The Challenge
November 2002 VOL. 13, NO. 2
Statements or expressions of opinion or comments appearing herein are those of the editors or contributors, and not necessarily those of the association or section.
Contents
* Profiles: Justice Sue E. Myerscough
* Profiles: Justice Rita B. Garman
* Justice Mary Ann G. McMorrow becomes the First Female Chief Justice of the Illinois Supreme Court
As all of you know, this Committee sponsors the luncheon held during the Mid-Year meeting in December. The luncheon this time will be held on Thursday December 12, 2002 and we expect a record number of attendees. We are thrilled to be able to present three wonderful speakers for the luncheon, our Supreme Court Justice Mary Ann McMorrow, as well as rival candidates Justice Sue Myerscough and Justice Rita Garman. The latter two will have found out the winner of their race prior to the luncheon, but have both agreed to speak about their own experiences and struggles as women in the legal profession.
This issue of the Challenge features short biographies on all of our speakers, as further incentive to mark your calendars and purchase your tickets to this luncheon. Please contact Richard Porter, Chair of the Luncheon Committee, with any questions about the luncheon you may have and we hope you can join us on the 12th!
Yvonne Kato
Co-Editor
Profiles: Justice Sue E. Myerscough
Justice Myerscough has been tightly connected to the State and people of Illinois for many years. She spent her youth in our capital and traveled to Carbondale, where she earned her B.A. with Honors in English and French from Southern Illinois University. Before proceeding to law school at Southern Illinois, she studied Comparative Literature and English at The University of Chicago and Southern Illinois at a graduate level. After law school, she clerked for the Honorable Judge Harold Baker, with the U.S. District Court.
Moving home to Springfield after her clerkship, she turned to private practice with Giffin & Winning and then Hinshaw & Culbertson. She began her judicial career in 1987 with an appointment to an Associate Judge position, being elected to a Circuit Judge post in 1990. Beginning in 1994, she served as the presiding Judge in Sangamon County and then Chief Judge of the Seventh Judicial Circuit from 1996 to 1998. Thereafter, she was elected to the Fourth District Appellate Court and is currently running for the Illinois Supreme Court.
Justice Myerscough has never given up her close ties to education, and serves as an adjunct professor at Southern Illinois University in the area of Medical Humanities and also regularly teaches law in the state school system. She also gives frequent lectures in the areas of trial advocacy and evidentiary topics. One of her most well-known contributions to education within the court system was her implementation of Law Related Education within the Juvenile Probation and Court Services Department. She secured a grant to implement programming within the Department that gave juvenile offenders a 12-week course and a diploma upon completion, which resulted in a 92 percent graduation rate for the Seventh Judicial Circuit! The program was the first of its kind for any Circuit.
Her commitment to the youth of Illinois does not stop there. She also helped to secure a $1.74 million grant for construction of a new Juvenile Detention Center and fought to ensure that this building would include a staff-secure component. Justice Myerscough was intimately involved in developing the screening criteria for admissions to the new center and worked on various issues related to the problem of overcrowding within the system, which included utilizing electronic monitoring for home-bound juveniles.
Justice Myerscough is no stranger to honors and awards, having received the "Hillary Rodham Clinton Leadership Award" from the Illinois Democratic Women this year. 2002 also brought her the honor of the Athena Award from the Greater Springfield Chamber of Commerce. The prior year, she was the recipient of the YWCA's "Women in Excellence Award," recognizing her numerous contributions to society, both personally and professionally.
Justice Myerscough is married to L. Robert Mueller, an attorney at the Springfield firm of Livingstone, Mueller, O'Brien & Davlin and has two daughters. We are pleased that she has accepted our invitation to speak at the Mid-Year luncheon and know that she will serve as inspiration to all our attendees to get involved in our profession and communities as she has done.
Profiles: Justice Rita B. Garman
Justice Garman started her path to distinction early on, graduating as class valedictorian from Oswego High School. She went on to receive highest honors in Economics at the University of Illinois and distinction at the University of Iowa College of Law. She began the practice of law back in her home state of Illinois in 1968 and steadily rose to her current position on the Supreme Court bench, where she has sat since 2001, filling the vacancy created by Justice Ben Miller.
