(From the February 2011 Issue)
The Second Floor of the
DuPage Judicial Center houses the smallest division of the judiciary in DuPage County – the Chancery Division. Judge Bonnie M. Wheaton presides over the division, which also counts among its number, Judge Thomas C. Dudgeon, Judge Terence M. Sheen, and Judge Robert G. Gibson.
Judge Wheaton received her Bachelor of Arts degree, cum laude, from Carleton College in 1966. She then went on to the University of Michigan, receiving her Masters in Social Work in 1968. Enticed by a class entitled Law & Social Work, as well as a law school seminar entitled Legal Problems of the Poor, Judge Wheaton was bitten by the legal career bug. She pursued her J.D. from Lewis University (now the Northern Illinois University College of Law), which she attended with her fellow area jurists, Judge Rodney W. Equi, Judge John T. Elsner, Judge Joseph S. Bongiorno, and Judge Victoria A. Rossetti. She graduated first in her class of approximately 230 students in 1978. While still in school, she clerked at Wylie & Mulherin in Wheaton. She went on to practice there after graduation, handling general litigation matters for about ten years. The firm became known as Wylie, Wheaton & Associates.
Judge Wheaton has been and remains an active member of the DuPage County Bar Association. She currently serves as the Chair of the Diversity Committee and previous chaired the Law & Literature Committee. She served as Associate Editor for the DCBA Brief during (now Judge) Dorothy French’s tenure as Editor-in-Chief. Prior to joining the judiciary, she was also an active participant in Judges Nite, the DCBA’s annual send-up of the judiciary and the legal system to raise money for Legal Aid. She was a performer and writer.
When she began her judicial career, she recalled, “our courts in DuPage were like the federal courts, with every judge hearing a mix of every kind of case from criminal to civil.” Judge Wheaton was appointed as an associate judge in 1988. She sought a position on the bench because of her experience in the courtroom. “I never had a courtroom in the old building,” she said during a recent reunion there. “I became a Judge in 1988 and we moved into the new courthouse in 1991. I worked in the Field Court and then I was in misdemeanor. Then I was assigned to the County Building and then the Annex.” She was assigned to the chancery division when the court moved to its current location in 1991.
The chancery division deals with matters of a civil nature that involve equitable issues (as opposed to the law division which is generally limited to cases involving money damages). Taking a deep breath, Wheaton listed the types of cases heard by the division. “We hear commercial and residential foreclosures,” she said, “mental health (commitments and electroconvulsive shock therapy requests), tax objections, forfeitures, liens, replevin matters, probate and wills, guardianships, election matters, zoning matters, business dissolutions, injunctions, declaratory judgment actions, forcible entry and detainer matters, name changes, real estate partitions, and sexually violent persons matters.”
Chancery faces many challenges not faced by the other divisions but one particular challenge to the division is the growing volume and complexity of commercial real estate and foreclosure matters. Until recently, foreclosures were but a small part of the chancery call. During former Chief Judge Ann Jorgensen’s tenure, however (2005-08), another chancery judge was added and a housing court was established to handle the burgeoning foreclosure and forcible entry caseload.
Judge Wheaton has been actively involved in trying to educate people who find themselves defending against foreclosure actions. She is often quoted as emphasizing the importance of defendants showing up in court and not ignoring the notices they receive and her division has introduced a number of resources to help address the effect of the foreclosure crisis on people living in DuPage County. Foreclosures are not limited to the residential world, as commercial foreclosures have also been on the rise. Judge Wheaton pointed out during this interview that commercial foreclosure actions are especially complicated. “Along with the purchase and mortgage documents,” she said, “there can be sub-loan agreements, personal guarantees, and purchase terms.” But then, she added, “there are always novel issues in chancery,” which is one of the reasons she enjoys working in the division.
Judge Wheaton remarked that the chancery judges enjoy a collegial relationship. “We often face unique or first impression issues and we communicate frequently with one another,” she said. “We don’t have formal, scheduled meetings. We just discuss the issues as they arise.” In addition to the complexities inherent to foreclosure actions and other cases involving real property, the chancery division also deals with cases that arise under state law involving intellectual property. The number of cases involving computer and technology-related litigation has risen, she pointed out, as has the number of cases involving trade secret litigation. In short, she said as she checked her iPhone 4 with a glint of enjoyment, the chancery judges “need to keep abreast of the law and the technology in our modern world.”
One example of how the chancery judges interact relates to a recent ruling by the Honorable Thomas Dudgeon in which he held that the vehicle forfeiture statute is unconstitutional. Though judges cannot comment on pending cases as to the merits or to specific issues, Wheaton noted, “Judge Dudgeon went through many drafts of his opinion and he asked [the other judges] for reviews of the opinion.” The next obvious question was whether the other judges added their own commentary to the actual ruling. Judge Wheaton’s answer: “No, we did not review or comment on the actual ruling, but rather just talked about the soundness of the reasoning.”
