St. Clair County judges believe that nothing in the Illinois Constitution, the constitutional convention record, the state Election Code or any legal precedent has ever suggested that retention is the exclusive path that a sitting judge must follow to seek a successive term.
Chicago attorney Michael Kasper adopted that position for Judges John Baricevic, Robert LeChien and Robert Haida in a brief filed Tuesday in Sangamon Circuit Court.
In defending a lawsuit challenging their access to the March 15 Democratic ballot, Kasper argues that the question Associate Judge Esteban Sanchez must decide is whether the judges nominating papers are valid.
Kasper bolstered his constitutional arguments with political perspective.
He stated that in Illinois, there is an "overriding interest in ballot access" which is "zealously" protected by the State Board of Elections and the courts.
He says that Cook's "largely political" position is not relevant to the validity of the judges' nomination papers.
Rhetoric such as "judges are not politicians" and that they should be "beyond political pressures" of raising campaign contributions has little to do with the judges' eligibility, Kasper wrote.
"First, it ignores the obvious fact that a retention election is, in fact, an election," Kasper wrote. "Seond, and more importantly, it is the Petitioner himself who seeks to deprive the voters of any election at all."
If Cook prevails, Kasper wrote, "no candidate's name will appear on the Democratic Party's primary ballot for those offices."
"One cannot seriously argue that the voters are better served by having literally no choice at the polls on election day."
Kasper says that since the judges meet requirements of citizenship, residency and attorney licensing as described in Article VI, Section 11 of the state Constitution, they are eligible to run.
Sanchez, who will hold a hearing Friday afternoon, is likely to rule quickly since the primary election is less than four weeks away.
Challenger Dallas Cook, Belleville City Clerk, argues that the state constitution establishes that the only process for a judge to retain office is through a retention vote that requires 60 percent voter approval - not simple majority re-election style as the three circuit judges seek to do.
In August, the three judges submitted letters of resignation to the Illinois Supreme Court, indicating that they intended to seek election to their seats rather than to seek retention.
In December, Cook filed objections with the State Board of Elections. On Jan. 20, the elections board voted 4-4 along partisan lines following a hearing officer's recommendation that the judges be allowed to run in the primary. In effect, the deadlock vote left the judges' petitions for nomination on the Democratic ballot undisturbed.
After the State Board of Elections ruling, Cook, who is represented by St. Louis attorney Aaron Weishaar, filed suit in Sangamon Circuit Court.
In the case before Sanchez - an appointed not elected judge - both sides rely on Article VI, Section 12 of the state Constitution, which outlines processes for judicial election and retention. They disagree on its "plain meaning."
Kasper says that Section 12(d) provides that a sitting judge "may" file papers seeking retention, but that "it says absolutely nothing about what a sitting judge may not do."
"Of course, the plain meaning of the word 'may' is permissive," Kasper wrote.
He further argues that Cook cannot "insert eligibility requirements" into the Constitution.
"Nothing in Section 12(d), or any other constitutional provision, prohibits a sitting judge, who does not seek a retention election, from entering the primary election like any other eligible citizen."
Kasper also states that "all" state supreme court and federal court precedent supports the judges' eligibility.
He notes a 2009 decision at the Illinois Supreme Court, Maddux v. Blagojevich, which struck down mandatory retirement age for judges.
"In Maddux, the majority declared that a sitting judge could not be barred from seeking election (the majority did not distinguish between retention or contested) by mandatory retirement," Kasper wrote. "Justice Karmeier (dissenting) would have barred a sitting judge who had achieved the mandatory retirement age from seeking retention, but not from running in a contested election. Neither the marjority nor the dissent, however, would have precluded an otherwise eligible judge from seeking election fhrough a contested primary election."
One of the issues before Sanchez will be to determine the standard for review.
Cook is asking the court for a review of the entire record on all questions of law and fact, not just a judicial review of whether the State Board of Elections' deadlock vote or the effect of it is contrary to law.
Kasper argues that the question before the court should be whether the State Board of Elections' decision that the judges' nomination papers were valid was "clearly erroneous."
Whatever the outcome may be in Sanchez's court, the case could go up to the Supreme Court to provide guidance for the future.
For decades, all circuit, appellate and supreme court judges in Illinois who have sought successive terms have followed the process of running for retention in non-partisan races which require a higher threshold for winning. The only exception occurred in 2006 when another judge from St, Clair County - Lloyd Cueto - did the very thing Baricevic, LeChien and Haida are attempting.