I was conned into writing this piece by Judge Kenneth Popejoy, however the compelling factor was, he gave me license to do what I wanted. To tell you about that portion of judicial history of which I was a part requires some personal retrospect. My career path was formulated when I was a wee lad. No one in my family had ever obtained a college degree and my father, a truck mechanic, had a fixation that one of his two sons would. My older brother promptly went into the auto repair business when he graduated from high school, so the focus was turned on me. That did not bother me because I was never an advocate for the merits of manual labor.
The next question of what I would seek to do to feed myself and future family was easy because I had dreamed of becoming a professional something or other when I was about ten years old. But, what would it be? Doctor, lawyer, or Indian chief. I thought about each. There was too much blood for my stomach to be a doctor and I was too fair skinned to pass as an Indian, so lawyer it had to be. My Mother endorsed this decision because she said I loved to argue. Most of my arguments were with my Mother because my Father was a disciplinarian to whom the only acceptable response was, "yes sir".
So, when I graduated from High School I spent two years in junior college, living at home because the total cost back then was about $200.00 a year. Then off I went to the University of Illinois where I completed my undergraduate work and succeeded in graduating from law school. During this period of time, 1951 to 1957 the Korean war was going on and it was a powerful incentive to do well. Flunking meant hello Hanoi, and getting shot at in some foreign swamp had even less appeal than even being a doctor.
Law school was a shock to me because prior to that point, education was simple. Study the questions and answers and when tested, apply the memorized answers to the recognized questions. But in law school you were not given the questions; only a set of hypothetical facts from which you were supposed to find the questions, and the answers were not definitive if logically applied. I learned to praise a "B" and sighed with relief in classes that produced a "C". My freshman class consisted of about 100 students and at the end of the first year, there were about 45 left standing. Of that number about 30 graduated. We had one women in our group who was very attractive. She went unnoticed, however, due to concentration and focus of the rest of us.
After graduation from law school, I remember taking a bar review course from a guy they called "Doc". It seemed he was an alcoholic who only sobered up twice a year to teach this course. I studied hard and when it came time for the test, I was as nervous as a long tail cat in a room full of rocking chairs. A friend of mine lived near Chicago where the test was administered so I stayed with him. We would discuss the test each day which was a known "no no" and we discovered our answers to almost every question were different. As luck would have it, we both passed. This was a big relief because it meant I would go out and make a lot of money. Life is filled with dreams.
I started my job search in Wheaton, as I lived and still do in Downers Grove. All of the big firms, those with over two attorneys, did not need any help. So I expanded my geographical area which sent me after the only job offer I had from a one-man firm in South Beloit. My starting salary was $200 per month with no expense account. This was sort of a disappointment because when I was in law school, my wife made $50 a week at the phone company and made $25 a week delivering packages. It was in essence a pay cut of $100 per month. But we knew this was just the beginning and sure enough after laboring in the law office for a year, my salary was increased to $250 a month. This was unacceptable, so I turned away from the law.
I went into cement construction with my landlord and I discovered that my original idea about manual labor was correct. This was not the right way to go. Every time I shoveled gravel or sand I said to myself, "Did I go to law school to do this?" We moved back to Downers Grove and I made the legal rounds again. It was the same story, so I switched to the insurance industry and was interviewed by Bruce Fawell. He was a supervisor at the Allstate office in Wheaton. Now my salary was $400 a month, a company car (my first new one) and an expense account. I thought I was in heaven. That turned out to be a nine-year interim job. With the encouragement of my wife, I quit and made the legal rounds again.
This time was different. I had become skilled in negotiation of personal injury claims and knew how insurance companies expected lawsuits to be handled. This factor along with my charm, got me a job at the relatively newly expanded firm of Corrigan, Mackay, Quetsch & O’Reilly. After three years of doing pretrial prep work, motions, and subro trials, I decided it was time to reach higher. My old friend Bruce Fawell had elected to become a magistrate when the 1964 Blue Ballot went into effect and sold me on the fun of being a judge instead of practicing law. I thought I would give it a try for about five years and then go back to practicing. It was going to be a training experience and besides, it paid $12,000 a year with no layoffs. So, in 1970 I put my name into the hopper with the Court and submitted my talents to examination by the DCBA.