Cases like the forfeiture case bring to mind the feeling that lawyers who practice in chancery are “ready to deal with cases and issues of inequity and make sense of problems that do not always have a monetary resolution.” Judge Wheaton said that, in her experience, the best attorneys are those who “are realistic with their clients, and present both the best and worst case scenarios to their clients.” She added, “I value early pretrial conferences, as it is better to attempt to resolve cases before the clients have spent vast sums of money and become entrenched in their positions.” She emphasized how importance it is for attorneys to “control their clients,” mindful of the fact that many of the issues in chancery are deeply rooted in personal feelings and emotions.
Judge Wheaton acknowledged that she has something of a reputation for encouraging attorneys to settle cases. She emphasized, however, that she does not mind making a decision when she needs to. That fact is clear from recent rulings she has entered in a high-profile Naperville districting and election matter. The case involves varied complex issues, from candidacy filings to the public’s right to have their referendum carried out, to possible term-limit issues arising from districting. Wheaton could not and did not comment on the case as it is still pending before her. But media coverage of the case illustrates one mantra shared by Judge Wheaton, “you just can’t make this stuff up.”
The one comment she would make in this context was that the judiciary serves the public and judges “should not use the courtrooms as extensions of their egos.” This led to a discussion about the recent election in Iowa and the voters there opting not to retain three Supreme Court Judges who ruled on the state’s same-sex marriage ban, declaring it to be unconstitutional. Wheaton expressed her concern some years ago with the amount of money that is being invested in campaigns against judges and she emphasized again that such action “has a chilling effect on judges and severely affects the independence of the judiciary.”
On the one hand, the United States Supreme Court has now held that corporate messages in elections are a valid exercise of free speech.
On the other hand, the Illinois Code of Judicial Conduct prohibits judges from engaging in inappropriate political activity, thus limiting (but not prohibiting entirely) the extent to which they can respond to heavily financed campaign attacks.
The situation raises the question of whether the judiciary can be the independent bastion of protection for the public from potential abuses from the legislative and executive branches if people or corporations can engage in political campaigning to oust judges based on their rulings. Wheaton had mixed emotions on the topic. Still, despite her degree of disagreement with the politicizing of the judiciary (the recently unsuccessful campaign to oust Illinois Supreme Court Justice Thomas Kilbride is one local example),
Judge Wheaton is committed to her position and to doing her job as a judge. “I enjoy being a judge,” she concluded. “If I spend the rest of my career in chancery, I’ll retire happy.”
 Though many of the stories she could (and did) share have been lost to history or held in secrecy, she did share that one of her toughest, but most successful tasks was finding a rhyme for the maiden name of Rita Elsner (spouse of her law school and judicial colleague, the Honorable John Elsner).
 The division owes its roots to English history. The Court of Chancery was originally an extension of the Lord Chancellor’s role as Keeper of the King’s Conscience, which therefore had broader jurisdiction than the common law courts. The Court of Chancery, specifically, had equitable powers it could enforce (through the King’s Army) that the common law courts could not. Today, although Illinois has a unified court system, such that all of the trial court judges have essentially the same jurisdiction and the same authority, the division between law and chancery remains the basis upon which different civil cases are assigned. Cases involve equitable issues, generally decided by a judge rather than by a jury, are assigned to chancery. Money damage cases are assigned to the law division (or to arbitration or small claims if less money is involved).
 See, e.g. Chris Ladd, Dupage Courts Work to Ease Foreclosure Crisis, Chicago Now (October 8, 2010), http://www.chicagonow.com/blogs/politics-in-dupage-county/?p=2
 As discussed in more detail in the article by Judge Bob Gibson in this edition of the DCBA Brief.
 See People v. One 1998 Ford Explorer, 2009 WL 3856411 (18th Cir. Nov. 17, 2009). See also Alexander J. Geocaris, Is the Illinois Vehicle Forfeiture Statute Unconstitutional?, 23 DCBA Brief 3 (December, 2010), pgs. 44-50 (discussing Judge Dudgeons’ decision).
 See A.G. Sulzberger, Ouster of Iowa Judges Sends Signal to Bench, New York Times (November 3, 2010).
 Citizens United v. Federal Election Commission, ___ U.S. ___, 130 S.Ct. 876 (2010).
 Illinois Code of Judicial Conduct, Rule 67 - Canon 7.
 See Monique Garcia, State Supreme Court Justice Wins Retention Battle: Group Seeking Caps on Jury Awards Targeted Thomas Kilbride, Chicago Tribune (November 02, 2010), http://articles.chicagotribune.com/2010-11-02/news/ct-elect-kilbride-20101102_1_jury-awards-retention-battle-constitutionality-of-state-law.