CHICAGO – Democrats on the Illinois State Board of Elections preserved spots on the March 15 Democrat primary ballot for St. Clair County judges who plan to run for election rather than stand for retention.
Objections against the judges failed at a board meeting on Jan. 20, by a 4-4 vote that served the judges as well as eight votes would have done.
Democrats on the board adopted a position that every Illinois judge can choose between retention and election.
Judges in Illinois gain their positions in partisan elections, but afterward stand for retention without party identity.
They must win 60 percent to retain their positions.
St. Clair County chief judge John Baricevic and circuit judges Robert Haida and Robert LeChien said last year that they would not stand for retention.
In August, they submitted letters of resignation and said they would run in the primary.
They copied former St. Clair County judge Lloyd Cueto, who ran for his own position as a Democrat in 2006 rather than seek retention.
No one filed objections then, and Cueto won in a general election contest against Republican Paul Evans of O’Fallon.
This time, Belleville city clerk Dallas Cook objected.
His lawyer, Aaron Weishaar of St. Louis, pleaded that the Illinois Constitution required Baricevic, Haida and LeChien to stand for retention.
The election board’s hearing officer, David Herman of Springfield, recommended denial of the objection.
He identified a constitutional option for judges in Section 12 of Article Six.
At the hearing, Weishaar said an option for judges in Section 12 is a “delusion.”
There is nothing in the Constitution on judges filling their own vacancies, he said.
He further said that a judge who doesn’t want to stand for retention must resign or retire.
“If a sitting judge wants to keep his job this is how he has to do it,” Weishaar said.
Historical notes from 1962 show that Illinois chose retention in response to concerns about uniform process in enforcing the law, he said.
Lawmakers set retention at 60 percent, “to strengthen the judiciary,” he said.
Weishaar said the process that the St. Clair County judges want to take would make it “easier.”
He called it “an abusive tactic that undermines the Constitution.”
The purpose of retention is to take party politics off the judicial ballot, he said.
If the judiciary becomes political, there would be no branch to check the other two on the constitution, Weishaar said.
He said it would be “extremely dangerous” and that judges could be influenced by campaign contributions.
Having judges run on their records is a risky proposition, he said.
For the judges, Michael Kasper of Chicago said the sole question before the board was whether their nominating papers were valid.
Kasper said the sole challenge was to the statements of candidacy, and the sole question was whether they were qualified.
Section 11 of Article Six provides eligibility for a judicial candidate who is a U.S. citizen, a licensed attorney, and an Illinois resident.
He said the objector didn’t allege that the judges failed to meet the qualifications, and that the objector would adopt a fourth qualification that is not in the Constitution.
He said retention statutes don’t apply because the judges don’t seek retention.
“There has never been a case that holds otherwise,” Kasper said.
He said that Supreme Court Justice Lloyd Karmeier wrote in a dissenting opinion that a judge could do either.
In rebuttal, Weishaar said, “They are playing games with the Constitution just so they can stay on the bench.”
Kasper said their motivations were irrelevant.
“The voters actually have a choice,” Kasper said.
He said he disagreed that it was harmful.
“This is actually more democracy, not less,” Kasper said.
Republican board member Andy Carruthers of Edwardsville asked Kasper if he ever heard of a judge exercising the option besides Cueto 10 years ago.
Kasper said, “I am not aware of anybody who has actually done it.”
Weishaar said, “That would be correct.”
Carruthers said, “If the language is plain, it seems more judges would have exercised the option, especially those who weren’t retained.”
Kasper said Karmeier recognized the possibility of an option.
“The question is not whether it’s a good idea or a bad idea,” Kasper said. “The question is whether the statements comply with the Constitution.”
Weishaar said Karmeier’s dissent was an anomaly, and he said he found it curious that the judges would rely on a dissent.
Republican board member William Cadigan of Winnetka said the “O’Brien” case provided the clearest guidance.
Cadigan read from it that elected judges are “subjected to retention votes thereafter.”
He said he saw nothing permissive in the law, and noted that hearing officer David Herman left out some history.
He said he went through the deliberations of the constitutional convention of 1970, and found a clear and distinct mandatory system for elected judges who seek to remain on the bench.
“I am disappointed that the record wasn’t developed more,” Cadigan said.
Carruthers said he also was disappointed that the convention of 1970 wasn’t more thoroughly examined.
The Missouri plan, which is based on merit, was considered, he said. The convention also considered retention at 50 percent.
He said those convened didn’t consider a judge running for another term.
He added that thousands of judges have come and gone for 50 years, and they all honored what the convention decided.
He said Article 12 of Section Six is very specific.
“If the framers wanted to provide an option, they would have been equally specific,” Carruthers said.
Cadigan said the old system was fraught with problems.
“Judges have a shelter not available to other elected officials,” he said.
If there was a constitutional right granted to elected judges, the right to run would also be expressed in the Constitution, he said.
Democratic board member Casandra Watson of Chicago said there was no custom or practice the board could rely on.
Kasper said Article Six provides a right for an eligible person to run.
Republican board member Ernest Gowen of Olympia Fields said, “I don’t see option language anywhere in Section 12.”
“The hearing officer jumped to this conclusion,” Gowen said. “I’m not sure how he got there.”
Gowen said retention is mandatory and exclusive.
“It’s not optional,” he said. “If they want to continue serving, this is their method.”
Carruthers said Baricevic and Haida filed to run for each other’s seats, and he asked Kasper if he knew why.
Kasper said, “I don’t know. I don’t know the answer to that.”
Weishaar said he filed a subpoena for that purpose and the board denied it.
Carruthers said, “It seems odd that they would file paper work in that way.”
Cadigan said it is within the board’s scope to hear constitutional challenges.
“It jumps out that elected judges are required to go through the election process,” he said. “We do hold judges to a different standard, and the Constitution creates a different standard.”
Cadigan, Carruthers, Gowen and Betty Coffrin of Charleston voted for Cook.
Watson, board chairman Charles Scholz of Quincy, and John Keith of Springfield voted for the judges, and Watson cast McGuffage’s vote for them.
Scholz said, “I suppose we’ll be seeing judicial review.”
Carruthers asked what four to four means.
General counsel Kenneth Menzel said the motion fails.
“The candidate can’t be removed by us without five votes,” Menzel said.
Cadigan moved to ask attorney general Lisa Masigan for an opinion.
Six members cast votes for the motion and Watson cast two against it.
Weishaar said afterward that if Cook decides to seek judicial review, he could do it in Sangamon County or in Cook County.