Mike McHaney for 5th Appellate District Court 2022

This interview was conducted by Reed Sutman on July 28th, 2022. This is a nearly complete transcript of the interview, with some minor edits for readability. Many filler words have been removed, some answers have been paraphrased, and most questions have been paraphrased. Quotes, unless otherwise noted, are quotes of McHaney. You can listen on YouTube

What does an appellate judge do?

• court reporter takes record of everything said in circuit court
  • that record is given to the appellate court
  • justices read that record & use that record to determine whether the circuit judge made any errors
  • ensures rules of evidence were followed
  • ensures process was fair & constitutional and either affirm what was done in the lower court or reverse it outright or reverse it and remand it back to the lower court for further action "consistent with what they rule"

In your words, what does it mean to be a 'constitutional originalist'?

"Constitutional Originalist, in my words, I can't put it any better than the actual dissent by Justice Benjamin Curtis in the Dredd Scott case, he said:"

"When a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean." - Written in the Dissent of Dred Scott v. Sandfor, paragraph 679, read aloud by McHaney

McHaney: "Originalism simply re-enforces what John Locke wrote:" "Freedom of men under government is, to have a standing rule to live by, common to every one of that society ... and not to be subject to the inconstant, uncertain, unknown, arbitrary will of another" - written by John Locke, section 2022, read aloud by McHaney

"Basically, originalism simply requires the court to interpret the constitution based upon the meaning it was given at the time of ratification"

Recommended Listening: Justice Ginsburg & Justice Scalia debate judicial philosophy, and Justice Breyer & Justice Scalia debate judicial philosophy. Justice Ginsburg viewed the constitution as expressing values which should be extracted and applied to our circumstances today. This interpretation is sometimes referred to as "living constitution". I recommend U.S. Supreme Court of the Opposing Viewpoints series for an introduction to judicial philosophies, available at the Decatur Public Library.

How does constitutional originalism relate to legislation that has been passed since the constitution?

"Actually, that goes to Jefferson's warning to us that to take a single step beyond the boundaries imposed by the constitution is to take posession of a boundless field of power, and a classic example of that is what we now live under, which is the administrative state. Congress has delegated responsibility, authority under the constitutional laws; Congress has delegated that authority to all of these administrative agencies and these beuracrats who issue these rules, mandates, and circulars, and the like which have the force of law, but which are implemented by people who never appeared on a ballot or got a single vote. That to me is the classic example of going beyond the boundaries of the constitution, the administrative respect with respect to legislation."

How does the view of being a constitutional originalist relate to precedent in regard to previous supreme court rulings?

"Excellent Question, and I can't think of a better example, a better way to answer that than the Supreme Court's recent decision in Dobbs versus Jackson Women's Health Organization. The dissent, people that wanted to uphold the / relied upon the doctrine of stare decises, which means you have to strictly go by prior supreme court decisions so people know what to expect and know what the law is; obviously that cannot be absolute. If that was they case, we would still have Dredd Scott or Plessy versus Ferguson. Here's what Justice Alito and the majority said in Dobbs and I think is brilliant actually: "

"Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division."

"It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. 'The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.' Casey, 505 U. S., at 979 (Scalia, J., concurring in judgment in part and dissenting in part). That is what the Constitution and the rule of law demand."

McHaney: "Roe is a classic example of the judicial branch of government exceeding the boundaries of the constitution and creating a right that appears nowhere within our constitution. I believe the Dobbs decision was brilliant."

The above quote was written in Dobbs V Jackson and spoken by McHaney. Opponents of Dobbs, supporters of Roe v Wade, often argue that the right to abortion is found in the right to privacy - the right to make private medical decisions without government intrusion. Planned Parenthood v. Casey is a 1992 Supreme Court decision which refined Roe v Wade's ruling.

Do you believe that Congress or state legislatures have the authority to protect access to abortion?

"One thing in the Dobbs case that I think is incredibly significant that noone is talking about and noone's quoting, and that's this quote from the opinion. To me this, this is huge. The court stated quote:"

"Our opinion is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth." - written in Dobbs & spoken by McHaney

"What the significance of that is, the next huge titanic court battles are gonna be over, when states enact legislation regarding abortion, some are going to allow abortion, 'partial birth abortion', some states will prohibit abortion at conception. Those questions, those issues, will again work their way up to the supreme court. This is interesting too. The majority in Dobbs said this:"

"According to the dissent, the Constitution requires the States to regard a fetus as lacking even the most basic human right—to live—at least until an arbitrary point in a pregnancy has passed. Nothing in the Constitution or in our Nation’s legal traditions authorizes the Court to adopt that “ ‘theory of life.’ ” - written in Dobbs & spoken by McHaney

"That speaks volumes about how the current Supreme Court, United States Supreme Court, might address these upcoming issues. All that Dobbs did, the only thing that Dobbs did was simply return the issue of abortion to the states. The tenth amendment says 'what is not enumerated, the powers not given to the government, to congress, are reserved to the states and then the people'. That's all Dobbs did was say 'it's up to the states to decide the abortion issue and enact whatever legislation they deem appropriate after debate and input by the people'."

