The Journal of The DuPage County Bar Association

Back Issues > Vol. 22 (2009-10)

State of the Courthouse 2010
By Honorable Stephen J. Culliton, Chief Judge

Good afternoon my fellow lawyers. I thank President Kent Gaertner and the entire Bar Association for the opportunity to present this State of the Courthouse address. I am unable to be there because of a conflict with a previously scheduled out-of-state family related event for which, I might add, non-refundable tickets were purchased. The conflict arose because of, if you can believe this, a miscommunication between my wife and me regarding dates. Ellen has explained to me, and instructed me to pass on to you, that the fault is entirely mine. I strongly suspect she is correct.

In any event, I thank Judge Popejoy for most capably presenting this address.

I have concluded by personal observation that "state of" addresses are, by their nature, mostly dull stuff. This is true whether it is "State of the Union;" "State of the State;" "State of the Budget;" or, as you will soon find out, and no doubt agree, "State of the Courthouse."

In any event, here goes.

The single most important aspect of the state of our courthouse is the state of our judiciary.

Excluding Justice Burke, who is on assignment to the Appellate Court, our Circuit has fourteen circuit judges and thirty associate judges. The performance of these men and women in the day-to-day discharge of their assigned judicial duties is, at the core, the real measure of the state of the courthouse. My comments here relate to the methodology of the assignment to those duties.

As I have often said, the one thing of which I am certain as it relates to the duties and the authority of the position of Chief Judge, is that he or she is responsible for assigning each judge to his or her caseload. It is, of course, the hope that these assignments will match the particular skills of a judge to the call to which the judge is assigned. It is akin to the eminent domain concept of "highest and best use." It is my belief that it is more likely a judge will well perform his or her duties if he or she is, in the general sense, "happy" with the particular assignment.

Taking this into account, we have modified the protocol by which assignments of associate judges are made. We have moved from a three year "rotation" procedure to a three year "review" procedure. Prior to this change, it was the policy of the Chief Judge’s Office to rotate each associate judge from his or her assignment after he or she had served in that assignment for three years. The thought behind that program, which is not without merit, was that judges, if rotated, would be better trained to handle varied assignments and that judges who were not as happy in a particular assignment as they might otherwise be would have the promise of change.

Of course, the flip side of that is that judges who were happy in a particular assignment would be moved in spite of the fact he or she was well-satisfied with, and comfortable in, his or her current assignment.

With the new "review" procedure, after three years in a given assignment a review will be conducted as opposed to an automatic rotation being implemented. At this review, consideration will be given to how well the judge has performed in that particular assignment. This will be, in part, determined by discussions with the judge’s Presiding Judge as well as a review of input from attorneys who practice before the judge. Also considered would be the judge’s particular preference, that is, whether or not he or she would like to stay in the assignment or be moved to another assignment. In addition, all other things being equal, if two judges desire the same assignment, the likelihood is that the more senior associate judge would get the call.

There has been only one review period under the new protocol. As it happens, eight of the nine associate judges who were up for rotation (now review) preferred to stay in their current assignment. Each of the eight, by my review, performed well in that assignment, and as a consequence, each was again assigned to his own call for another three year period. We were also able to accommodate the desire of the ninth judge to be moved to a call of his choice.

I am fairly certain that, if for no other reason than the sheer number of judges involved, in the next review, things will likely not be as simple as they were in the first review. However, I believe this "review" protocol, as opposed to the "rotation" protocol, better serves the litigants, the attorneys and the judges.

Our efforts to implement this review procedure will more likely succeed if you, the practicing members of the Bar, are provided an opportunity to have input. The simplest and most straightforward procedure for comment would be to share with the associate judge’s Presiding Judge your observations and opinions. While constructive criticism and fair praise are welcomed, discussion regarding the result of a particular case is not.

I would like to extend my thanks to Judges Equi and Anderson for highlighting the challenges of an assignment to the Domestic Relations Division, and to be frank, raising the desirability of a Domestic Relations assignment. This has resulted in judges assigned to Domestic Relations indicating they would like to remain there and in other judges requesting to be reassigned to that division. Because of the work of both Judges Equi and Anderson, as well as the judges in the division, Domestic Relations is no longer the stepchild of our divisions, which has helped greatly in making the review protocol workable.