Now the magistrate selection process at that time was that one of the circuit judges in a rotation process would pick the fellow of his choosing and the others would go along with it. I use the word "fellow" accurately because there were no female judges when I started. This process was under attack by the DCBA as not producing the brightest, the best, and it was Tom Kelleghan who was vociferously attacking it in DCBA articles (Those who remember Tom know how persuasive he could be.) He then took his war directly to the Chief Judge who was Bert Rathje. Bert, as he wanted to be called, said he would take it up with the other Circuits and assured him the process would be changed.
In the fall of 1970, the two new Circuit Judge vacancies created by the legislature the preceding spring, were filled by election with George Unverzagt and Alfred Woodward. They, I am sure, also brought some fresh thinking to the Eighteenth Circuit bench because they came directly from the ranks of practicing attorneys. In 1971, two of the lawyers recommended as "highly qualified" were yours truly, and Blair Varnes. Upon election we became the youngest new judge and the oldest. I was 37 and Blair was 67. I do not reveal anything which is not of record in my appointment by telling you Administrative Order 71-4 is missing one Circuit Judges signature. That of Philip Locke. Guess whose turn it was to pick the magistrate when the Circuit Judges decided to change the process. It was signed by Bert Rathje as Chief, Alfred Woodward, George Unverzagt, C. C. Rechenmacher. It became effective May 1, 1971. My judicial career was launched.
Others may touch upon the great changes in Illinois judiciary, but chronologically for this article, I must do it now. Prior to 1964 and the Blue Ballot, almost every governmental entity had its own trial judge. There was Circuit, Associate Circuit, Probate, County, Justice of the Peace, and Police Magistrates. This made for an interesting but hodge podge system for obtaining justice. I remember my first case back in 1957 where the judge was a justice of the peace, who was elected because he was a popular fellow who suffered brain damage while working at a local factory. He had no college or legal training and I don’t think he knew any legal jargon other than judgment for the plaintiff, which he did in one my trials when the plaintiff rested and before I started the defense. I rose with a law book in hand (everyone is prepared for their first trial no matter how small it may be) and to my astonishment he said "Don’t quote the law to me Black because I won’t know what you’re talking about. I go purely on horse sense."
I filed an appeal to the County Court in Rockford and under the existing law, I was entitled to a trial de novo, sort of like mandatory arbitration is today. Remember, I was in South Beloit, Illinois and my opponent was from Beloit, Wisconsin. Right, my opponent did not have an Illinois license to practice so I won by default; he could not appear and no one else wanted the case for a fee of a truckload of gravel.
In ‘64 the Illinois court system was streamlined and all of the JPs, PMs, et al. were eliminated and replaced with magistrates who served at the pleasure of the Circuit Judges. The next big step was the 1970 Constitution, which came about with delegates, two of whom were Anthony Peccarelli and Helen Kinney. This set up the two tier system of trial judges as Circuit Judges being elected and running for retention on their own record, and Associate Judges being appointed by the Circuits and given tenure for four years. The new constitution became effective July 1, 1971. So you see, I went from magistrate (May 1st to July 1st), to Associate Judge in two months. I must pause for a moment and tell you about Bruce Fawell. In the spring of ‘70, Bruce waged a political battle with LeRoy Rechenmacher for a Circuit position; both were Associate Judges. LeRoy won and was sworn in during January 1971. Then with the new constitution becoming effective six month later, Bruce became a Circuit Judge. He used to laugh and say I spent $12,000 campaigning for nothing.
