Duran claimed on appeal that a termination proceeding must be brought under the Juvenile Court Act or the Adoption Act.
Appellate judges agreed, finding the adoption proceeding was the proper cause of action in which to move for termination.
Justice Richard Goldenhersh wrote, “Courts sitting in dissolution proceedings do not possess the authority to terminate parental rights.”
Also in 2012, in a Jefferson County divorce, appellate judges found Vaughan improperly divided property between George Edwards and Penny Attaway.
Vaughan accepted George’s claim that although Penny spent $200,000 on the marital home, she increased its value by only $66,000.
Vaughan found her expenditures on the home allowed her to spend money George could never recover.
Appellate judges found the expenditures should figure into the home value.
Vaughan found Penny dissipated funds on clothes, jet ski, four wheeler, horse trailer, tiller, dirt bike, and $635 a month to lease a pickup truck.
Appellate judges found they were useful and enjoyable possessions consistent with the family’s previous standard of living.
Vaughan found Penny dissipated funds from investment and retirement accounts.
Appellate judges found the expenditures were for living and household expenses for her and the children.
Although Vaughan mostly ruled against Penny, he denied George’s motion for her to pay his legal fees.
He found George placed ads in newspapers against his retention. He found it difficult to accept that George lacked funds to pay his attorney while he made a large purchase of ads in 12 counties.
Appellate judges found his statement might have showed bias, and they remanded the case with directions to assign another judge.
Also in 2012, in a Marion County case, appellate judges found McHaney improperly found mother Julia F. unfit.
McHaney granted temporary custody of daughter S.L. to the state in 2007, and made her a ward of the court with the state as guardian in 2008.
In 2011, the state petitioned to terminate Julia’s parental rights.
At a hearing in 2012, an expert said tests determined her IQ was 74. A witness said her home was small and unclean, with rodents and roaches.
Julia said she preferred not to take psychotropic medication but she’d take it because getting S.L. back was all that mattered.
McHaney found the state proved she met the definition of unfit.
On appeal, Julia argued that the state didn’t provide notice specifying the nine months it would rely on to prove unfitness.
The state conceded the point but claimed she should have raised it at the hearing.
Appellate judges found McHaney compounded the state’s error.
Justice Bruce Stewart wrote, “In a case such as this, where there were several possible nine month periods from which the state could seek to prove unfitness, the advance notification is crucial.”
Stewart wrote that unless a parent knew before a hearing which period the state relied on, the parent’s defense was seriously impaired.
He wrote that at the time of the hearing Julia demonstrated every element of the stability the state’s expert found essential.
“The court is not free to reject or expand its statutory authority despite its desire or perceived need to do so,” he wrote.
In 2014, in a Marion County case, appellate judges found McHaney improperly awarded father Jeffrey Wehking custody of daughter L.W.
McHaney dissolved the marriage of Wehking and Lindsay Haake in 2009, and approved alternation of custody every two days.
Haake remarried, moved to Forsyth, and petitioned for sole custody in 2013.
Wehking petitioned for primary custody, to enroll L.W. in school in Centralia.
McHaney ruled for Wehking on the basis of stability and community support.
Appellate judges ruled that Wehking’s uncertainty with regard to employment and location, compared with Forsyth, belied McHaney’s finding of stability.
Justice Judy Cates wrote, “It would appear that the only things that have not yet changed in father’s life are the house in which he lives and the family members who live nearby, some of whom he rarely sees or visits.”
She found McHaney belittled Haake for raising issues of violence and he trivialized Wehking’s violence, abuse, and poor judgment.
In 2015, in a Marion County divorce, appellate judges found McHaney committed a string of errors in favor of investment adviser Bernard Johnson.
Bernard and former wife Julie once held a party at their home so his clients could contribute to a campaign of Congressman John Shimkus.
Appellate judges found fault with McHaney’s division of their property and with his award of maintenance to Julie at $2,750 a month for 30 months.
They found he should have awarded permanent maintenance in an amount sufficient to maintain the lifestyle she enjoyed during the marriage.
Justice Stewart wrote that Bernard would be able to maintain that lifestyle even if he paid Julie a reasonable permanent maintenance.
“Julie’s present and future earning capacity has been substantially impaired due to her devoting time to domestic duties and having foregone education, training, employment, and career opportunities due to the marriage,” he wrote.
He wrote that she’d have to sell assets to purchase a home.
He wrote that McHaney valued the good will of Bernard’s business at $196,250 when it had about $75 million in assets under management.
He wrote that Bernard purchased accounts with $35 million in assets for $366,255 a year earlier.
He wrote that McHaney awarded Bernard the marital home with negative equity.
“Had the trial court properly valued the marital home and the debt thereon, it would have increased the net assets to Bernard significantly,” Stewart wrote.
He wrote that McHaney’s valuation of an oil lease at $29,612 and his award of gold and silver coins to Bernard at no value were against the weight of the evidence.
He finished by finding McHaney abused his discretion when he denied a motion for Bernard to pay fees of Julie’s counsel Larry LeFevre of Vandalia.
McHaney found LeFevre’s conduct didn’t result in a benefit to Julie.
He found LeFevre engaged in harassment, delay, and needless cost increases.
He found zealous advocacy was one thing and this was something else entirely.
Appellate judges remanded with direction to consider all statutory factors in deciding whether to award Julie’s fees.
Comparisons of McHaney and Vaughan in criminal and civil cases will follow.