It is my intention to continue implementation of the review protocol but it should be noted, as I previously mentioned, any Chief Judge may institute his or her own procedure.

On another matter – In last year’s address, I gave an update on the Cindy Bischof law, its purpose, its flaws and its implementation in our County. I stated:

"We have been in touch with the legislature to point out the flaws in this legislation and hope for meaningful amendments so that no victim is misled with respect to the extent of her protection."

I am happy to report there are times when the process actually works. This is such a time, and amendments were enacted which:

1. Make discretionary, rather than mandatory, a risk assessment evaluation for the subjects of the Act, i.e., persons charged with a violation of an order of protection.

2. Actually provides twelve risk factors to be considered at bail hearing, including: history of domestic violence, mental health of the person, history of violating the orders of any court, access to deadly weapons or using deadly weapons, history of abusing alcohol or any controlled substance, severity of the alleged incident that is the basis of the offense, etc.

3. Now allows the risk assessment to be conducted by an approved partner intervention program provider, pretrial service, probation or parole agency as opposed to the very limited number of persons approved as risk assessors in the original Act.

4. Provides for monies paid by the offender to be used by the County, which is bearing the cost, instead of being sent to the State.

This Act is now an unfunded "non-mandate", i.e., they have provided no funds for that which they have given us discretion to do or not do. We are making every attempt to comply with its suggestions and with the spirit of the law in a prompt and fiscally responsible manner.

The next topic is Pretrial Services –

Last year’s address announced the implementation of a Pretrial Services Program operated under the auspices of the Probation Department. Its effective start date was just about a year ago, so it has been in effect for almost all of 2009.

The basics of the Program are two-fold: (1) To provide judges, for bond setting purposes, more extensive and verifiable facts related to the alleged offender; and (2) To provide the judges with meaningful monitoring devices to assure that the conditions of bond are met.

Its purpose is to assure that defendants are not unnecessarily detained prior to trial.

I would like to report to you the results of the Pretrial Services Program in its first year of operation.

Our records reflect that almost 1,200 bond reports were prepared and submitted to the court. Of the 1,200 defendants for whom reports were prepared, 200, who without the pretrial program would have remained incarcerated, were released from jail on bond. Another 330 defendants were sentenced and released from jail on the date the report was returned to court. That date was almost always not more than ten days after the defendant was in bond court.

It is estimated that the out-of-pocket daily cost of keeping an inmate in our county jail is $110. It is reasonable to conclude that, at a minimum, the 332 defendants released after only a ten day jail stay would have been there at least an additional twenty days. This is so because, traditionally, before Pretrial Services, the first court date for a defendant failing to post bond was set about thirty days out. This amounts to a reduction in pretrial incarceration costs of 20 days x 332 inmates x $110/day or over $700,000.

As to the 200 defendants who were released on bail, but who were not sentenced, their stay in jail was reduced on average by 63½ days. The average pretrial stay of an inmate in DuPage County jail before the program’s inception was 73.5 days. The dollar reduction from this aspect of the Program equals 63½ days x 200 defendants x $110 or approximately $1,400,000.

I am loathe to tout the Pretrial Services Program as a program which reduced the expense of pretrial incarceration by over $2 million. I am not, however, hesitant to say it has had a substantial impact on the cost of the operation of the jail and on the issue of jail crowding.

Even putting aside the arguable financial benefit, over 500 defendants were released from pretrial incarceration who might otherwise have been, as the Act describes, "unnecessarily detained". This is a profound benefit to our criminal justice system generally and to the 532 souls who gained their earlier release specifically.

There appears to be another benefit. There were approximately 1,500 defendants who have been supervised on bond in the community. That is, they were subject to the monitoring aspect of the program, with oversight while on bail, by the seven supervision officers.

Of the 1500, 106 (or 7%) were arrested for new offenses while on bond. This 7% can be compared to the national average of 17-21% without pretrial review.

