Ann Maher Apr. 6, 2016, 10:02am


An attorney defending three St. Clair County judges from a challenge to their candidacies says the case is moot because the primary election has already come and gone.

In a brief filed at the Fourth District Appellate Court, Chicago attorney Michael Kasper argues that relief sought by ballot objector Dallas Cook of Belleville is no longer possible.

"Objector asked that the Candidates' name not appear on the March 15, 2015 (sic) Primary Election ballot," Kasper wrote. "That date has obviously passed and the relief he requested is no longer possible. As a result the case is moot."

Kasper represents Chief Judge John Baricevic and Circuit Judges Robert Haida and Robert LeChien, who resigned last August, effective this Dec. 4, creating vacancies they intend to fill through partisan competition in the fall.

Cook, a Republican, serves as Belleville City Clerk and also is his party's nominee for St. Clair County Circuit Clerk in November. He has challenged the Democrat judges' petitions to run for election on constitutional grounds, arguing that state statute requires sitting judges seeking successive terms to run for retention on non-partisan ballots.

To win a retention race, judges must receive three-fifths or 60 percent voter approval - a higher margin than in an open election where only a simple majority is required to win.

The judges have so far survived hearings at the State Board of Elections and at Sangamon County Circuit Court where un-elected Associate Judge Esteban Sanchez ruled Feb. 23 that they properly exercised an option in the Illinois Constitution.

Sanchez found that the word “may,” in a sentence stating that a judge may stand for retention, meant that the judges might also choose election.

In Kasper's appellate brief, he reiterated previous arguments that the judges' nomination papers were valid because they met eligibility requirements and that federal and supreme court precedent supports their position.

He also took a stand that Cook's challenge is not "amenable" to the public interest exception that the Supreme Court can recognize when mootness is a factor.

Kasper wrote that provisions of Article 6 Section 11, 12(a) and 12(d) - which form the basis of the judges' position that they meet eligibility requirements and have the option to run for election - "have been included in the Constitution since its original adoption in 1970, and this is the first time this issue has ever been presented for resolution before an electoral board or court."

"Having come up only once in 45 years, it can hardly be said that the question is 'likely' to recur," he wrote.

Even though there has never been a similar constitutional challenge, the election-over-retention tactic was tested one other time in state history when former St. Clair County circuit judge Llyod Cueto tried it in 2006. He faced a political challenge in the general election, but not a constitutional one. At the time, some legal experts and observers called the move unconstitutional.

Kasper further argues that Cook did not act expeditiously to get the case resolved prior to it becoming moot. He wrote that Sanchez's circuit court decision was reached Feb. 23, and while Cook filed notice of appeal on Feb. 26, he did not move to place the case on an expedited docket until March 15 - primary election day.

"Thus, it is the Objector's own lack of urgency that has resulted in, or at least contributed to, the case becoming moot by the passage of the Primary Election," Kasper wrote.

His brief also pokes at Cook's "largely political arguments" which "are not relevant to the validity of the candidates' nomination papers."

Kasper wrote that Cook's argument that the judges "are not politicians" and should be beyond the pressures of raising campaign funds has "little to do" with the judges' constitutional eligibility. He wrote that it was "ironic" for two reasons.

"First, it ignores the obvious fact that a retention election is, in fact, an election," he wrote. "Second, and more importantly, it is the Objector himself who seeks to deprive the voters of any election at all."

Whether a candidate runs for retention or election, "they will have to act like other politicians and solicit campaign contributions in order to persuade voters to support their candidacies," he wrote.

"This is especially true in light of the fact that retention elections have become hotly contested affairs costing millions of dollars. Thus, regardless of whether the Candidates are in a retention election, or a contested election, they are nonetheless an election."

He wrote that it is "disingenuous" for Cook to argue that voters having a choice between two or more candidates is worse than only a single choice, "especially here because Objector wants voters to have literally no choice."

"If Objector prevails, and this Court concludes that the Candidates' names should not have appeared on the Primary Election ballot, the Democratic Party will not have a candidate on the ballot at the General Election for any of these offices," he wrote. "One cannot seriously argue that the voters are better served by having literally no choice at the polls on election day."

Cook is represented by St. Louis attorney Aaron Weishaar.

A reply to the judges' brief is due April 15. Oral arguments are tentatively scheduled at 2 p.m. on June 7.

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