Steve Thomas
Attorney at Law

Chapter 7

Don’t Leave Us in the Dark, Please

Most trial judges do an adequate job of explaining their decisions, but none are not obligated to. Most of them have heavy caseloads, so the law does not impose this burden on them. In my view, however, there is no downside to a judge fully explaining the reasoning for every decision he or she makes in contested cases.

I think the law should require trial judges to explain their decisions, just as appellate justices are required to.  This position is not as radical as it may appear, because judges often require the attorneys to draft judgments in simple or agreed-to matters, and they do not have to make judgments in contested cases all that often. Whether they actually do issue a written memorandum on a ruling in a contested case is discretionary, but in my view, the more discretion a judge has, the more liberty that judge has to show unfair partiality. Besides, I believe this requirement would reduce the number of motions to reconsider and appeals, making the judicial system more efficient in the long run.

I don’t know how other attorneys feel about it, but for me, it is very frustrating to make an argument I believe is well-researched and well-argued, only to have a judge ignore it and issue a decision for reasons of his or her own. I complained of this in Chapter 5, which involved an appellate court’s failure to address what I believed was an argument that had great merit. Justice Steigmann called my argument “stupid,” but he didn’t feel bothered to explain why.
So, not only should judges explain their decisions, those decisions should also answer the arguments of the attorneys.  

Not only that, but if the judge is thinking of some ground for deciding in a way the attorneys have not argued, that judge should mention it during the time the attorneys are presenting their arguments, in order that they may have an opportunity to respond to it.

A good example is the Finson case I have already described in Chapters 3, 4 and 5. Not only did Judge Difanis not explain why he thought the matter was one for the Judicial Inquiry Board, he did not even give me a hearing when I filed a motion asking him to reconsider it. Had he been required to put in writing his response to my argument, he might have had a harder time ignoring it. He probably would have found a way around it, however, just as the Appellate Court did, for even though it issued a written opinion, it ignored my argument that Supreme Court’s legal precedent required it to consider the record of the Constitutional Convention in interpreting the Illinois Constitution (or, even if the Thies principle were not legal precedent, it was still was worth considering).

Judge Karl Koritz in DeWitt County was one of the judges that occupied the bench for a time in Piatt County because of the Finson conflict situation. In a more recent case in DeWitt County, he denied my client relief from what the state’s own child support records showed was an overpayment of over $6,000 in child support over a period of about seven years. He commented that he ruled as he did because my client’s prior attorney had agreed to the order that resulted in the overpayment, and therefore contract law applied.

The children’s mother had two attorneys helping her, an Assistant Attorney General because that office had assisted with her in collecting child support for years, and Suzanne Wells, who was on the case in connection with the removal of the children from their mother’s care. This two-on-one situation apparently did not offend the Court. It offended me, but I could do nothing about it.

Neither of the mother’s attorneys had argued that contract law applied during the hearing or in writing. The Assistant Attorney General had argued that the order was more than two years old and therefore there was no statutory provision available to change it. Ms. Wells made the same argument, and did little more than let the Assistant Attorney General do the heavy lifting in this matter. My argument had been that the order was illegal and void when it was entered because the court had no authority to modify a child support order without a motion to modify having been filed or without the parties having explicitly agreed to do so, and neither of these occurred here.

I had taken the case to help my client get custody of his two children after they were taken from the custodial mother after she had exposed them to an abusive boyfriend. My client had been paying child support, but with the change in custody, his obligation to pay ceased, and the mother had to start paying support to him. In the process of reviewing the child support records, I found the child support overpayment.

During the time my client paid child support, several orders were entered and modified as the parties’ incomes changed. In a May 2015 order, however, my client’s arrearage was found to be $2,500 by party agreement. This was part of an order that modified the amount he had to pay in child support because of a change in the parties’ incomes. According to the previous orders and the payments made up to that time, however, my client had overpaid by that time a little over $3,500. I filed a motion to vacate the 2015 order on the ground that it effectively modified prior child support orders, which the order and agreement were not intended to do.

