Steve Thomas
Attorney at Law

Chapter 3

Outright Bias

I now move on to a time later in my legal career – a time when I was not as vulnerable to being punished for making beginner’s mistakes.

By far, the worst case of judicial bias I have experienced was with respect to a petition I filed asking for the removal of a judge. I believed Circuit Judge Hugh Finson was not qualified to serve as the county’s resident circuit judge under the Illinois Constitution.

I speak of that provision in Article VI section 7(b) that establishes the concept of resident Circuit Judges: “Unless otherwise provided by law, there shall be at least one Circuit Judge from each county.”

It seems a matter of common sense that this one Circuit Judge to which each county is entitled was meant to actually serve that county – which of course is the usual practice – instead of being sent off to be a judge in some other county. At the very least, this provision raises that question in a situation where the resident judge is not able to serve the home county, for whatever reason.

Judge Finson had a conflict of interest: His niece, Dana Rhoades, was Piatt County’s State’s Attorney. For him to hear cases that involves her office would give an appearance of impropriety, which the Code of Judicial Conduct prohibits. The State’s Attorney’s office handles virtually all of the criminal cases in Piatt County, and these were the majority of all cases, none of which Judge Finson could hear.

To this day, Judge Finson usually sits in counties outside Piatt County at least three days per week, and often when he is in Piatt County, he has a light case load.  Since 2012, judges from other counties have had to come in to take up the slack. It seemed to me this violated the constitution’s provision that each county is entitled to at least one Circuit Judge of its own.

It seemed reasonable that Piatt County should have a judge who could hear most of his cases in Piatt County since only Piatt County voters elect their resident Circuit Judge.  Judge Finson was elected in 2014 (after being appointed to fill the vacancy left by Judge Shonkwiler in 2012) by the people of Piatt County only – he was not on the ballot in any other county. Shouldn’t he therefore serve the people of Piatt County primarily?

In researching this issue, the first thing I did was consider the phrase “Unless otherwise provided by law,” and make sure there was no other law – such as some statute enacted by the General Assembly –  that changed the “one Circuit Judge from each county” requirement. There wasn’t.

I did find that resident Circuit Judges may, under the Constitution, serve in other counties temporarily (Article VI section 16: “The Supreme Court may assign a Judge temporarily to any court”). Serving in other counties at least three days of the week for an indefinite period of time seems to be much more than temporary.

I also found an Illinois Supreme Court case (Thies v. State Board of Elections, 1988), a case that had originated in Champaign County, that appeared to authorize a court to look at the record of the Constitutional Convention to interpret the Constitution, even when the meaning of the Constitution seemed clear and unambiguous. According to Thies, “the plain meaning rule should not be applied to thwart the obvious intent of the drafters by excluding enlightening material.”

So, I studied the records of the 1970 Constitutional Convention to see if it shed any light on this question. I found that there is a copy of this record in the Piatt County Courthouse law library, as well as in most law libraries in the state. I found strong evidence that the framers did indeed intend that the county’s resident Circuit Judge actually serve the home county, other than for temporary duty outside the county. It states almost explicitly that the resident Circuit Judge was not intended merely to represent the county in the circuit or state. Here is what I consider to be “enlightening material” from the record (page 2284 in Vol. 3 of the Record of the 1970 Constitutional Convention):

MR. MILLER: Chairman Fay, in your proposed language, you indicate that there shall be at least one circuit judge in each county – and that’s the downstate counties. Could you explain the rationale of your committee in building that language into the constitution?

MR. FAY: It’s there now, and we propose to liberalize it a little bit and make that subject to law – and make it “unless otherwise provided.”

MR. MILLER: All right, in maintaining that plan, do you recognize the geographies somewhat – that you are trying to achieve representation – balance of representation throughout the downstate counties? Is that the objective of this?

MR. FAY: Not a primary objective – it’s not a primary objective because we don’t believe justice really is a geographic matter.

MR. MILLER: Then there is no rationale then for doing it that way other than we are doing it that way now. Is that it?

MR. FAY: That’s the main thing, and we have to be practical. We don’t want to mandate a change of that drastic a nature. I don’t believe the people would approve it.

(Emphasis added.) This discussion shows that the purpose of “one Circuit Judge from each county” is not merely to provide a county with judicial representation in the circuit or state. That is does provide such representation is incidental – not primary – to the main purpose. The main purpose can only be to entitle each county to a judge of its own, elected by its own people. That’s the way things had been, and it was intended that things stay that way.