Well, it’s time to move on to my first day on the job, which was May 1, 1971. I reported to the Chief Judge’s chambers to be sworn in. Bert, who was the Chief Judge at the time, said, "Are you ready?", and I said, " Yes sir." I have very fond and numerous humorous stories about Bert. He had a great sense of humor, loved to tell jokes at every meeting or pretrial conference and he always managed to put everybody at ease. (Although I understand Judge Bauer is writing an article about Bert for this issue of the Journal, I am still going to tell you some Bert stories.) But for now, it’s back to my first day. I had my best suit and tie on and my shoes were shinned. I was ready to be sworn in. Well Bert said, "Schwartz" (that’s German for Black and he always called me that) sign that anti-Communist form, the W4, and the Oath of Office and then go down to Phil Locke’s conference room and tell Gordon Moffet you are taking over as the new pre-trial judge. I said, "But I don’t even have a robe". He said, "Take one of mine out of the closet, but don’t take any without holes in it." (Bert was a prolific cigar smoker who would work in chambers a lot with cigar in hand, and as a result most of his robes looked like Swiss cheese.)
So I picked out a robe that had holes, but was not a total loss as of yet, and went to see Gordon. When I told him I was supposed to take over, he said, "What am I supposed to do?", I said, "Judge, I don’t know, but I suggest you ask the Chief". All of this occurred during the lunch hour and when Judge Locke returned, he was so mad he ordered the maintenance department to throw me and my desk out of his conference room and they did. "What do I do now?" I said to myself. I walked back to see the Chief and told him what happened. He exploded and went back to see Locke, with his robe flowing as he walked, and I thought "My God, the first day on the job and I will probably be canned." I stood aside in awe but for about 15 minutes. Bert returned and said, "I told him who is running this Courthouse, and you go back in there as soon as maintenance puts your things back in his conference room."
A short time later maintenance came back and moved my desk and cabinet back into Locke’s conference room. I was in business but the tension was heavy. I took over the call from Moffet, but it was really William Atten’s baby, who perfected it along with his secretary, Barbara Potts. Barbara was prone to mini skirts and did them true justice. While I labored away in the conference room with pretrials, with a room heavily laden with first and second hand smoke, Barbara sat in a hallway pew just outside my door. She would run in and answer my phone if it rang and she would line up the next pretrial conference attendees in the hallway. This was also the hallway to the four misdemeanor courts. So all of the defendants and their witnesses, who were not the cream of Wheaton society would walk past her. She had to put up with leers, glares, and mumbled comments about her figure. But she was a trooper and did not complain too much.
One of the really funny things that happened while I worked in this setting was on a Friday afternoon. Bert was gone so Al Woodward was the acting Chief Judge. Al called me and said there was a hearing for an emergency injunction on a case assigned to Phil Locke. He was on vacation and could not take the case because his firm was involved. It seemed it was me or nobody. So for the first time, I stepped into palatial courtroom 204 and sat upon the bench in what was a packed courtroom. All of the objectors, were residents from Naperville who did not want Com Ed to put up a high voltage line through their neighborhood. I listened to the arguments pro and con, and then denied the temporary restraining order on the basis that if Com Ed was not right, their lines could be taken down, therefore there was no showing of irreparable damage. That was when I first learned the meaning of not bowing to public clamor as a judge. When Judge Locke returned from vacation he was inundated with letters complaining about his ruling. It seems I forgot to change his name plate when I heard the case so everyone thought I was he. What happened after that was more tension and I lived the life of a trespasser in his conference room. Thinking back, if tobacco smoke damages ones lungs, I should have died a decade ago. This experience probably partially immunized my respiratory system for the new Courthouse’s HVAC problems.
As promised, three quick Bert Rathje stories and then I will go on. One of my first small claims cases involved a woman who was in her 50s, who had a sequined jump suit on and was suing the breeding service from which she had purchased a Yorkie for $100.00. She wanted her money back from the breeder because the dog, a male, had only one testicle. It seems this was not too uncommon in dogs for one testicle to remain in the abdominal area. So I inquired whether she intended to breed the dog. She replied, "No", but she had another dog at home, a poodle, and she did not want "anything funny going on". Solomonesque logic, I ruled that if a two testicle dog was worth $100, a one testicle dog was worth $50, so I gave her an award for $50. She looked at me and said, "I used to have great respect for the courts until I met you today. I said, "One more word lady and we will be talking together between bars." She huffed out and later I got call from Bert. He wanted to see me, so I went up and said "What do you want". He said, "Schwartz, how much payoff do you charge to swing a $50 case?". I started explaining what happened and he just leaned back and roared with laughter.