Of the 1500, 56 defendants (or 4%) failed to appear in court. This 4% can be compared to the national average of 20-28% without pretrial review.

We believe the program works.

I’d like now to give you a brief update on our new Drug Court Track 2 Program.

Drug Court Track 2 was designed as a sentencing alternative for the first time felony offender who may not be eligible for First Offender Probation pursuant to Section 10 of the Cannabis Control Act or Section 410 of the Controlled Substance Act.

Track 2 began processing cases in June of last year and to date there have been thirteen applicants, nine of whom have been accepted into the Program. Though the offenders are in only the early stages of the Track 2 Program, all nine are presently in compliance.

An additional benefit and motivation for successfully completing this Program is that the waiting period for seeking an expungement of a Section 10 or Section 410 Probation is ameliorated through a Track 2 disposition.

Also, offenders who are sentenced to a period of probation, even for a misdemeanor drug case, may find such a sentence jeopardizes their eligibility in applying and obtaining Federal Grants for their college education. Since many first time offenders may still be considering a college education, a Track 2 disposition helps keep open the possibility that they can apply for educational funding.

Every criminal law practitioner should be mindful of the opportunities presented by Track 2 of our Drug Court Program.

Beyond Track 2, both our specialty courts, which were previously presided over by Judge Dwyer, and are now presided over by Judge Mitton, are doing very well. Overall, in our Drug Court and in MICAP (Mental Illness Court Alternative Program), admittees and court graduates were up in 2009 over 2008. We sincerely thank Joe Birkett and his State’s Attorney’s office for their great contribution to this program.

Before I get to what you have all been anxiously awaiting, a report on the number of cases filed, and maybe even a comparison to the year before, I would like to briefly update you on some personnel matters.

I don’t know if it’s just me or something I might have said, but two of the persons most critical to the operation of the Chief Judge’s Office have left or are leaving. Chuck Hoffman, who was an outstanding Trial Court Administrator, retired on January 8 of this year. We welcome John Lapinski to the position and he is doing a great job.

Also, Lois Doerr, who has served as Administrative Assistant to the Chief Judge for twelve years is retiring on March 31 of this year. She has been my, and previous Chief Judges, right hand person and a fixture in the Chief Judge’s Office. Lois will be greatly missed.

We also in 2009 lost Judges Abraham, Dwyer and Dockery to retirement; gained Judge Guerin as a Circuit Judge; had Judge Stock placed on disability; welcomed Judge Noland to the Law Division as a recall judge; and gained Judges Marchese and Miller as new Associate Judges. We wish all of them the best.

Get your pens and paper ready.

In 2009, filings on felony cases were slightly down from 3500 in 2008 to 3200; misdemeanor filings remained essentially the same at 7500; DUI’s were down to 5200 from 6200; and traffic cases were down slightly at 184,000 cases.

In the civil area, arbitration filings were up over 1,000 at 3,800; chancery cases were up over 1,200 at 6,400; dissolutions remain the same at about 2,700; and law cases and small claims case filings basically were constant at 6,600 and 9,500 respectively.

Next, I am going to take this opportunity to again extend the sincere thanks of the entire judiciary, and all the citizens of the county, to this Bar Association and its members. Actions speak louder than words, and you have acted to assist pro se litigants in Night Court and pro se folks through the assistance desk. In 2009, I had the privilege, along with Judge Anderson, of signing 100 Certificates of Appreciation for lawyers who gave of their time and their effort to assist the court and 109 Certificates of Appreciation for the help desk. Your contribution is sincerely appreciated.

Three things to wrap this up.

First, Number 8 from the "2,548 Best Things Anybody Ever Said" (you probably recall that seven were used up at my first State of the Courthouse, also without any segue).

"The less things change, the more they remain the same."


Second, if you have any questions, Judge Popejoy will be more than happy to field them all; and

Third, we will have another exciting State of the Courthouse message next year which, God willing and communications repaired, I will present in person.

Thank you all for your kind attention.

DCBA Brief