That is why only the people of a particular county can vote for its resident Circuit Judge. That judge is intended to serve the home county, not other counties in the circuit. Assignment outside that county can only be temporary under Article VI section 16 of the Constitution.

And yet Judge Finson has served on the bench outside of Piatt County for the majority of the time during his entire time on the bench since 2012!

My further research revealed that state law requires the State’s Attorney to file any action to remove a judge unless there is a conflict of interest, in which case any citizen can file the action. In this case there was such a conflict, which was the cause of the problem in the first place.
I also concluded that the matter should go before the Piatt County Circuit Court instead of the Judicial Inquiry Board, which is body created by the Constitution that disciplines judges. The Board hears complaints of judicial misconduct, and if a complaint has merit, refers it to the Illinois Courts Commission for action. I was not charging Judge Finson with any misconduct, only that he was not qualified to serve as Piatt County’s resident Circuit judge because the conflict of interest with the State’s Attorney’s office prevented him from serving the county as the Constitution intended. This charge required an interpretation of the Illinois Constitution that the courts had never previously considered, as far as my research could tell.

Judge Finson himself could not hear the case, of course, and it was assigned to a judge outside Piatt County – Circuit Judge Thomas J. Difanis of Champaign County – although it remained a Piatt County case. This assignment was made by Dan L. Flannell, Chief Circuit Judge of the Sixth Circuit. He did not assign the case to himself, probably because he and I had had discussions about the matter, and he had made it clear he thought I was wrong (without adequately explaining why – he said he would not “argue with me”). In hindsight, I suspect Judge Flannell assigned the matter to Judge Difanis because he knew how Judge Difanis would handle it, but that is pure speculation on my part. At the time I had no reason to dispute the assignment because Judge Difanis was probably the most senior judge in the Sixth Circuit.

The Attorney General’s office took the case in defense of Judge Finson. So I was spending my own time and money on this case, while Judge Finson had all of his expenses covered by the State of Illinois. In my petition I asked that a special prosecutor be appointed to handle the case to remove Judge Finson, as the law required. The case would be offered to other State’s Attorneys, and if none opted to take it, it could be offered to any private attorney, including me, possibly, who could charge the State for his or her services.

At the only hearing that ever took place at the trial court level in this case (and the only hearing Judge Finson would have to take out of his schedule to attend), the Assistant Attorney General assigned to the case argued that it was a matter for the Judicial Inquiry Board. She had not made this argument in her written response to my petition, so she sprung it on me at the hearing. Judge Difanis agreed with the Assistant Attorney General and dismissed the case.

This ruling was about as wrong as it could possibly be, as should have been clear to anyone who was not prejudiced. There was Illinois Supreme Court precedent (People ex rel Harrod v. Illinois Courts Commission, 1977) that explained that the Judicial Inquiry Board heard only matters about which there was already clearly established law, and the question I raised involved an interpretation of the Illinois Constitution that no court had ruled upon up to that time.

The law permitted me to file a motion to reconsider. I did so, and argued that Judge Difanis’ ruling was an error of law, citing Harrod. Unfortunately, Judge Difanis did not even give me a hearing on the motion, and denied it summarily.

I don’t think I have ever had a judge do that before or since – a judge almost always at least give me a chance to make my argument in person at a hearing on a motion to reconsider. Judge Difanis gave no explanation or reasoned response to my argument that this was not a matter for the Judicial Inquiry Board. The Assistant Attorney General had offered no real counterargument. It was apparent to me that Judge Difanis did not feel it was appropriate for one circuit judge to sit in judgment of another circuit judge, but he made no effort to support this view with any legal authority. I feel to this day he shirked his duty to the law in order to protect a fellow judge, and that his decision was a case of outright bias. (I did file a complaint with the Board against Judge Difanis, but nothing was done.)

So, I appealed. Although the Appellate Court decided against me on other grounds (which is another matter; see Chapter 5, below), it agreed with me that my petition had been properly before the circuit court, and was not a matter for the Judicial Inquiry Board.

Judge Difanis was, at that time, a veteran judge who had been around for years, with whom I’d had very little experience previously. I have no other reason to believe he was a biased or otherwise incompetent judge. But in this case, I believe he simply disregarded the law because he thought a private citizen should not be able to challenge the legitimacy of a sitting judge, and he wanted to protect a fellow judge, may the law be damned. Even now, I challenge Judge Difanis to justify his decision and his handling of my case.

It seems needless to say, but if I ever become a judge, I would never do as it appears Judge Difanis did in this case. I would never completely disregard the law’s clear mandates.