Next story: I was handling small claims cases out of that same conference room. A subro collection case came up where the defendant calls to say his insurance agent told him to get a continuance. I said it’s up to the attorney, who was Gerald McNichols, and who said, "No." So the defendant calls his agent, who asks Jerry, and he again says "No." I can tell Jerry is hot when he says, "And the same to you". Then Jerry hands the phone to me and this agent happens to be a County Board Member, who says, "Black, you continue that case or I will get you thrown off the bench." I said, "No way and you can do what ever you want". The guy hangs up on me and about ten minutes later Bert calls. He said, "Did you get a call from (name withheld on purpose)?" and I said, "Yes." He said, "What happened?" and I told him. Bert said, "You did the right thing Schwartz. I’ll take care of him." I tell you this one story to demonstrate how Bert had the uncanny ability to balance politics and courthouse operation, and keep everybody happy.
One time before I became a judge, Quetsch and I were going to defend a personal injury case with me as second chair. I got to Bert’s courtroom before Quetsch because he did not know he was going to be on trial until that morning, and he ran into town for a tie. I could tell that Bert did not recognize me and he said, "What’s this case all about?" I don’t know what got into me, but I said, "Mr. Quetsch is just too stingy with his offer and I was unable to settle with him." So when Quetsch shows up, (the plaintiff’s attorney had not yet arrived), Bert calls Jim in and says, "What’s this I hear about you. I always thought you were a reasonable guy and this man tells me you won’t make a fair offer," pointing to me. In response Quetsch says, "But he is with me". Now Bert swings around and looks at me, I say to myself "You idiot, you’re going to jail." Bert smiles and laughs out loud and I knew I was saved. Actually that was the point in our relationship where I became "Schwartz".
Another time when I was practicing, I had a divorce case and Bert tried to settle it. With no success, he says, "I guess we will have to go to trial." At that time jury trials were allowed in divorce cases and the plaintiff had demanded and paid for one. So, the plaintiff says to Bert, "This is a jury trial." Bert says, "You don’t have jury trials in divorce cases." The plaintiff says, "Yes you do." Bert says, "Not in DuPage County you don’t. The statement by Bert was with such force, the guy looked at him and said, "OK". That was when I realized the true meaning of sovereignty. So much is how something is said rather than what is said.
From ‘71 on, I found myself in almost every conceivable place, holding court in the old courthouse. I was later to be in a conference room on the first floor, then the first floor law library, made over, and later the first floor mens room remodeled as part of a reception and waiting room for the magistrates’ courtroom on the first floor north side. Then the two courtrooms were back to back on the southwest side with a connecting door. No chambers or washrooms existed for either courtroom, except the public restrooms across the hall. Some of you may remember when kindly Judge George Bunge would arrive in his courtroom with his street coat on while the room would be filled with lawyers and litigants. He would walk across the 20 x 20 room to a metal cabinet, open it up, take off his coat and suit coat and put on his robe. Then when he closed and latched the door to the cabinet, his bailiff would start, "All rise, the Honorable George Bunge presiding", and court was in session.
Once George Bunge paid a defendant’s judgment, who he had incarcerated for contempt of court for non payment. That incident was published in the local paper along with the process of small claims court issuing body attachments without rules to show cause. The Judicial Inquiry Board picked this information up on a clipping service and cited him before the Courts Commission. George, who was retirement age, said I guess I will just retire. I urged him not to do so, because the issue was very important to all of us. So he hired an attorney and said he would fight. I happened to be doing some research on the issue and found to my dismay that our local court rules authorized the issuance of body attachments in small claims cases without rules to show cause, if the defendant had been personally served on the petition for a body attachment. I called George, who was not aware of the rule. When the case came up, the Courts Commission threw it out when George’s attorney showed them the local rules.
