10 June 04 Bar News

"Clearly, if you took into account all of the groups there and factored in all of their concerns, this doesn't reflect the concerns at least of our caucus. So you certainly have to question the motive of those meetings."

Rep. Thomas Cross (R-Oswego) on medical malpractice legislation that resulted from negotiations involving lawyers, doctors, insurers and others. The bill, which was unsuccessful, did not include caps on damages

By Stephen Anderson

Editor

Read the instructions

It's the same old game: paper, scissors and rock. The legislature produces the paper. The governor takes scissors to the paper. And the Supreme Court smacks the scissors with a rock from the constitutional foundation.

The court did not "give itself a raise," as some mischievous headline writers labeled the otherwise balanced coverage of the ruling on cost-of-living increases. The scarcity of editorial outrage leads one to believe that the lords of the media actually read, and understood, Justice Phil Rarick's well-crafted opinion.

The issues are as clear-cut and as constant as the constellations. Nothing implicit lurks between the lines of Jorgensen et al. v. Blagojevich et al. Yet one misled citizen wrote to an editor that if it's constitutional for judges to raise their own salaries, we need to change the constitution. Change the constitution?

The community lawyer, as gatekeeper at the halls of justice and role model for the professions, should assimilate the essentials of this opinion and apply them, perhaps on small cue cards, for the purpose of impromptu explication.

Aside from the parliamentary and gubernatorial machinations that generated the litigation, and are put in proper perspective by Justice Rarick, the primary principle on which his finding is based lies at the heart of the separation of powers doctrine.

As Rarick quotes from Alexander Hamilton in The Federalist (No. 78), "The executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated.

"The judiciary, on the contrary, has no influence over either the sword or the purse; no direction of either of the strength or of the wealth of the society; and can take no active resolution whatever."

Hamilton calls the judiciary "beyond comparison the weakest of the three departments of power," and suggests "that all possible care is requisite to enable it to defend itself against their attacks."

Citing several cases, as well as the state and federal constitutions, Rarick points out: "One of the principal means by which the founding fathers sought to protect the judiciary was by denying to the other branches of government the power to diminish judicial compensation."

Further, in refutation of the governor's argument, when the Compensation Review Act was enacted and its subsequent Review Board reports adopted by the General Assembly, cost-of-living adjustments have been "a fully vested component of judicial salaries since 1990."

In summary, Rarick sees the independence of the judiciary in serious jeopardy if a governor could "withhold judicial salaries in violation of the constitution," or deny maintenance expenses that are mandated by law.

Most of the reporters jumped gleefully on his notion that "Today the governor may decide judges are paid too much. Tomorrow he may decide there are too many judges. Eventually he may decide the state would be better off without judges at all."

Early in his ruling, Rarick noted that no provision exists in Illinois law for "temporary alternative jurists to sit in our place" to avoid a conflict of pecuniary interest. "Were we to recuse ourselves, the parties would therefore be left without a forum in which to review the circuit court's judgment," he wrote.

Change the constitution? Perhaps the justice opened a window of opportunity for a future legislature to consider covering that judicial rock with remedial paper. For today, though, Article III, Section 1 remains sacrosanct.

For more than two centuries, our scheme of checks and balances has managed to keep any of the three coordinate branches of government from controlling or coercing another. The Constitution has fulfilled the promise of the Declaration of Independence we will soon celebrate.

He called 'em as he saw 'em

Shortly after the death of Prentice Marshall, while culling a thick file of his memorable vitae, we found a suprajudicial ruling on a long-forgotten matter of trivial pursuit. He wrote on August 6, 1985:

"Dear Steve: Bases loaded, no outs, batter hits a line drive into the gap in right center. Center fielder catches the ball on the fly, throws to second to double that runner and back to first to triple that runner. The runner on third tagged up and scored before the third out at first. Therefore the run counts. However he left third too soon and an appeal is taken, third base is touched. He is declared out. Ergo, four outs on a single play. Regards, Pren"

Before whatever higher court he now appears, we are certain that such succinct and erudite judgment will never be remanded. Ave atque vale!

Neville fills appellate seat

Cook County Judge P. Scott Neville Jr. has been appointed to the Illinois Appellate Court in the wake of Neil F. Hartigan's resignation June 1. Effective June 11, Justice Ellis E. Reid was named to the Hartigan vacancy, and Neville to the Reid seat.

A 1973 graduate of the Washington University School of Law and a past president of the Cook County Bar Association, Neville was appointed to the circuit court in 1999 and elected in 2000. He sat in the 1st Municipal District Civil Trial Section.

A former member of the ISBA Committee on Judicial Evaluations, Neville helped form the Alliance of Bar Associations for Judicial Screening. He also served on the Committee on Minority and Women Participation.

19th Circuit vacancies

Associate judge vacancies have occurred in the 19th Circuit due to the retirement of Thomas F. Baker in April and the death of Thomas R. Smoker on May 10 (see Epilogue, page 37).

Applicants have until 5 p.m. Wednesday, June 23, to submit two original applications to Cynthia Y. Cobbs, director of the Administrative Office of the Illinois Courts, 840 S. Spring St., Springfield, Ill. 62704.

Application forms may be accessed at www.state.il.us/court. They may not be submitted by e-mail or facsimile.

Federal bar fee raised

The general registration fee for candidates for admission to practice in federal courts of the Northern District of Illinois in Chicago and Rockford was increased June 1 from $100 to $150.

The increase resulted from a March 16 amendment by the Judicial Conference of the U.S. to the District Court Miscellaneous Fee Schedule that raised its share of the registration fee from $50 to $150.

As a result, the executive committee of the Northern District voted to discontinue its previous $50 share. Other fees, such as $50 for federal trial bar admission, are unchanged. See www.ilnd.uscourts.gov for clarification.

