Dear Editor:

First, on behalf of our client, the Honorable John R. Downey, we comment the members of the Law Tribune Advisory Board for reconsidering their prior editorial and now recommending the reappointment of Judge Downey. We wholeheartedly agree that this reconsideration was necessary, and that the change in recommendation was warranted. In addition to the reasons given for reappointment, other facts germane to the issues raised also support a recommendation of reappointment.

Judge Downey has been harshly criticized by legislators and others for comments he made in court asking counsel to opine on whether illegal aliens were entitled, as plaintiffs, to use our court system. There is only one instance in which Judge Downey actually ruled on that issue, and he ruled in favor of the illegal alien. In Saint v. Lilly Transportation, the defendant filed a motion to dismiss (captioned as “Objection to Motion to Substitute as Plaintiffs Lack Standing Based upon their Illegal Status at the Time Suit was Filed.”) The concluding paragraph of the motion requested that “the court dismiss this action…” The motion is dated Nov. 6, 2006, and, if granted, would have denied access to the illegal alien suing for injuries sustained in an accident. The Case Detail from the Judicial Branch’s web site reflects that the court treated this objection as a motion to dismiss filed on Nov. 7, 2006. The next day, the motion was denied by Judge Downey.

Also, the dissenting opinion of the Honorable Francis McDonald, then associate justice of the Supreme Court, in the 1998 case of Dowling v. Slotnik is relevant to this issue. In that case, Justice McDonald reasoned that an illegal alien engaged in an illegal contract of employment was not eligible for workers’ compensation benefits. He concluded his opinion: “Concentrating our fire on the employer while as the same time conferring employment benefits on an illegal alien does not support our policy of controlling our borders. It is a mystery to me how providing state-mandated employment benefits to illegal aliens will discourage them from coming to our shores or remaining here.”

Whether one agrees with Justice McDonald is beside the point. What is on point is that the issue of the rights of illegal aliens is not, perforce, an issue outside the bounds for appropriate comment and consideration by members of the judiciary. It should also be pointed out that former Chief Justice McDonald, appropriately, was never, to our knowledge, questioned about his dissent, nor was it used by anyone to question his fitness to serve as a justice of the Supreme Court, much less chief justice.

A robust exchange of ideas and arguments is essential to a system of justice that imbues certain selected persons with the responsibility of making judgments as to legal rights and duties. It is a service to the bar, the judiciary and the public for the Law Tribune to base its editorials on accurate and pertinent facts, as opposed to politically-charged media reports, and/or what may be personal opinions, and to defend a system of justice in which judges are not intimidated from expressing themselves as they seek to do justice for all.

Austin J. McGuigan

Glenn E. Coe

Rome McGuigan PC