The road to this position was paved by Justice Garman breaking down barriers and refusing to be confined by any glass ceiling. In 1974 she became the first woman selected to serve as a Judge in the Fifth Judicial Circuit. She stayed in that position for 12 years before being elected to a Circuit Judge position in the same circuit, and only one year later, being appointed Presiding Judge. In 1995, she was assigned to the Fourth District Appellate Court and elected into the position in 1996 where she served until her appointment to the Illinois Supreme Court.
Throughout her career, Justice Garman has consistently been recognized for her contributions to the Community and to women in particular. She certainly serves as a role model to any young women wondering what opportunities are open to them in Illinois, and was given the "Woman of the Year" Award by Business and Professional Women in 1988 and 1999. Her other awards and honors include the AAUW Woman of Distinction, The Athena Award, The University of Illinois Comeback Alumni Award and the "Paul Harris Fellowship" from the Danville Roatary Club, to name only a few.
Her judicial skill has also been recognized and lauded, being rated as "highly recommended" by the Illinois State Bar Association Judicial Evaluation Committee just this year in relation to her current race for the Supreme Court. She has shared these skills by serving on various committees and conferences including the Subcommittee on Judicial Education and Chairing the Illinois Judicial Conference Education Committee.
Justice Garman also has an accomplished family, including her husband, Gill Garman, an attorney with her former firm of Sebat, Swanson, Banks, Garman & Townsley, and two children, both college graduates, Sara and Andrew. We are pleased to have Justice Garman as a speaker at our luncheon on December 12, 2002 and hope that she will share the secrets of her success with all attendees.
Justice Mary Ann G. McMorrow becomes the first female
Chief Justice of the Illinois Supreme Court
By Michele M. Jochner
On September 5, 2002, Illinois Supreme Court Justice Mary Ann G. McMorrow became the first woman in more than 180 years to be elected Chief Justice of this state's highest tribunal. Chief Justice McMorrow succeeds former Chief Justice Moses W. Harrison, who retired from the bench after a distinguished judicial career spanning almost three decades.
Her ascension to the position of the Chief Justice of the Illinois Supreme Court is only the latest of historic "firsts" for Justice McMorrow, who has been a trailblazer and role model for women in the legal profession. Chief Justice McMorrow was the only woman in her graduating class at Loyola University School of Law in 1953, where she was elected class president and associate editor of the law review. After completing law school, Chief Justice McMorrow joined the law firm of Riordan and Linklater, engaging in the general practice of law. Thereafter, she was appointed an Assistant State's Attorney of Cook County, and went on to become the first woman to prosecute major criminal cases in that office. Chief Justice McMorrow was elected to the circuit court of Cook County in 1976, and, in 1985, the Illinois Supreme Court assigned her to the Illinois Appellate Court. She was elected a Justice of the Appellate Court of Illinois in 1986. Chief Justice McMorrow was the second woman in Illinois history to serve on the appellate court, and she was the first woman to be elected Chairperson of the Executive Committee of the Illinois Appellate Court. In 1992, Chief Justice McMorrow became the first woman elected to the Illinois Supreme Court in the court's 173-year history.
During her decade on the Illinois Supreme Court, Chief Justice McMorrow has authored nearly 200 opinions. Perhaps one of Justice McMorrow's most widely known opinions is Best v. Taylor Machine Works, 179 Ill. 2d 367 (1997), in which the court overturned the Civil Justice Reform Amendments of 1995, more commonly known as "tort reform." The opinion, which was over 100 pages in length and which has been repeatedly described by legal commentators as very thorough and scholarly, found that various provisions of the tort reform legislation violated the prohibition against special legislation and the doctrine of separation of powers found in the Illinois Constitution.
Throughout her career, Chief Justice McMorrow has been the recipient of numerous distinguished awards and honors. These include Loyola University Law School's 1991 "Medal of Excellence," the Catholic Lawyers' Guild "1993 Lawyer of the Year," and the prestigious Fellows of the Illinois Bar Foundation's award in 1996 for Distinguished Service to Law and Society. Also in 1996, Crain's Chicago Business named Chief Justice McMorrow one of "Chicago's 100 Most Influential Women." In 1998, the Women's Bar Association of Illinois granted Chief Justice McMorrow its highest honor, the "Myra Bradwell Woman of Achievement Award," and Phi Alpha Delta, the largest law fraternity in the world, also conferred on her its highest award, the Barbara Jordan Outstanding Public Service Award. In 2000, Chief Justice McMorrow was the recipient of the John Marshall Law School "Freedom Award," and in 2001 she received the "Arabella Babb Mansfield Award" from the National Association of Women Lawyers. Chief Justice McMorrow has most recently been honored with the "United States Supreme Court Justice John Paul Stevens Award" by the Chicago Bar Association and the Chicago Bar Foundation, recognizing her as one who best exemplifies Justice Stevens' commitment to public service and integrity while practicing law. In addition, Chief Justice McMorrow has been awarded four honorary doctorate degrees.
