Subpoenas have been requested of St. Clair County Circuit Judges John Baricevic, Robert LeChien and Robert Haida in a case before the State Board of Elections challenging their nominations as Democratic candidates for seats they vacated.
Dallas Cook, Belleville's city clerk, seeks to have the judges' names removed from the March primary ballot, arguing their candidacies are not valid because they are required by statute to run for retention, not re-election as they seek to do.
Cook, represented by St. Louis attorney Aaron Weishaar, asks for emails and other documents circulated by the judges "in order to fully develop arguments and positions regarding this matter."
"Objector believes Respondents may have directly discussed the motives and methods behind their respective decisions to resign from their judicial positions rather than seek retention," Weishaar wrote.
In addition, Cook seeks to subpoena records of the Administrative Office of Illinois Courts (AOIC), saying it may have copies of the three judges' official letters of resignation.
He also seeks to subpoena records from the Illinois Secretary of State pertaining to documents submitted by LeChien and Baricevic regarding their requests to seek retention in previous terms.
A hearing will be held before an electoral board of the Illinois State Board of Elections on Dec. 22. The party or parties who lose can sue to overturn at the circuit court level, which would likely be where the board makes its decision - in Sangamon County or Cook County. Likely appeals would be expedited and follow at the appellate court level, then the supreme court.
Earlier this week, Chicago attorney Michael Kasper appeared for the three judges at a State Board of Elections hearing in Springfield. He also filed motions to dismiss. Kasper says Cook's constitutional arguments against the judges' nominations "fly in the face of a plain reading" of statute.
Cook, a Republican seeking election to Circuit Clerk in next year's general election, objected to the judges' move to seek nomination to the seats being vacated, arguing that statute requires judges seeking successive terms to run on their records in a retention vote which requires three-fifths voter approval, or 60 percent - and not re-election which only requires a simple majority vote to win.
Allowing the three judges to run for re-election to vacancies they created would set a dangerous precedent and "clearly would not be the intent of the Illinois Constitution," Weishaar argued in a brief.
If the procedure were allowed to stand, any sitting judge could unfairly control the electoral process by stifling competition.
In this way, a judge could "quietly circulate petitions for nomination without any announcement of any kind, and then on the very last possible day resign from his office (effective the last day of his judicial term) and at the same time file his own nomination papers with the board of elections," Weishaar wrote.
"Meanwhile, there is no time for any opposition to circulate petitions. Even if there should be an opponent, the sitting judge would only have to win the election by a simple majority instead of by the 60% margin when running on his/her own record. The sitting judge could therefore conceivably control the entire situation, including the timing of his resignation and effectively conceal it until he files his resignation. From a simple policy perspective, this should not be permitted."
The main battle between Cook and the judges lies in subsections of Article 6, Section 12 of the state constitution.
Kasper focuses on the use of the term "may" in Section 12(d) that outlines how and when judges should file notice with the state on their intention to seek retention. "May" connotes permissiveness and denotes discretion, he says.
He argues that if Cook's position were correct, the statute would have to state "may only" file.
"The meaning of a constitutional provision depends on the common understanding of the voters who gave it life by ratification," he wrote.
He cites case law in Maddux v. Blagojevich in which the Illinois Supreme Court overturned a statute that precluded a sitting judge from seeking retention if he or she were older than 75.
"Here, there is likewise no rational basis for concluding that the Constitution would prevent former judges from running in an election, while allowing citizens who were never judges to run in the same election," Kasper wrote. "He or she must simply do so by means of a contested election. The number of times the judge may seek office through such elections is unlimited."
He wrote that Cook "is simply incorrect in suggesting that sitting judges are required to seek retention, and are precluded from entering a primary election."
"Nothing in Section 12(d) suggests such an interpretation," Kasper wrote. "No court or electoral board has ever invalidated a Candidate's nomination papers on this basis. The word 'may' means 'may.'"
Kasper also says that Cook's position puts Section 12(a) which addresses eligibility - citizenship, licensure and residency in direct conflict with Section 12(d) on how and when to file.
"The Objector's proposed interpretation would, however, add a fourth eligibility criteria to this list: non-incumbency," Kasper wrote.
In Cook's brief, he argues that there is nothing ambiguous about Section 12(d) and that the plain meaning is that judges seeking successive terms are required to do so through retention.
He points to a revision of state law in 1962, when the process of selecting judges went from a purely political one to a retention system.
He says that the very function of Section 12(d) is to allow a judge who has already been elected to decide whether he or she wants to remain on the bench.
"In other words, there is a choice to make: the sitting judge may seek retention to stay on the bench, or he may walk away at the end of term."
He bolsters the point by referencing historical notes made to Article VI when it was amended.
"Judges who are incumbents on January 1, 1963 and thereafter would run against their record, and without party designation rather than against an adversary candidate in the appropriate general election," Weishaar cites.
He also cites the state's 2016 candidate's guide which notes that, "Once elected to office, a judge may seek to retain that office at the expiration of the term by seeking retention on a special ballot separate from the regular ballot. No party affiliation is indicated on the retention ballot."
Cook further points out that Section 12(b) provides that the office of a judge is vacant upon death, resignation, retirement, removal or upon the conclusion of his or her term without retention.
"Since the Illinois Board of Elections shows the Honorable C. John Baricevic, the Honorable Robert Haida and the Honorable Robert P. LeChien each being a vacancy, those vacancies presumably had to have been created and presumably were created by resignation," Weishaar wrote.
In their nominating petitions, Baricevic seeks the vacancy of Haida; Haida seeks the vacancy of Baricevic and LeChien is running for his own vacancy.
"LeChien is trying to succeed himself, again undermining the Constitution and the retention process," he wrote. "A plain language reading of the Illinois Constitution makes it clear that a judicial candidate cannot run on a partisan ballot to succeed himself."
He wrote that judges "should not be acting like other politicians just to keep their jobs."
"If the judiciary becomes another political branch responsible to political pressures, then there would be no branch of government that could check the power of the legislature or executives when they infringe upon the constitutional rights of individuals."