By ED NASH
Political editor of The News-Sun, Waukegan, since 1969, he has covered the Illinois General Assembly since 1959. Nash is a graduate of Yale and joined The News-Sun in 1955.

Retiring justice of Illinois Supreme Court

Walter V. Schaefer

The judiciary has improved, the executive branch is the same, and the legislature 'doesn't do the job it should do,' says Schaefer. With keen intelligence and soft-spoken passion, he reviews his tenure as justice as he has reviewed each case before the bench

WALTER V. SCHAEFER, the "dean" of the Illinois Supreme Court who retired December 6 after more than a quarter-century of service, likes to quote the Latin words over the door at the rear of the courtroom in Springfield — Audi Alteram Partem. "Hear the other side" is what they mean. The Supreme Court chambers are so designed that they are dominated by the bench of judges, Schaefer says, "but those words dominate the judges."

They certainly have dominated the Lake Bluff jurist himself who has had experience in all three branches of government — the vast majority of it, however, in the judicial branch. Although he is devoted to impartiality, Schaefer believes that judges must do more than tote up facts. As he wrote in Listen to Leaders in Law, "The judge's 'open mind' is not, of course, an empty vessel into which content is poured by lawyers. Rather, it is an active mind, trained in the art of advocacy, that weighs the arguments as they are advanced, but consciously strives to keep judgment suspended until the case is fully heard."

Schaefer also talked about legal trends, the free press/ fair trial controversy and how judges themselves ought to be selected. Back in his top-floor offices of the Civic Center in Chicago, Schaefer, his tie loosened, leans back and reflects on his life, more than one-third of it on the state Supreme Court, and the philosophy he has evolved through the years.

Born in Grand Rapids, Mich., he graduated from high school in Chicago and received his college and legal education at the University of Chicago. Admitted to the Illinois Bar in 1928, he was a statutory draftsman for a year with the Illinois Legislative Reference Bureau, the bill drafting arm of the Illinois General Assembly. Then he was in private practice for five years, was a litigation attorney for the Agricultural Adjustment Administration for a year, served with the Reconstruction Finance Corporation for two years and as an assistant Chicago corporation counsel for three years. In 1940 he began a law professorship at Northwestern University. He stayed for 11 years, although he left temporarily to serve for a year as a referee in bankruptcy in U.S. District Court and for two years to chair the Illinois Commission to Study State Government which became known as the Schaefer Commission.

It was March 21,1951 — more than a quarter-century ago — that the late Gov. Adiai E. Stevenson appointed him to the Supreme Court. A Democrat, Schaefer was elected that June and, when he came up for election again in 1960, he was nominated by both the Republican and Democratic parties and reelected. In 1970, he was retained on the bench. Because of his age, Illinois law required his retirement in December, when he reached age 73.

Schaefer has long been considered by legal scholars as one of the two or three top state Supreme Court justices in the United States. His abilities were recognized shortly before he completed two decades on the high court bench when he received the American Bar Association's highest award, the ABA Medal. Schaefer was only the 34th American lawyer to receive the medal. The award placed him in company with Elihu Root, who received it in 1930, Oliver Wendell Holmes (1931), John Henry Wigmore (1931), Roscoe Pound (1940) and Charles Evans Hughes (1942). The ABA citation described the Lake Bluff jurist as "a lawyers'judge who has given distinguished service to his state and his nation, service worthy of the high standards which our nation expects of its judiciary." I

His most important cases
Described variously as soft-spoken, thoroughly knowledgeable, scholarly, probing, human, humane, Schaefer does not seem to take himself nearly so seriously as the award citation does. But in discussing the most significant decisions of his career all of these qualities were apparent, especially his keen intelligence and quiet compassion. Asked which of his cases he considers most important, he smiles and says: "The opinion a judge is working on at that precise moment is always, to him, the most important. By the time it becomes news generally, it's stale to him." '

Regarding the way he goes about his job as a jurist, he says that, after years of experience, it is "a seat-of-the-pants

8 / January 1977 / Illinois Issues

feeling" whether an appeals court should hear a case. When it comes to writing an opinion, Schaefer says he usually goes through "a good many drafts... I can write better if I work with something on paper in front of me." He says, "Usually the essence of a case boils down to one or two sentences. You should write an opinion that is understandable. I usually try, if I have time enough, to write in words of one syllable. I think it's important, I think it helps."

After he has warmed to the discussion, Schaefer says that one of his very first cases on the state's highest court (People ex rel. Wallace v. Labrenz, 411 111. 618 (1952)) "sticks in my mind." It involved an 8-day-old child, born with an Rh blood factor of parents with religious scruples against blood transfusions. The trial court ordered a transfusion. It was appealed with the argument that it would be an infringement of their religious beliefs. "I refused to stay the order," Schaefer recalls. "The transfusion went forward — and the child lived. It was," he says, "one of the most dramatic opinions — at least, to me."

