SPRINGFIELD — Arguments over whether St. Clair County judges John Baricevic, Robert LeChien and Robert Haida can remain as candidates in next month's primary election will be heard in Sangamon Circuit Court on Feb. 19.
Ballot access challenger Dallas Cook says the state constitution establishes that the only process for a judge to retain office is through a retention vote that requires 60 percent voter approval - not simple majority re-election style as the three circuit judges seek to do.
"These three judges have decided to make the entire election process easier upon themselves," wrote attorney Aaron Weishaar in support of Cook's petition for judicial review of a recent Illinois State Board of Elections decision that allowed the judges' candidacies to stand."Presumably, they saw the writing on the wall and came to the conclusion that it will be much more difficult for them to stay in office if they need to have 60 percent of the electorate to vote in their favor. Why should they get to decide instead of running on their own records that it is appropriate/permissible to run in a partisan race (while sitting on the bench, with the benefits of incumbancy), as if they were running for election the very first time?"
On Jan. 20, the elections board voted 4-4 along partisan lines following a hearing officer's recommendation that the judges be allowed to run in the March 15 primary. In effect, the deadlock vote left the judges' petitions for nomination on the Democratic ballot undisturbed.
Cook subsequently asked the Sangamon Circuit Court to review the entire record on all questions of law and fact, not just a judicial review of whether the board's deadlock vote or the effect of it is contrary to law.
Cook is Belleville's city clerk. He also is seeking the Republican nomination for the St. Clair County Circuit Clerk seat, currently occupied by Kahala Clay, a Democrat.
Sangamon County Associate Judge Esteban Sanchez presides over Cook's petition for review. According to a scheduling order, the judges' briefs are due by Feb. 16. Cook must respond to the judges by Feb. 18. Sanchez will hold a hearing from 2 to 4:30 p.m. on Feb. 19.
In a memorandum Weishaar filed recently on behalf of Cook, he states that the plain word meaning of Article VI, Section 12 of the state constitution - where provisions of judicial election and retention are laid out - is that once elected, retention is the process that a judge must follow to continue serving on the bench.
"Nothing in the Illinois Constitution, and more specifically in Article Vi, Section 12 (contrary to what Haida, Baricevic and LeChien would have this Court think) describes a process by which a sitting judge has the right to choose at the end of his term if he wants to run for election in a partisan race, or run on his own record, for his next term in office," he wrote.
Weishaar cites Historical Notes of the 1962 Illinois Constitutional Convention, which reflect that judges who are incumbents on Jan. 1, 1963 and thereafter "would run against their record, and without party designation rather than against an adversary candidate in the appropriate general election.”
The judges in August submitted resignation letters to Illinois Supreme Court Chief Justice Rita Garman, indicating they would seek election to their seats rather than retention, and that their resignations would take effect at the end of their terms in December 2016.
They are represented by election law attorney Michael Kasper of Chicago, who has argued that the constitution does not expressly prohibit them from taking the course of action they have.
Baricevic has stated that the reason for running for election versus retention is based on the Code of Judicial Ethics which restricts sitting judges from discussing issues such as former judge Michael Cook's drug addiction.
He said that Cook's drug issue figured prominently in the campaign of St. Clair County Circuit Judge Stephen McGlynn, a Republican who defeated Associate Judge Heinz Rudolf, a Democrat, in 2014.
Baricevic said that McGlynn brought up Cook's drug issue "in every single campaign piece."
There's "no question," Baricevic said, that there are more restrictions on judges seeking retention that prevent them from "openly and aggressively" discussing sensitive issues.
Weishaar's Feb. 8 brief further states that the state constitution does not give judges a choice to run for re-election, rather it provides a roadmap for the two paths to office - initially and upon seeking successive terms.
He argues that the judges' decisions to resign and then seek nomination to run for their own “self-created vacancies” is remarkable for a number of reasons.
"[T]hese three judges have made their remaining in office for another term a partisan issue, erroneously believing it appropriate to stand behind their political party and try to win the judicial 'vacancy' by a simple majority rather than run for retention on his own record," Weishaar wrote.
"Once on the bench, a judge should be independent from political pressures unlike those of the political branches of government. Once elected, judges are prohibited from engaging in political activities, hence, the reason why they are to seek re-election through the non-partisan retention ballot if they wish to remain on the bench. In addition to being instruments of the law, judges are supposed to be impartial and unaffected by ties of friendship or partisanship."
He further argues that a "dangerous" precedent would be set if the judges' position is adopted.
For example, he wrote that a sitting judge could quietly circulate petitions for nomination without any announcement and on the "last possible day resign from his office (effective the last day of his judicial term, no less) and at the same time file his own nomination papers... ."
Weishaar argued that a judge could follow that scheme, which could preclude any opposing judicial candidate from circulating nomination petitions.
"The sitting judge could therefore conceivably control the entire election process for his own 'self-created vacancy,' including the timing of his resignation, effectively concealing it until he files his resignation," he wrote.
Weishaar also argues that it's too late for the judges to "change their minds" to file papers for retention - the deadline for which is not reached until six months before the general election, which in this case is May 1.
He wrote that they have already resigned.
"The Illinois Supreme Court accepted their resignations and has certified the three vacancies," Weishaar wrote. "If these three judges are permitted to file declarations seeking retention, any other candidates who submitted nominating petitions, including the People of the Twentieth Judicial Circuit, would be unduly prejudiced having detrimentally relied upon the express resignations of each of them and upon the vacancies certified by the state."
Two Republicans are seeking election to vacancies created by the judges' resignations.
Ron Duebbert of Belleville is running for the Haida vacancy, which is the same vacancy that Baricevic is seeking.
Laninya Cason of East St. Louis is running for the LeChien vacancy, as is LeChien.
Haida is running for the Baricevic vacancy and would face no opposition if he is allowed to remain on the ballot.
Finally, Weishaar argues that the Historical notes to the state constitution and "good public policy" supports Cook's position.
"Since judges are to be 'initially elected' on a partisan basis, the very purpose of judges seeking retention on a 'separate judicial ballot' is to take party politics off the table so that an incumbent judge runs on his/her own record," Weishaar wrote.
"The actions of Baricevic, Haida, and LeChien run afoul of the Illinois law as they have placed themselves right back into partisan politics while still sitting on the bench."