Chief Justice McMorrow has been, and continues to be, involved in area bar associations. She is a past president of the Women's Bar Association of Illinois and is a current member of the Chicago Bar Association and the Illinois State Bar Association, most recently serving on the ISBA's Special Committee on the Future of the Courts Conference.
In news reports following her unanimous selection as the next Chief Justice of the Illinois Supreme Court, Chief Justice McMorrow stated that "[W]hen I went to law school, women couldn't even dream of such a thing. I hope this would forever indicate that there's nothing that limits women in any job or any profession." Indeed, throughout her career, Chief Justice McMorrow has achieved unprecedented accomplishments which have paved the way for other women to realize their dreams. In every respect, Chief Justice McMorrow has served as an exemplary role model for all Illinois attorneys, setting the highest standards of professionalism and integrity. It is therefore fitting that, when she was sworn in as the Chief Justice of the Illinois Supreme Court, she was the first woman in the history of the State of Illinois to head any branch of state government.
By Darlene Strickland and Eugena A. Whitson-Owen, Moore & Maisel
"The opposing the opinions, and rectifying the mistakes of others, is what truth and charity sometimes require of us, and civility does not oppose, if it be done with due caution and care of circumstances."
John Locke (1632-1704)
Some Thoughts Concerning Education.
The Harvard Classics. 1909-14.
Motions for sanctions--A sanction for incivility?
The DuPage County Bar Association Journal recently devoted an issue to the subject of incivility. It contained presentations and discussions from The Roger K. O'Reilly Symposium on Civility and Advocacy. The participants addressed the inherent tensions in our profession that blur the line between zealous advocacy and incivility. They explored the initial difficulties in understanding both what our profession means by incivility and in identifying its causes. Panel and audience members grappled with the problem posed by certain practice rules that are inconsistent with values, which otherwise promote civility in our profession. When viewed in a vacuum, these rules can lead to the misconception by the public, as well as by lawyers, that being a zealous advocate encompasses uncivil conduct. Self-education and the education of the public about overriding values, which must govern a lawyer's use of practice rules, is a necessary step toward curing the incivility that repeatedly arises from the misuse and misunderstanding of our sometimes perplexing rules.
Illinois Supreme Court Rules 137 and 219(c) allow for attorney fees and/or monetary penalties to be awarded to moving parties when the court finds sanctionable conduct has been committed under the rules by another party or attorney. The misuse and misunderstanding of these provisions is an all-too-common springboard for uncivil conduct. From threats during depositions to litigation careening out of control, the abuse of these rules serves as a prototype for uncivil practices. Moreover, incivility becomes particularly insidious when it is perceived as sanctioned by the very rules under which we practice. There is perhaps no better example of where a lack of education on the part of clients, lawyers and judges collide to promote incivility in the practice of law.
Rule 137
Rule 137 provides:
The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. * * * If a pleading, motion or other paper is signed in violation of this rule, the court, upon motion or upon its own initiation, may impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorney fee. 155 Ill. 2d R. 137 (emphasis added).
Rule 137 was adopted in 1989. It replaced former section 2-0611 of the Code of Civil Procedure. Unlike section 2-0611, Rule 137 allows but does not require the imposition of sanctions. It also requires that the trial judge specifically set forth the reasons and basis for any sanction in a separate, written order. 155 Ill. 2d R. 137, Committee Comments, at lxxiii.
The purpose of imposing sanctions under Rule 137 is to "prevent abuse of the judicial process by penalizing claimants who bring vexatious and harassing actions based upon unsupported allegations of fact or law." Senese v. Climatemp, Inc., 289 Ill. App. 3d 570, 581 (1st Dist. 1997). The purpose is not to punish litigants or their attorneys simply because they have been unsuccessful in the litigation. Burrows v. Pick, 306 Ill. App. 3d 1048, 1050 (1st Dist. 1999). Because litigation is inherently uncertain, it would be unjust to punish litigants for exercising their right to file or defend a lawsuit. The time, expense and difficulty of litigating fees poses substantial burdens for judicial administration. Toland v. Davis, 295 Ill. App. 3d 652, 658 (3rd Dist. 1998). The party seeking to impose sanctions bears the burden of proving that the opposing party made assertions of fact that were untrue and were made without reasonable cause. Burrows, 306 Ill. App. 3d at 1050-51. The decision to grant or deny sanctions rests within the sound discretion of the trial court. Toland, 295 Ill. App. 3d at 654.