Judge Koritz’s decision avoided the attorneys’ arguments by saying the parties had agreed to the $2,500 arrearage in 2015 and under contract law the agreement was binding.  He did not raise the question of contract law during the arguments of either side. He did not address the arguments of the attorneys, and did not issue a written opinion. (He handled the case in a manner exactly opposite that Judge Webber in Chapter 6 – it seems the judges could find a happy medium somewhere!)

I filed a motion to reconsider which set forth my previous arguments; but I also argued that if contract law applied, then the agreement to the $2,500 arrearage was not enforceable because it was wholly one-sided, with my client giving up than $6,000 and getting nothing in return. As any first-year law student knows, a contract must have consideration to be enforceable; a one-way agreement in which one side gets a benefit and the other side gets nothing is not legally enforceable. The Assistant Attorney General did not really answer that argument, nor did Ms. Wells. Neither did Judge Koritz, for that matter. When he ruled on my motion to reconsider; he merely again stated that the parties had agreed to the arrearage, so the modification of past child support orders was valid. He still did not address my argument, and he still did not issue any written opinion.

I’m lucky I didn’t stroke out that day, because I thought I had the stronger argument, and that neither the Assistant Attorney General nor Judge Koritz, much less Ms. Wells, had explained adequately what was wrong with it. I began to think my only avenue was to appeal, an expensive and time-consuming process whose cost would probably exceed the $6,000.00 that was in dispute.  I looked for alternatives, but the experience with Judge Freese taught me to be very cautious.  I emailed the Assistant Attorney General and Ms. Wells, explaining why I thought Judge Koritz was wrong, and I even filed a motion asking Judge Koritz to clarify his ruling and explain in writing what was wrong with my reasoning. I was careful not to ask the judge to change his decision – I said I needed the information to decide whether to appeal or not, a very real option.

Ms. Wells merely deflected my request, saying it was up to me to figure out why Judge Koritz ruled as he did. This convinced me that she hardly had a clue of what was going on. Ms. Wells had done little or nothing to contribute to the Assistant Attorney General, who had done most of the work in defending against my motion to correct the child support overpayment. She apparently charged her client for attending hearings and offering arguments that mostly repeated those of the Assistant Attorney General.

The Assistant Attorney General, however, to her credit, did make a serious effort to answer my questions. In the end, she came up with a case from the 1890s (still having the force of law, despite its age) which stated that courts have authority to enter as court orders any agreement the parties take to them. I don’t think Judge Koritz had this case in mind when he made his ruling, because it did not really rely on contract law at all – it was more of a matter of a court’s authority to issue judgments. It was enough, however, to convince me that I would likely lose if I were to appeal (especially in light of the Appellate Court’s infamous deference to trial court judges even on matters of law). I still thought I could argue that the parties did not intend to modify prior court orders by agreeing that a $2,500 arrearage existed in May 2015, but I decided that this argument was not strong enough to risk an appeal.

Suzanne Wells did little but obstruct my efforts to clear up this child support overpayment issue.  Judge Koritz even imposed sanctions against her for doing so. I had asked both opposing attorneys if they would stipulate to the accuracy of the state’s child support payment records, in order to save the cost of calling someone in from the state office to testify to those records. The Assistant Attorney readily agreed, but Ms. Wells did not. Ms. Wells later admitted, in court, to the records’ accuracy, but only after I went to the unnecessary trouble of calling the state witness into court. I don’t blame Ms. Wells for trying to help her client keep her $6,000 windfall, but I do blame her for being unreasonably obstructive. Judge Koritz agreed, and ordered Ms. Wells to compensate me for the time I lost.

I believe that Judge Koritz should have, in this case, issued a written decision and explained his decision in light of the arguments the attorneys had made. This might have made him consider his reasoning more carefully, and this might have led him to rule differently. He issued what appeared to be a fairly arbitrary decision, and left it to me to appeal if I thought he was wrong. I had to do a lot more work. Well, better me than him, you might say. That’s not the attitude I would take if I were the judge. I would issue a written opinion in a case like this. I would address the attorneys’ arguments and state my ruling in light of those arguments, because they deserve reasoned responses to those arguments. More likely than not, this approach would save time in the long run.