Another time, when I was holding court in the northwest conference room on the first floor, a man burst in and said, "You’ve got to stop the judge across the hall, he is not following the law". The fellow was a Posse Commitatus member who ran across from a hearing in front of George Borovic Jr. I have a lot of stories about Judge Borovic, but I believe all who knew him, knew he was not someone you wanted to "mess with", given he did not have a sense of humor. Another time while I was in the same courtroom, we handled the County’s juvenile reimbursements. Then Assistant States Attorney Ed Bart would recommend I have a recalcitrant payer executed if he failed to pay, (You know, "bad guy/good guy" routine), I would give him one more chance to pay, and usually the County got paid. On this particular occasion we had about six of these juveniles waiting in the hallway because there was no room in the so-called courtroom. I could not give the defendant in question any more time, so I sentenced him to jail. The bailiff cuffed him and took him out past the other defendants waiting to be heard. I then told the clerk to go and get the next juvenile for hearing and the bailiff returned promptly and said they all had left.
Then there was the stint in the Gray Stone Building after the State’s Attorney moved out of his offices in Wheaton because his office out-grew the building. There was a lot of confusion as to who was to be where, etc. I was at this time assigned to the Misdemeanor Division and tried DUI cases one after the other. Doc Hopf was the SA at that time and he vowed there would be no deals, so there were trials instead. Then I was transferred to the Divorce Division in the old Treasurer’s office, known as the Win Knoch building. One day after three years in Divorce, the new Chief Judge, Bruce Fawell, called me up and said, "How would you like to have a jury call with the new general division I am creating?" My response was, "What did I do wrong." He said, "Don’t you want to get out of divorce?" and I said "YES." He responded, "Well you’re out" and that was that. My new home was courtroom 201.
201 sort of looked like a courtroom, but it left much to be desired. Whenever a train went by the noise was so great you could not hear the witness. So we would all stop when I played "traffic cop" with my right hand raised. Then after the train went by, my hand would go down and we would begin again. The air conditioning seldom worked right and we had no screens, resulting in flies and bugs coming into the courtroom and buzzing around everybody’s head when the windows were opened. In the late stages of Fall, the wasps would come out from the false ceiling and fly around. They were so lethargic it was sort of a game to see how many one person could kill. There were no judge restrooms, so when we took a break, the defendant or witness and I would stand shoulder to shoulder at the urinals. Once an attorney said, "They should give you guys washrooms." I said, "They did and you’re standing in it."
In 1984, while I was still in courtroom 201, the Illinois Supreme Court appointed me to fill Bruce Fawell’s Circuit Judge vacancy. It was a very exciting moment for me when I got the call from the Supreme Court. I had a jury trial in progress. My bailiff told the jurors, who stood up and applauded me. Those were some wonderful memories. After that I was given a choice of available courtrooms and I selected 304, which had been a bench courtroom but was converted fairly nicely into a jury room. I was finally living with my own chambers, reception room, secretary’s office, and washroom. This was first class. From there I went to 303 and it was even better and bigger. 303 and 203 were exact duplicates and the two biggest courtrooms in the new addition, (circa 1950s).
I became a member of the building committee in about ‘85 and voted that we opt for a new building and not try to remodel what we had. There were two reasons for that. First there would not be enough room to park or hold court in the old facility, and remodeling would make it impossible to hold any type of trial with the incumbent noise and dust. I knew this from Divorce court where remodeling had taken place. Before that, the cost proposed was several million dollars and now we were talking 50 million. Today that wouldn’t even buy you one decent fighter jet, but back then, it was like the end of the world. One county board member called it the Taj Mahall. It looked like that when we moved in, but life is never simple. People working in the building started to become sick with respiratory infections. It seems there was not enough fresh air being brought into the building. This is how we became familiar with the term SBS (Sick Building Syndrome).
We held meetings to discuss the number of employees involved and ran tests on those complaining to see if it was their imagination or real. Real won out and the process to correct the HVAC started. Experts were hired who came up with accusations and solutions. The original contractors and subs disagreed, so finally the modifications were made at the County’s expense and then a lawsuit was filed to recover the expenditures. Some of the subs settled, but the main focus was on the architects and engineers. The County went to trial against them and lost. Some people to this day claim they cannot work in the building because their respiratory senses have been sensitized to the point where they have trouble breathing.