Another case, Amann v. Faidy, 415 111. 422 (1953), that Schaefer considers significant concerned a baby who was unborn when the mother was physically injured. Subsequently, the baby was born alive, although injured because of the mother's condition. The question was whether a claim against the party responsible for the mother's injury was justified. And, although Illinois law had previously not allowed such claims, Schaefer held that there could be recovery. It was the first such case "and something of a pathbreaker," he says, adding that, in later years, such decisions were extended to apply to a baby who dies in a mother's womb.

A third case that Schaefer decided enabled the court, he says "to clear up a very bad situation in the law of Illinois" that was established in Herb v. Pitcairn, 892 111. 138 (1945). The 1945 case involved an injured railroad man who brought legal action in a city court. He won a verdict which was appealed, reversed, and sent back to the trial court for a new trial. Subsequently, it wound up in circuit court where the railroad moved for dismissal on the ground that the statute of limitations had run out. The case was dismissed and the state and U.S. supreme courts agreed with the dismissal.

"Later," he says, "we had a case [Roth v. Northern Assurance Co., 32 111. 2d 40 (1964)] involving a similar question. The trial court dismissed it; we reversed that. I wrote the opinion and I was very happy to have the opportunity to point out that, in applying the statute of limitations, you must always be conscious of the purpose of the statute. If it's just applied blindly, you're apt to get very bizarre and unjust results." In effect, Schaefer says, his ruling was that "if a man files suit in the wrong court, that stopped the statute of limitations."

Most cases do not get so far as the Supreme Court, of course. There was a time, Schaefer remembers, when he read every single petition for the high court to consider a case. "I read the Appellate Court opinion and glanced at the petition and, in 75 per cent of the cases, I could decide right at that point whether the Supreme Court should take it or not." He says, "If it's of major importance to Illinois, we automatically take it. Often, if there's one basic constitutional issue in a-case likely to go to the U.S. Supreme Court, I vote to take it. I'd rather have our court pass on anything going to the U.S. Supreme Court."

In the last few years, however, he says, he has had his two law clerks read most of the petitions. "They dictate notes. Sometimes I agree, sometimes I disagree. If there's any doubt, I look at the petition. If I disagree, it's usually that I'm aware of some situation of which they are unaware ... a festering problem throughout the state. I may know an opinion the court is adopting that will settle it." When it comes to writing an opinion, Schaefer says, "Sometimes I start writing it on the train or plane, while it's fresh in my mind; but that's rare. Usually, I turn cases over to my law clerks. Basically, I like them to feel the responsibility, but, in the end, it has to be mine. Usually, I have a pretty fixed impression in 80 per cent of the cases."

His value to the law
At times, he says, he and his law clerks "argue things thoroughly. We sometimes have sharp discussions." Schaefer recalls one occasion involving Adlai E. Stevenson III, his former law clerk and now U.S. senator who was also son of the man who appointed him to the high court. "People speak of him as pusillanimous, equivocal and unsure of himself," he says, "but I remember very vividly ... he insisted a particular case should be decided in a certain way. I felt otherwise; he came back, politely and insistently, and — dammit — he persuaded me, and the whole court was persuaded."

Although the essence of a case can generally be incorporated in relatively few words, Schaefer says it must describe what it is about "in deference to the authorities" and to tradition. "I think I tend to write less for the attorneys [today] perhaps than for the attorneys of the future," he muses, emphasizing that a judge has "to be very conscious and careful to write tightly because what he says is going to be used in the future by other judges." He adds: "I think my greatest value to the court and the law has been in visualizing and shaping language so it will not be used inappropriately in future cases — avoiding the use of the inadvertent dictum."

As a past or present practitioner in all three branches of state government, what does Schaefer think of them? "I don't think our legislative body does the job it should do," says the former drafter of proposed laws. "It's not doing as good a job now, with staffs, as it did years ago when legislators performed without them." Conceding that maybe this is a "harsh judgment," he still sees "so much buck-passing and so little responsibility."

"Perhaps, things have become more partisan and they've always been too partisan," says Schaefer. As a supreme court justice, Schaefer says, "You come

January 1977 / Illinois Issues / 9

Schaefer: 'regulation of insurance companies is one of the weakest spots in state government in Illinois'

to feel a sympathy and affection for the people of Illinois. You hate to see their interests jeopardized for minor political advantages. What appears to legislators to be a major political coup is just utter nonsense so far as citizens are con- cerned."

