Steve Thomas
Attorney at Law

Chapter 2The Wild West Approach to Justice

The other judge in Piatt County when I started to practice law here was Associate Judge Chris E. Freese.

The associate judges who serve Piatt County have the rather unpleasant task, it seems to me, of making the rounds to several of the smaller counties that comprise the Sixth Circuit (besides Piatt, there are Moultrie, DeWitt and Douglas counties; Champaign and Macon counties also are in the circuit but have their own associate judges). An associate judge is appointed by the circuit judges. They not authorized to send those convicted of crimes to prison, unless they have been given special leave to do so by the Illinois Supreme Court. Their terms are four years instead of a Circuit Judge’s six years. Otherwise, their authority is the same as a Circuit Judge.

Judge Freese would become one of those judges that I vow NOT to be like if I should ever occupy his position.

I was still pretty green as an attorney when a potential client contacted me needing help with a child support case that had been before Judge Freese in DeWitt County. At that time I had not yet fully appreciated that clients can sometimes doctor the facts to put themselves in most favorable light when they describe their case to their attorneys, and I probably put way too much faith in what this guy was telling me.  He felt the child support he was ordered to pay was excessive, and wanted to know if anything could be done about it. He had concerns over the way the judge had conducted his case, and even told me that the court record might have been tampered with.

Yes, I told my client, there were things I might be able to do. There were avenues under the rules of civil procedure, such as filing a motion within thirty days of a final judgment asking that the judgment be changed based on errors of law or discovery of new evidence. Under certain more strict conditions, I could also file such a motion for up to two years after a judgment; I’d have to show that the party requesting belated relief had good reasons for not doing so sooner.

After I reviewed the court records, I could understand some my client’s grievances. The records included a transcript of a hearing in which my client had appeared without an attorney, and the judge seemed demanding and unfair; and more importantly, he seemed to have gotten the law wrong. The judgment was over 30 days old, so I would have to file a motion under the stricter standards of the two-year limitation statute, but I decided there were sufficient grounds to show an error of law and that my client had needed time to find a lawyer. That delay should have been a red flag for me, but I was probably too eager to take my own cases, since I was still just starting out.

As I recall (this was nearly 20 years ago), Judge Freese denied my motion, but he used different reasoning to justify his previous judgment, and I thought he new reasoning was not sound, either. In my view, if this had been the grounds for the original ruling, I could file a motion to reconsider it, but because I had already filed such a motion, I could not file another one attacking the same judgment. I could appeal, but appeals are costly and time-consuming, and appellate court justices tend to defer to trial court judges (as I learned in law school, but would find out later that they sometimes did so to a ridiculous degree).

It seemed to me that Judge Freese was not being fair, and that he was driven by the result he wanted instead of by what the law directed him to do. In hindsight, I realized that if Judge Freese really were as misguided as it seemed, it would be pointless to challenge him directly, and or even to appeal.

I looked for a way to resolve my concerns in the trial court. I reasoned that there was an argument for changing the law to permit a motion to reconsider when the judge changes his reasons for a judgment. There is a court rule that says if you have such an argument, you are not guilty of filing a frivolous pleading, for which you can be sanctioned. I filed a motion based on this view. I also filed a motion to substitute judge for cause, alleging that Judge Freese’s ruling was biased and unfair. In addition, I filed substitution of judge as a matter of right, which I later realized was a mistake because the law did not allow such a motion under these circumstances.

The results were not good. The judge denied my motions and considered them to be filed in bad faith. A different judge heard the motion for substitution for cause. He took months to do so even though the statute requires such a motion to be heard as soon as possible. The reviewing judge stated he found no unfair bias in Judge Freese’s judgment, and that coming to this conclusion was “easy.” Judge Freese then took back the case, and found my motion to substitute him out as a matter of right to be filed in bad faith, and invited the opposing side to ask for sanctions against me.  The other side was upset with me for mounting such an aggressive challenge to the ruling that favored them, so it was only too happy to move for sanctions against me.

My client, by now, had also turned against me because I had insisted that he pay me for my time. He told the judge that in confidential conversations that I had threatened the judge’s safety, something my client knew very well was false. Judge Freese chose to believe the worst about me, and wound up imposing thousands of dollars’ worth of sanctions against me for my supposed bad faith motions, including the substitution motions. Judge Freese also filed a complaint with the Illinois Attorney Disciplinary and Registration Commission about my “bad faith” violations and about the supposed threat.

I appealed these sanctions, and the appellate court even reversed some of them, but did so by remanding – sending the case back to Judge Freese and giving him the power to correct his mistakes. I did not give him that chance, and took no further action on remand. I met with an ARDC representative and explained my side, and they took no action against me. The difference between ARDC’s ability to consider and understand my point of view, as compared to that of Judge Freese, was like night and day.

In the end, I had to pay thousands in sanctions and could not collect thousands more in fees from my client. I was not wealthy, and these penalties hurt.

In my view, the American judicial system should encourage challenges to a judge’s reasoning – in other words, you should be allowed to ask questions, as I did in this case – even if they seem stupid or presented in bad faith. Case law – previous court decisions that have the force of law – apparently does call for this, but Judge Freese appeared to ignore it in my case.

It seems that a judge should encourage questions and settlement discussion to smooth the wheels of justice. In this case, Judge Freese took sides unfairly, in my view, and only made things worse when I tried to use reason through legal channels. I had suggested in one of my written memoranda in that case that he seemed to make rulings, not based on reason, but instead by the principle “might makes right.” From his reaction, he apparently took personal offense – by socking me with sanctions.

The way Judge Freese handled this case left me feeling violated and deeply disappointed with the justice system on many levels. I would have quit if I’d had any other means to support myself. I felt Judge Freese was unfair, unwise and overly authoritarian, just because I was honestly challenging a ruling that he himself admitted was wrong, since he found it necessary to revise it.

Since that time, I have seen other attorneys engage in misconduct that I consider much worse than what I did in this case before Judge Freese. Other judges are very reluctant to impose sanctions on attorneys, and wisely so. In the very same case which I described above, an opposing attorney made an argument based on law that he clearly misinterpreted and misapplied. I went to the trouble of moving for sanctions, but the motion was not taken seriously and summarily dismissed by the same judge who had heard my motion for substitution for cause against Judge Freese.  I still do not understand how judges can have so much discretion in imposing sanctions as to give such free rein to impose them on attorneys and parties they don’t like, while letting others off free; this seems to invite judges to treat people in similar situations differently.

From that time forward, I always either substituted out Judge Freese as a matter of right before a case began, or if that was not possible, I declined to take the case, unless it was clear the parties could settle their dispute without having to rely on Judge Freese to make important decisions. Judge Freese’s actions against me obviously hindered my ability to practice law in Piatt County and surrounding counties for a long time.

If I should ever become a judge, I will not rule on the “Wild West” principle of “might makes right” – that my rulings are correct just because I am a judge and I made the ruling. That is downright un-American, and smacks of Nazism and totalitarianism. Nor will I issue a judgment based on my own reasoning, as opposed to reasoning argued by an attorney or party, without clueing that person into my thinking and giving that person a chance to respond. I will make my courtroom a place in which finding the truth is of paramount concern, and the parties feel free to state their cases and ask questions.

In my opinion, Judge Freese acted like a gunslinger, a cowboy acting as if the law were what he said it was. The courtroom should not be the Wild West, where the judge issues arbitrary decisions and often merely placates his or her own ego. Most judges, I have found, agree with me on this, but in my opinion Judge Freese did not. Thank goodness he is now retired.