The Illinois Civil Justice League may challenge the constitutionality of 20th Circuit Judge Lloyd A. Cueto's election bid.

Cueto, an incumbent running for St. Clair County circuit judge in the Nov. 7 general election, is seeking voters' approval in an unconventional way. Rather than run for retention -- the procedure followed by sitting circuit judges every six years and by appellate and supreme court judges every 10 years -- Cueto withdrew last December to run for election to the same position.

To win retention a judge must have 60 percent approval. An election vote requires only 51 percent.

"No one has yet publicly asked or challenged if Judge Lloyd Cueto can even do that," said Ed Murnane, ICJL president.

Cueto, a Democrat, was first elected judge in 1994. He won retention in 2000.

O'Fallon attorney Paul Evans, a Republican, threw his hat in the ring after Cueto withdrew from retention and filed petition to run for election. Evans gathered more than enough signatures by Jan. 10 to appear on the March 21 primary ballot.

"It will be interesting to see if anyone explores this (constitutionality) issue," said Murnane.

In June the ICJL filed a complaint with the Illinois Judicial Inquiry Board charging that Cueto was in violation of the Code of Judicial Conduct by serving as chairman and treasurer of his own campaign committee.

A day after a news report was published, Cueto filed an amendment with the Illinois State Board of Elections designating another individual to head his campaign organization, Committee to Re-Elect Judge Lloyd Cueto.

Murnane said his organization was not sure yet if it would pursue a challenge to Cueto.

"I am not a lawyer but I can read the constitution and I think
there is some question as to whether he can do this," said Murnane.

"We have not yet decided if we are going to pursue this, or if it's worth pursuing," he said.

According to a section of the Illinois Constitution regarding the election and retention of judges (Article VI, Section 12):

"(b) The office of a Judge shall be vacant upon his death, resignation, retirement, removal, or upon the conclusion of his term without retention in office.

"(c) A vacancy occurring in the office of Supreme, Appellate or Circuit Judge shall be filled as the General Assembly may provide by law. In the absence of a law, vacancies may be filled by appointment by the Supreme Court."

Murnane said that Paragraph (b) "would suggest that Judge Cueto's seat is not, in fact, vacant and if it was, Paragraph (c) suggests that the vacancy 'shall be filled as provided by law,' (which has not been created) so it is up to the Illinois Supreme Court."

A month after Cueto filed to run for election, State Sen. Frank Watson (R-Greenville) introduced a proposed amendment to the Illinois Constitution that would prohibit judges who fail to file for retention from filing as a candidate to the same position.

Dubbed the "Cueto Law," Watson's proposal in January was in direct response to Cueto's decision not to seek retention.

The synopsis of Watson's proposal, which was referred to the Senate Rules Committee the day it was filed Jan. 19, reads: "Proposes to amend the Judiciary Article of the Illinois Constitution. Prohibits a Supreme, Appellate, or Circuit Judge who fails to file a declaration of candidacy for retention from filing petitions as a candidate for the judicial vacancy created by that failure. Effective upon being declared adopted."

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