As for the executive branch, which was probed by the onetime Schaefer Commission, he does not think the quality has changed very much. He says, "I think some bad spots still exist. My personal appraisal — a personal preju- dice — is that the regulation of insur- ance companies is one of the weakest spots in state government in Illinois." And, he says, public aid and its adminis- tration are "extremely difficult. Oppor- tunities for fraud are all over." Only time will tell about the Environmental Protection Agency, he says. "It's ex- tremely important and it's started well." The new constitutional amendatory veto power for the governor is a "tremendous improvement," he says. But drawing the line between such a veto and writing new legislation will have to be decided on a case-by-case basis. "I don't know how you could devise language to eliminate the gray area," says Schaefer, so the governor isn't drafting new legislation — which is not the duty of the executive.

His opinions of judiciary
The judiciary, his own branch of government, has improved, Schaefer believes. "Criminal justice is infinitely better," he says, pointing to the virtual elimination of claims of physical brutality in confession cases "because of the attention paid by the U.S. Supreme Court to due process and constitutional guarantees." Both the Illinois Courts Commission, which decides cases involving judges, and the state's Judicial Inquiry Board, which investigates these cases, are doing a good job, Schaefer says. He thinks the original feeling of "hostility" by judges toward the inquiry board has now dissolved.

What about legal trends during the years the Lake Bluff jurist has been on the bench? "I think, unquestionably, the law has become much more sensitive to the rights of individuals," he says. "This has been dramatic in the field of criminal law and also quite apparent in the field of civil law. Maybe, in some cases, the pendulum has swung too far; the law has a way of doing that.

"The consumer is better taken care of now, in class actions," he says, adding pointedly: "There is a strong feeling that the trend has gone too far and class actions are being abused — the same with medical malpractice cases. There probably is abuse; the pendulum is going to swing back."

On one of the continuing issues of the day, free press and fair trial, Schaefer says: "I don't think there should be a controversy. A fair trial is critically important. There are cases where existence of free press is critical to a fair trial." But, he adds, "I think the press abuses its constitutional privilege. Too often it wants to print the sensational details in such a way it is impossible, or nearly so, to select a fair jury to try the case. You have to have the appearance of a fair trial, not just a fair trial. It's important not only that justice be done, but that justice be seen to be done."

Labeling the method of selection of judges "an extremely difficult question to answer," Schaefer is adamant on one point: "Having to be nominated in a party primary is the worst feature of the system. I'd have them appointed for life. I see no basis for the election of judges," he says, stipulating that he means lifetime appointments for all three levels in Illinois — circuit court, appellate court and Supreme Court. He suggests some sort of "policing mechanism" for judges with lifetime tenure and says that, perhaps, "it might be desirable to go into the quality of their work. It might be, it might not."

Asked about the jury system, Schaefer points to a lecture he gave earlier in 1976 in which he said: "The jury is an accustomed form, but the time is ripe to consider whether that form, valuable as it may be in criminal cases, has not outlived its usefulness in the world in which we live today." With or without juries, as Schaefer writes in Listen to Leaders in Law, a judge is ever beset with "an unceasing, inexorable demand for decision . . . [and] responsibility for an ultimate decision forces ... an instinct for objectivity."

And there is always work for a judge. Paraphrasing a line from deToqueville's Democracy in America, Schaefer says, in the United States "almost every question sooner or later becomes a legal question." Further, most nonlawyers may not realize, as the retiring jurist puts it, that "the backbone of legal education in this country is not a study of the laws enacted by legislative bodies, it is rather a study of the opinions of the courts and the common-law practice."

Perhaps the final sentence Schaefer wrote in Listen to Leaders, although he most certainly did not intend it that way, applies very much to the veteran jurist himself. Discussing great judges, he writes that "their inner satisfaction, which they do not articulate even to themselves, comes from devotion of their best efforts of mind and heart to the service of the ideal, unattainable perhaps, but still inspiring, of universal justice for all men." ž

THE NINE-MEMBER Illinois Supreme Court has three new justices who were elected in November, but the court will maintain its party split of four Democrats and three Republicans. Once elected, justices as well as other Illinois judges run for retention without opposition. Justice Ryan won retention in November. The retirements of three justices, Walter V. Schaefer and Thomas E. Klucynski(both of the First District) and Caswell J. Crebs (Second District) resulted in the new men elected to the bench. The justices and dates their terms expire are: First District --- William G. Clark(D., Chicago) 1980, James A. Dooley(D., Chicago) 1980, Daniel P. Ward (D., Chicago) 1984; Second District---Thomas J. Moran (R., Waukegan) 1980; Third District---Howard C. Ryan (R., Tonica) 1986; Fourth District---Robert C. Underwood(R., Bloomington) 1980; Fifth District---Joseph H. Goldenhersh (D., East St.Louis) 1980

10 / January 1977 / Illinois Issues