Prosecutor to retire

David D. Koski, first deputy Winnebago County state's attorney, will retire Aug. 8, his 60th birthday, after 32 years as a prosecutor.

ISBA Assembly member Charles J. Prorok will be promoted from deputy state's attorney to first deputy. A past president of the Winnebago County Bar Association, Prorok serves on the ISBA Local Government Law Section Council.

Assistant deputies Mark Thomas Karner and Margie M. O'Connor will move up to deputy state's attorneys, along with Gary L. Kovanda, who replaces Prorok. Michelle R. Rock and Thomas A. Wartowski will become administrative assistant state's attorneys.

DuPage office moves

The offices of DuPage County state's attorney relocated last month to the new 18th Circuit Courthouse Annex at 503 N. County Far Road, Wheaton. The telephone number has been changed to (630) 407-8000.

Evidence rules conference set July 14 at UCC

The Law Bulletin Publishing Co. and Thomson West are co-sponsors of an Illinois Evidence Conference that will take place from 8:30 to 11:30 a.m. Wednesday, July 14, on the second floor of the University Club of Chicago.

The comprehensive review of changes in the rules of evidence will be conducted by two faculty members of The John Marshall Law School. They are John E. Corkery, associate dean for academic affairs, and Prof. Ralph Ruebner authors of Illinois Civil and Criminal Evidence and Illinois Criminal Trial Evidence.

Corkery serves on the ISBA Committee on Professional Conduct, the Committee on Legal Education, Admission and Competence, and the Joint ISBA-CBA Committee on Ethics 2000.

Breakfast, registration and materials pickup will begin at 8 a.m. To register, call (312) 644-2804.

Bridges over Barriers

"Breaking Barriers, Building Bridges," a conference planned to create synergies among women and minority lawyers, will be conducted from 8:30 a.m. to 5:30 p.m. Friday, July 16, at the Chicago Bar Association.

A full schedule of workshops is scheduled to disseminate information on the law and legal profession, and to call attention to the achievements and viewpoints of minority attorneys.

Workshop topics include rainmaking and emplire building, getting and keeping corporate clients, building effective alliances on diversity issues, trial techniques, and balancing personal and professional life.

The keynote speaker is Prof. Jack Greenberg of the Columbia University Law School. A former member of the NAACP Legal Defense and Education Fund, he was one of the attorneys who appeared before the U.S. Supreme Court in the Brown v. Board of Education case.

For more information or to register, request a conference brochure by e-mail to cle@chicagobar.org.

by Gertrude Block

Q:Two words that I often see used incorrectly are hopefully and enormity. Both words are old, but have recently been given a new meaning. I am also concerned about the use of the word none as a plural. Please comment.

A: These questions have been previously asked by readers, but not as far as I recall by readers of the Bar News. The reader who asked the questions is right in assuming that both hopefully and enormity have been used for a long time. But hopefully has expanded in meaning. Traditionally, hopefully was a verb-modifier, expressing the feelings of the subject of the sentence, as in,"I looked hopefully at the sky."

Now, however, hopefully is often a sentence-modifier, describing a general wish, not the feelings of the person who expressed it. Now it usually means, "It is to be hoped," not "I hope." The new meaning has almost eliminated the old meaning, but when it first became widespread some years ago, it met considerable hostility. The media reported that one person posted a sign at the entrance to her house, reading, "Abandon 'hopefully' all ye who enter here" (a parody of Dante's sign above the entrance to Hell.)

However, widespread acceptance of meaning trumps grammar, so we will have to live with hopefully (and hopefully get used to it.) Considering that it parallels the use of the adverb happily, long accepted as a sentence modifier, as in, "Happily, I didn't break my leg in the fall," that may not be so hard.

Only a few readers have commented on the expanded meaning of the noun enormity, which probably occurred due to our natural tendency toward hyperbole. It became noticeable long enough ago to have been listed in the fourth edition of my legal writing book (in 1988). At least since then, people have used it instead of the correct word, enormousness, to describe something of unusually large size. That is not the traditional or the currently proper word to describe merely extreme size. The word enormity describes something excessively evil, sometimes also large, but not always. It describes morally outrageous conduct, such as we've been reading about recently in the murder and subsequent mutilation of four civilians in Iraq: behavior that is considered beyond moral bounds.

The problem with the relatively new use of enormity to describe something despicable, but much less shocking and outrageous, is that it weakens the force of the word. This also seems to be occurring with the word terrorize, which used to connote overpowering fear, coercion, or intimidation, and was usually applied to groups of victims. The word terrify connoted a severe but short-lived fright, and usually to the feelings of a smaller number of victims. Now that the press uses terrorize to describe behavior that terrifies one or two individuals, the import of terrorize may be weakened.

About the word none, the reader says that he spends hours correcting his associates about it and the other two words he cited. However, as far as none is concerned, he has wasted his time. It's true that the pronoun none was at first a singular form. It came into Old English as ne an, "not one." But over the centuries it has evolved so that it now can mean "not any," or "no part" ("It's none of his business."). Or it can mean "not at all" ("I was none too pleased.")

The use of none as a plural was approved as early as 1926 even by the foremost conservative grammarian, H.W. Fowler, in his book Modern English Usage. Fowler writes, "It is a mistake to suppose that the pronoun is singular only and must at all costs be followed by singular verbs; the OED explicitly states that [the] plural construction is commoner."

Q: How about the construction, "He does not move nor speak." In general, when do you use nor instead of or?

A: The questions discussed above have been asked previously, but this is a brand-new one. The reader, thinking he might be wrong to ask it, declined to have his name mentioned; had he known he would be appreciated for his observation, he might have been less reluctant.