The dissent in Dobbs v Jackson argues "Today, the Court discards that balance [between the rights of a pregnant person and the rights of a fetus]. It says that from the very moment of fertilization, a woman has no rights to speak of." - provided here for context; this was not provided by McHaney.

Considering Illinois has legislation from 2019 protecting access to abortion, how do you believe that Dobbs vs. Jackson will affect abortion rights in Illinois?

"Actually, I don't think it will affect abortion rights in Illinois. As I said, the court simply returned the issue to the states. The Illinois Legislature has enacted this statute and the issue will be whether it violates some portion of the Illinois constitution. That issue's yet to be decided."

See the Reproductive Health Act, IL SB25, 101st General Assembly.

I understand you are currently a circuit judge and were previously a chief judge for the 4th Judicial Circuit, so why are you now running for Appellate Court instead of staying in the Circuit Courts?

"In the summer of 2020, I was assigned to the daily call in Clay County Illinois and while there, I happened to just randomly be there asssigned when the Bailey vs Pritzker case was filed in Clay County. I ruled that Governor Pritzker's mandates and lockdown orders were unconstitutional. In the winter, in December of 2020, while guest hosting on the Rush Limbaugh Show, Mark Stein, guest host, quoted from my ruling and made some very flattering praises for me, and that was very flattering and I was indeed honored, but I thought to myself, what does that say about the state of our third branch of government that a judge from Southern Illinois is singled out for such praise just for having the courage to uphold the constitution."

"Now at the same time I was getting lavish praise on the Rush Limbaugh show, northern newspaper editorials were calling me that hillbilly judge in Southern Illinois. I'm not running for the appellate court because i got accolades on Rush Limbaugh. I decided to run when I saw all these judges and courts refuse to even hear those election challenge cases. When the United States Supreme Court refused to hear the election challenge in the case of the Republican Party of Pennslvania versus the acting Secretary of Pennslvania, Justice Thomas dissented, he said this: "

"One wonders what this court waits for. We failed to settle this dispute before the election and thus provide clear rules, now we again fail to provide clear rules for future elections. The decision to leave election law hidden beneath a shroud of doubt is baffling. By doing nothing, we invite further confusion and erosion of voter confidence. Our fellow citizens deserve better and expect more of us." - written by Justice Thomas, recited aloud by McHaney.

Note: Worldtribune.com staff writes "Trump-nominated Justices Brett Kavanaugh and Amy Coney Barrett sided with the liberal justices in refusing to hear the cases. Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas dissented."

McHaney: "I couldn't agree with him more. I'm not saying how the court should have ruled. I'm not saying what the outcome of those challenges should've been, but I believe the evidence should have been presented so we could have a fair trial and adversarial process could answer these questions about that election."

Regarding the Bailey v Pritzker case where you ruled the mandates unconstitutional, was that case appealed?

"Actually, my decision was never appealed. What happened was, the governor continued to issue more lockdown orders and executive orders regarding covid and the plaintiff in the case filed a petition for rule to show cause why the government should not be held in direct civil contempt for basically ignoring a valid court order, which was my ruling. I signed an order for the Governor to show cause why [he] should not be held in direct civil contempt and I set that for hearing in like two days."

"Well, the Attorney General, his head was exploding, the Illinois Supreme Court gets wind of this and started collecting pearls and having papers [sic], so they consolidated - they took the case away from me. They transferred it to Sangamon County, along with numerous other cases that were pending under a Supreme Court rule that allows them to do that - to consolidate all these cases with a similar question into one venue, into one location which was Sangammon County, so that's what happened to my case"

Kirk Allen & John Kraft write in Darren Bailey and Consolidated Cases v. Gov. Pritzker Hearing In Sangamon County "The Governor’s position is the Clay County ruling was done outside of their jurisdictional authority and contend the Federal Court still had jurisdiction even though the order remanding the case back to the Clay County Court was signed and mailed – arguing that the Remand Order had not been filed with the state."

Sangamon County, that was another circuit court?

"That's correct, Judge [unclear]" - the recording was unclear, but I believe he said Judge Grischow

On another note, what is your background in immigration law and your understanding of how sentencing can affect a person's immigration status?

"We are mandated in sentencing now to advise anybody who is or may not be a United States citizen and not have a green card that conviction of criminal law could result in deportation. Circuit courts in my circuit, we don't have immigration cases. That's a federal issue. That's where the immigration cases take place. The only issue that we would confront would be if an illegal alien is charged with a crime, we'd have to provide them with an interpreter and advise them that conviction could result in deportation."

You beat incumbent Judge Barry Vaughn in the Primaries. What motivated you to run against him?

