Eligibility requirements for judicial candidates and the process in which judges are retained and appointed to the bench would see some major changes under a trio of proposals introduced this month in the Illinois General Assembly.
Each of the three measures would amend the Judiciary Article of the state Constitution, a feat that requires approval from three-fifths of the legislature before such a proposal could even be put to the voters for their consideration.
Rep. Dwight Kay, R-Glen Carbon, last week filed one of the two proposals that call for changes to the way Illinois selects and retains its judges.
Rep. Kelly Cassidy, D-Chicago, serves as a sponsor to the other one and Sen. Bill Cunningham, D-Chicago, earlier this month introduced a proposal that focuses on the eligibility requirements for judicial office.
All three constitutional amendments have been assigned to the Rules committees in their respective chambers.
Although encouraged that there are at least three lawmakers pushing for change, Ed Murnane, president of the Illinois Civil Justice League (ICJL) said he is not sure whether “any of these proposals will get any traction” during the spring legislative session.
“We’re encouraged by the fact that legislators are taking a look at the need for judicial selection reform,” Murnane said. “But, I think addressing retention is approaching the issue from the wrong end. I think change needs to be made in the selection process, not in the retention process.”
Rather than focusing on the process in which Illinois uses to retain its judges, Murnane said “we need to make sure we are putting good people on the bench to begin with” because it is very rare that sitting judges fail to receive the necessary votes to be retained to another term.
Even if the trio of recently-introduced constitutional amendments doesn’t make it out of the General Assembly this year, Murnane said he hopes the proposals will at least be discussed by lawmakers in a meaningful way.
Jim Covington, legislative director for the Illinois State Bar Association, said his group has not decided whether it will support any of these proposals.
He did, however, say that Cassidy plans to convene a meeting to discuss her proposal and “we hope to participate in that. I think we are interested in the concept.”
Kay’s proposal
Kay’s proposal -- House Joint Resolution Constitutional Amendment 15 – would create non-partisan judicial commissions.
These commissions would be charged with nominating and submitting the names of judicial candidates to the governor for appointment to fill vacancies created by resignation, retirement, removal or retention loss.
Under HJRCA15, separate commissions would be established to handle nominations for the Illinois Supreme Court, each of the five appellate court districts and all of the state’s judicial circuits.
Each commission would consist of eight members, four lawyers and four-non lawyers, who would serve a six-year term. The lawyer members, according to Kay’s proposal, would be selected by licensed attorneys in the state and non-lawyer members would be chosen by each of the four legislative leaders.
HRJCA15 provides that these commissions “may conduct investigations, meetings, and hearings, and may employ staff members as necessary to perform its duties.”
Under Kay’s proposal, each commission would have 60 days to submit the names of three nominees who are “qualified for review by the commission” to the governor after receiving notice of the vacancy from the director of the Administrative Office of the Illinois Courts (AOIC).
The term “qualified for review by the commission,” as defined by HJRCA15, means that “the nominee, by his or her character, temperament, professional aptitude, experience and commitment to equal justice under the law, is deemed by the commission to be well qualified to fit the vacancy.”
Kay’s proposal would require the governor to make the commission’s recommendations public and appoint one of the three nominees not less than 28 days or more than 56 days after receiving the list.
If the governor fails to do so within the time period, HJRCA15 would allow the commission to appoint one of its nominees to fill the vacancy.
Cassidy’s proposal
Like Kay’s measure, Cassidy’s constitutional amendment –HJRCA10-- also proposes changes to Illinois’ judicial retention process.
Under her proposal, a Judicial Retention Commission would be created “in each judicial district to determine qualifications for retention of judges of Supreme and Appellate Courts for each district” with a separate commission established to handle the retention of circuit judges.
HJRCA10 calls for a combined commission to consider the qualifications of judges seeking retention in the First Judicial District Appellate Court and Cook County’s circuit court.
In addition, the proposal would allow additional commissions to be impaneled if more than 40 judges in a circuit, or in Cook County’s combined district and circuit, file declarations of candidacy for retention to the bench.
Under Cassidy’s proposed constitutional amendment, each commission would be made up of 11 members including six non-lawyers and five lawyers.
The non-lawyers would be appointed by the governor, a statewide officer of the opposite political party as the governor and county board members located in the district or circuit that the judicial vacancy is located in.
The commissions’ lawyer members, according to Cassidy’s measure, would be selected through a secret ballot of Illinois attorneys.
Under Cassidy’s proposal, the director of the AOIC would certify the number of commissions needed and notify the chairman of the appropriate commission, who would then “promptly convene a commission.”
Like Kay’s proposed constitutional amendment, HJRCA10 gives these commissions the authority to conduct confidential investigations, meetings and hearings, as well as to employ staff members.
It also gives the commission discretion to determine its own rules, but notes that the judges should have the chance to appear before it and request a rehearing if they are found not to be qualified to serve another term.
Under the proposal, the standard for determining whether a candidate is qualified to serve another term should include “his or her character, background, temperament, professional aptitude, experience and commitment to justice.”
If at least three-fifths of the commission finds the candidate qualified to serve another term, the candidate will be retained. If the commission determines the candidate to be unqualified, that judge can still “stand for retention by the electorate at the general election by filing” a declaration of candidacy with the Secretary of State.
In those instances, the commission will make public its reason or reasons for not finding that judge qualified to serve another term.
Cassidy’s measure also includes a provision that aims “to ensure racial diversity.”
In any appellate district or judicial circuit in which blacks, Asians or Hispanics exceed three-percent of the population, HJRCA10 requires the Supreme Court to appoint a lawyer member “from the listed racial group that exceeds three percent of the population so that group has no less than one member on that commission.”
Cunningham’s proposal
Unlike the proposals introduced by Kay and Cassidy, Cunningham’s proposed constitutional amendment aims to beef up the eligibility requirements for judicial office.
His proposal –Senate Joint Resolution Constitutional Amendment 7 – provides that in order to be eligible to be elected or retained as a judge or appointed or reappointed to an associate judgeship, candidates must be certified as qualified by the Attorney Registration and Disciplinary Commission (ARDC).
SJRCA7 also requires candidates seeking appointment or reappointment to an associate judgeship in counties with populations of 3 million or more to have actively practiced law in Illinois for at least 10 years.
In addition, Cunningham’s proposed amendment to the state constitution would bar attorneys from seeking such judgeships if they have had their law licenses suspended or revoked by the Supreme Court for disciplinary reasons.
The ARDC certification, according to the language of SJRCA 7, would be effective for two years and issued to those who meet the proposal’s requirements.
The proposed constitutional amendment directs the ARDC to consider the following during its evaluation process: “each candidate’s legal experience, skill and knowledge, as well his or her academic background, personal character, commitment to community service, and professional conduct and temperament.”
Cunningham’s proposal also notes that the disciplinary commission can consult with the ISBA and “other well established local bar associations” in conducting its evaluations.
Under SJRCA7, the ARDC would charge applicants for judge or associate judge positions “a suitable fee” to cover costs associated with the evaluation process.
In addition, Cunningham’s proposal would increase the percentage of votes sitting judges need to be retained to the bench from 60 percent to 66 percent.
The language of all three of these proposals can be found at ilga.gov.