Ann Maher Apr. 18, 2016, 3:43pm


Whether three St. Clair County circuit judges have the option of running for election over retention is "still very much alive" and a question that is ripe for adjudication, according to a reply brief filed Friday at the Fourth District Appellate Court.

In it, St. Louis attorney Aaron Weishaar disputed arguments made by counsel for Chief Judge John Baricevic, and Judges Robert LeChien and Robert Haida who say a challenge to their ballot access is moot because the March 15 primary election has already passed. The judges resigned last August, effective this Dec. 4, creating vacancies they intend to fill through partisan competition in the fall.

Weishaar represents Belleville City Clerk Dallas Cook, who objected to the judges' petitions to run for election, arguing that state statute requires sitting judges seeking successive terms to run for retention on non-partisan ballots.

The judges are represented by Chicago attorney Michael Kasper, who has so far maintained their viability as candidates before election officials as well Sangamon County associate Judge Esteban Sanchez.

Sanchez found that the word “may” in a sentence contained in Article 6 Section 12 of the Illinois Constitution - stating that a judge may stand for retention - meant that the judges might also choose election. His Feb. 23 ruling was appealed by Cook to the Fourth District Appellate Court.

Oral arguments are tentatively scheduled there on June 7.

Weishaar says that the judges' "mootness" argument is "ridiculous" because there is little practical difference if the judges, who ran unopposed on the Democratic ballot, had their names removed from the March 15 primary or if their names are removed from the general election ballot in November.

"Meaningful relief" is still available, Weishaar wrote.

He further stated that if the judges prevailed in their argument that Cook's relief can no longer be granted, the Illinois Supreme Court still recognizes an exception to the mootness doctrine if the issue involves a substantial public interest.

This case "falls squarely within this public interest exception" because it involves election law, Weishaar wrote, and it also concerns the interpretation of the state Constitution, thus highlighting the need "for an authoritative resolution."

"When dealing with a state’s constitution, it is desirable that there be clear and consistent authority as to its meaning, especially when confidence in the electoral process and the rights of the electorate are at stake," Weishaar wrote.

If the question is not resolved, the issue will likely come up again, he wrote.

"As for judges opting to forgo the retention process set out in Article VI, Section 12(d), in this single election cycle alone, the issue has arisen three times," he wrote. "This would seem to indicate that the occurrence of judges seeking to avoid retention elections (and the required approval of 60% of the voters) is on the rise."

"Given the increased scrutiny of all our public officials and the divisiveness of our current bi-partisan politics, it is understandably more likely now than in the past that judges are concerned with obtaining a 60% approval rating, and as such, will inevitably attempt the same maneuver as these three sitting judges."

If the judges' actions are upheld, he wrote, it will "foreseeably open the flood gates for other sitting judges to do the same."

Weishaar also addressed the judges' assertion that his client lacked urgency in getting the case heard at the appellate court before the primary, saying the matter was handled as "expeditiously as possible." 

Kasper argued in his appellate brief that Cook filed notice of appeal on Feb. 26, but that he did not move to place the case on an expedited docket until March 15 - primary election day.

Weishaar suggested that the Circuit Clerk's office in Sangamon County was responsible for delay.

"The Notice of Appeal was filed on February 26, 2016 in Sangamon County, within three days of receiving the decision of the Circuit Court," he wrote. "The Notice of Appeal, however, for whatever reason, was not expeditiously sent by the Circuit Clerk of Sangamon County to the 4th District Appellate Court."

"This Court, therefore, (for reasons unknown) did not receive the Notice of Appeal until March 8, 2016 - thereby making it impossible for Objector to file anything."

He wrote that within two days of the appeal having been received at the Fourth District, a docketing statement was filed which then allowed him to file a motion for an accelerated docket.

He also wrote that he stayed in contact with opposing counsel to come up with a briefing schedule to make it possible to proceed.

"Although securing such assent among opposing parties took a few days while calls and emails regarding schedules were exchanged, far from lacking urgency, Objector was attempting to keep this matter moving forward as quickly as possible," he wrote.

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