"Well actually, what most of the voters never really understood, because they weren't told, is that Justice Vaughn was not appointed to the 5th District Appellate Court, he was assigned there, so even though I won the primary, he remains a Justice on the 5th District Appellate Court. He stays assigned to the Appellate Court as long as Supreme Court Justice David Overstreet watns him to be assigned there. It's very confusing."

"There's 7 appellate justices. 6 of them have to run for re-election. The 7th is assigned by the Supreme Court Justice who has supervisory authority over that district. Ours is the 5th District. The [Illinois] Supreme Court [Justice] with that supervisory authority is Justice David Overstreet. His vacancy is what I'm running for. He appointed Democrat Milton Wharton to fill his vacancy until November 8th, the election. That's the seat I'm running for. So in essence, while Justice Vaughn and i did run against each other, he stays right where he's at."

So if he had won the primaries, then the assigned seat would be open and could be assigned a new justice?

"Exactly. And then the voters would not have a say in that. That would simply be up to the Supreme Court Justice. I wanted to make sure the voters had a choice."

What do you think of legislation regarding cash bail?

Note: NBC Chicago writes about the changes to pre-trial detention, and in what circumstances an offender may be held prior to trial. NBC Chicago summarizes many other changes found in the SAFE-T act.

McHaney: "Umm, these judicial elections are very frustrating to your readers and listeners because we're required to run a public campaign, but at the same time, we're prohibited from telling voters how we might rule on an issue that comes before us. This no-bail statute that's gonna start in January is already on the books, and we as judges have the obligation to follow the law. We took an oath to do that. My personal opinion is it's going to be a disaster. I just, i'll give you an example. Today I was holding Criminal Court. A brand new case was brought before me. A gal charged with retail theft. She has 15 pending cases. Continues to be let out on bail or her own recognizance or a very small bail, and just simply there's no accountability. Umm. It's going to lead to more of that. A revolving door. And I just think it's gonna be a disaster. "

Your website says 'a vote for McHaney is a vote agianst tyranny'. Do you believe your opponent Brian Roberts, a Democrat, supports Tyranny, and if so, in what way?"

"I have never met him. I don't, i know nothing about him. He doesn't have a Facebook page that I've seen. I don't know what he supports. I have no information to answer that question about him. I haven't seen him on the campaign trail. I haven't seen a sign. I just have no information. I don't know."

Could you expand on your position a little more that a vote for you is a vote against tyranny and what you mean by that?

"I was obviously referring to my ruling that Pritzker's lockdown orders violated the Illinois and United States Constitution. There is no pandemic exception to the United States Constitution."

The Madison County Record reports that you received a 'not recommended' rating from the Illinois State Bar Association survey while Republican incumbent Vaughn received a recommendation, though I believe Brian Roberts (Democrat) also received 'not-recommended'. What are your thoughts on the results of this survey?

Note: Results are available on the ISBA website. See Clay County Results for McHaney and Roberts. See Madison-St. Clair Record for Vaughan.

"Sure. With respect to the survey, I would direct your readers or listeners to an article from NewsMax by Mark Vargas and it states 'Illinois Bar Goes Woke'. He states that the left-leaning Illinios State Bar Association has an interest in who sits on appellate courts and their judicial candidate questionnaire for the 2022 primary election, the questions are irrelevant, offensive, and prove that the ISBA has gone woke to protect their favorite judicial candidates. "

"And let me just read to you an actual question on that questionnaire. It says, here it is: "

"How important or what efforts have you made in your community to include people of a different race, color, religion, sex, national origin, ancestry, age, marital status, physical or mental disability, military status, or sexual orientation than you as a lawyer and/or judge in the legal profession?" - McHaney citing the questionnaire. I could not find the questionnaire to confirm.

McHaney: "I did not raise my right hand to take an oath to be a social justice warrior. I rose my right hand and swore to uphold the constitution. When I filled out that questionnaire, I answered and one of my answers was this: 'I absolutely support and believe in equality of opportunity. I completely reject and do not agree and will never support anything that attempts to create equality of outcome.' I knew right then I was gonna get a 'not-recommended' and I would not change my answer even if I was given the opportunity."

Is there anything else you'd like to add regarding your political platform?

"Whether I'm prohibited from saying this or not, I believe we're on a freight train to socialism and the only thing standing in our way is the constitution. This is not the time for the summer soldier or the sunshine patriot. I believe we are at war over the heart and soul of our constitutional republic. This is not the time for Chamberlains, this is the time for Churchills. I can't tell your readers or listeners how I might rule, but I will tell them: This judge will never be woke. I will never cave to the mob. As long as I have the honor and privelege of wearing the black robe, I will never stop upholding our constitution and your civil liberties."

Note: Travis Shaw writes about "summer soldiers and sunshine patriots" on battlefields.org. The article cites Thomas Paine as having written "THESE are the times that try men's souls. The summer soldier and the sunshine patriot will, in this crisis, shrink from the service of their country;"