SPRINGFIELD – For the first time, judges who owe their jobs to voters will decide whether the Illinois Constitution lets judges choose between retention and election.
So far, all decisions in favor of St. Clair County judges running for election have come from persons who don’t owe their jobs to voters.
Now appellate judges of the Fourth District in Springfield tackle the question.
On March 22, they accelerated their review of an order that Sangamon County Associate Judge Estaban Sanchez entered on Feb. 23.
He ruled that chief judge John Baricevic and circuit judges Robert Haida and Robert LeChien properly exercised an option in the Illinois Constitution.
They resigned last August, effective this Dec. 4, creating vacancies they intend to fill through partisan competition this fall.
They won the Democrat primary on March 15, without opposition.
Sanchez found that the word “may,” in a sentence stating that a judge may stand for retention, meant that the judge might also choose election.
He reached the same conclusion as a hearing examiner for the State Board of Elections, the board’s general counsel, and the Democrat half of the board.
They all denied objections of Belleville city clerk Dallas Cook, a Republican who argues that a sitting judge must stand for retention or give up the job.
Retention ballots don’t identify a judge’s party, and a judge must win 60 percent approval to continue on the bench.
Cook’s lawyer, Aaron Weishaar of St. Louis, petitioned the Fourth District to review Sanchez’s order on Feb. 26.
Weishaar moved for acceleration on March 16, and filed an appeal brief days after Fourth District judges granted the motion.
“It is readily apparent that these three judges are undermining what is intended by the Illinois Constitution,” he wrote.
Weishaar wrote that, “the word ‘may’ gives an obvious choice: sitting judges may seek retention to stay on the bench, or they may walk away at the end of their term.”
He quoted the Constitution’s first words on retention: “Not less than six months before the general election preceding the expiration of his term of office, a Supreme, Appellate or Circuit Judge who has been elected to that office may file in the office of the Secretary of State a declaration of candidacy to succeed himself.”
He quoted the last words: “The affirmative vote of three fifths of the electors voting on the question shall elect the judge to the office for a term commencing on the first Monday in December following his election.”
The Constitution clearly gives judges a right of retention, Weishaar wrote, and nothing in it describes a process by which a judge has a right to choose if he wants to run a partisan race or run on his own record.
Its framers gave voters the power “to cast out a judge whose performance was not good enough to get approval of 60 percent of the electorate,” he wrote.
“Once on the bench, a judge should be independent from political pressures unlike those of the political branches of government.”
He wrote that allowing judges to run in partisan elections would open a door for them to be influenced by those who contribute the most to their campaigns.
He wrote that Baricevic, Haida and LeChien might try to argue that they could still file declarations of candidacy for retention by May 1.
“However, they have already resigned and should not now be permitted to change their mind and try to seek retention,” he wrote.
“Prior to 1962, the process for choosing judges in the state of Illinois was purely political. Success had more to do with party backing and campaigning.”
A new Constitutional article adopted a system of retention and election, “designed to make the process for selecting judges less political,” he wrote.
The Constitutional convention of 1969 and 1970 raised the retention requirement from half to three fifths, he wrote.
“We did not want to put the judges back into politics any more than necessary,” Weishaar quoted the convention chairman.
Some delegates favored two thirds; one said that two thirds would make judges “more conscious of the fact that they are truly representatives of our form of government,” Weishaar wrote.
He quoted a federal court opinion that a majority of the convention felt that requiring less than 60 percent would make it almost impossible to remove judges who had lost public confidence.
Baricevic, Haida and LeChien won the Democrat primary on March 15, without opposition.
Michael Kasper of Chicago represents them.