The litigation in Technology Innovation Center, Inc. v. Advanced Multiuse Technologies Corp. spanned seven years, six of which "turned into a rancorous Supreme Court Rule 137 (citation omitted) sanctions proceeding that took on a life of its own." 35 Ill. App. 3d 238, 239 (1st Dist. 2000). The case is a paradigm for when the pursuit of sanctions leads to uncivil practices and an abuse of the process.
It all began with a forcible entry and detainer action, which was dismissed within one year for lack of jurisdiction. Id at 240-1. Under Rule 137, defendants then filed a petition for sanctions against plaintiff seeking $67,808.90 in attorney fees and costs. Id at 242. The trial court dismissed defendants' petitions for sanctions. Defendants appealed. Id at 243. The First District remanded for reconsideration of the motions to strike and dismiss, not intending or expecting the case to go any further. Id at 247.
Instead, the trial court allowed defendants to file a second supplemental petition for sanctions. It sought added fines of $1,842,000 for plaintiff's misconduct. The court also reopened discovery on defendants' Rule 137 petitions, after which completed, defendants sought leave to add yet another claim of misconduct and seeking additional attorney fees and costs. Id at 242. The trial court ultimately dismissed defendants' petitions for sanctions again, finding that, in balance, any wrongdoing by plaintiffs did not warrant sanctions. Defendants appealed again. Id at 243.
In affirming the trial court's dismissal of defendants' petitions for sanctions, the First District reflected on how the litigation had run amok:
Our review of the record persuades us it was the defendants' conduct that stretched this litigation beyond the boundaries of reason--in time, effort, and expense. At some point this case stopped being the simple legal dispute it should have been and became a one-sided war of attrition. Motions directed at [plaintiffs] became offensive weapons. The discovery process was abused. The judge too-patiently heard and reheard oral arguments. We understand and share the trial judge's reluctance to reward the defendants' behavior. Id at 246.
Motions for sanctions under Rule 219(c) also spawn wasted time, effort and expense. Fueled by misconceptions of the purpose and application, monetary sanctions are sought and awarded for the wrong reasons.
Rule 219(c)
Supreme Court Rule 219(c) provides that if a party unreasonably fails to comply with or violates discovery rules, "the court, on motion, may enter, in addition to remedies elsewhere specifically provided, such orders as are just, including among others, the following * * *." The rule then specifies a number of sanctions, including the entry of a default judgment, the striking of pleadings, the barring of testimony and contempt proceedings. "In lieu of or in addition to the [sanctions provided for in the rule], the court, upon motion or upon its own initiative, may impose upon the offending party or his or her attorney, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of reasonable expenses incurred as a result of the misconduct, including a reasonable attorney fee, and when the misconduct is wilful, a monetary penalty." 166 Ill. 2d R. 219(c)(emphasis added).
The purpose of imposing sanctions under Rule 219(c) is to accomplish the object of discovery and not to punish recalcitrant litigants. Sander v. Dow Chemical Co., 166 Ill. 2d 48, 68 (1995); Fine Arts Distributors v. Hilton Head Corp., 89 Ill. App. 3d 881, 883 (1st Dist 1980). While the trial court may impose necessary sanctions to accomplish discovery, it may not impose sanctions that are intended primarily as punishment. Workman v. St. Therese Medical Center, 266 Ill. App. 3d 286, 293 (2d Dist. 1994).
An award of expenses as a Rule 219(c) sanction must be related to the result of the specific misconduct and may not extend to other issues in the case. Dyduch v. Crystal Green Corp., 221 Ill. App. 3d 474, 480 (2d Dist. 1991). The decision as to whom such a penalty may be payable is left to the discretion of the trial court based on the discovery violation involved and the consequences of that violation. Transamerica Ins. Group v. Lee, 164 Ill. App. 3d 945, 948 (1st Dist. 1987).