Life for the Courthouse staff changed drastically in the new buildings. All of the in-house judges were located in one building and with suitable courtrooms. The secretarial crew was pooled and individual secretaries were no more. It was a considerable loss to some of the judges who were used to working with one secretary, and who knew all about the calls and how each judge wanted to handle them. I was one of those judges because what I moved from was drastically smaller than what I had. I remember the contractor showing me the new ceremonial courtroom and asking me what I think it would feel like to practice in a courtroom that size. I said "Cramped"; its about half the size of my old one and my chambers are about the third of the size. I have no personal washroom or secretarial office or waiting room. "But," I said, "this is not about me and three other judges, it is about the system and thirty three judges." Under the new plan, we adopted the pool concept for secretaries, which we later modified to assign secretaries to two or more judges but they still had to work in one big room instead of their own offices. The new concept helped in the handling of cases from a team concept as judges in the same division would help each other out when they were available, and thus a case that was ready to proceed to trial had a greater chance of doing so than before.
The evolution of case handling during my period of time, namely ‘71 to ‘95 was rather drastic. It started with the "trial call" concept, where a case was filed and, before trial, any motions pending would be handled by the "motions" judge. After the case had aged six months, or upon motion, the pretrial judge would initiate negotiations in the hope of settling the dispute without having to go through a trial. Since one judge did all of the negotiations, there was a degree of uniformity in recommendations to settle. There also was, however, a lack of initial power to force some settlements, as the only thing the pre-trial judge could do was to place the call on the master trial calendar.
Some where around 1981, Chief Judge Fawell initiated the "divisions" concept and individual case assignments. In this process the Clerk would assign a case to a specific judge upon filing. Some of the more knowledgeable attorneys would watch the rotation and wait at the counter until the judge that was favored would come up on the rotation. After that we randomized the system by pulling names out of a bowl and finally with the computers, it became high tech and one could not predict who the assigned judge would be. This new individual calendar concept pinpointed which judges were moving their cases and which ones were not, and needed help. It worked and reduced the pending cases drastically. The Court system was in a long protracted period of growth and when we started in ‘81 we were almost too large to be small and too small to be big.
In ‘84 more divisions were created and the former General Division which handled "L" cases and "CF" was split into the Law and Felony Divisions. I opted for the Law Division because that was my forte’. By the time we moved into the new courthouse, we had seven divisions and a number of female judges. Helen Kinney broke the ice back in about ‘75. Her husband Lester, also an attorney, used to say, "In our family, judging is women’s’ work". That line was always good for a laugh. I no longer was the youngest judge appointed because Charlie Norgle got the nod when he was 35 years old.
Looking back on my judicial career, I am delighted I chose it, because for me it was totally rewarding and I often think what my working life would have been like if I had not. There has been a change I noticed with the passage of time and I have attempted to discount the population growth factor, gender sensitivity, civility, and my aging. I believe that lawyers today do not have as much fun as they used to. I think we all have to lighten up a little and not try to find fault with one another. I know it is tough to have the type of comrade we had because of the number of lawyers, but I think with effort it can be done.
When I started on the bench, according to my count there was about 175 members of the DCBA and now I understand we have well surpassed 2000. When I started I knew almost everyone by their first name, however I used their surnames when addressing them. After awhile, it helped me to remember their names by writing it on the file jackets. Then the number of lawyers and law firms increased and I was relegated to "Counselor", so no one would be offended.
I know there have been a number or seminars on this issue but the problem still remains. Lawyers seem to spend an inordinate amount of time and effort in attacking each other as opposed to working with the facts in the elusive search for the truth. I trust that we can return to this mighty goal again as professionals; to address each other with civility and to have a laugh once in awhile, and not at each others’ expense but at things that are funny. Anyway, my wish is for all of you to enjoy your life’s career as much as I have mine. Good luck in that endeavor.
Judge William E. Black was appointed a magistrate judge in 1971 and then two months later, by operation of statute, was appointed an associate judge. The Supreme Court of Illinois appointed him a full circuit judge in 1984. He retired from the bench in 1995 after 24 years on the bench.