No matter how Sangamon County Associate Judge Estaban Sanchez rules in the ballot access challenge to Judges John Baricevic, Robert LeChien and Robert Haida, the decision must have taken into consideration more than just whether their nomination papers are valid, according to court papers filed Thursday.
Dallas Cook, who seeks to have the St. Clair County judges' names eliminated from next month's Democratic primary ballot, fired back in response to the position being taken by the judges, as both sides prepare for a hearing this afternoon.
Cook will be represented by St. Louis attorney Aaron Weishaar and the judges will be represented by Chicago attorney Michael Kasper when they appear before Sanchez at 2 p.m. in a Springfield courtroom.
On Tuesday, Kasper filed a brief on behalf of the judges arguing 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. Kasper says the validity of the judges' nomination papers is the sole question before Sanchez.
In response, Weishaar disagrees, arguing that Sanchez must decide whether the challenged nominating papers comply with state law and must ensure that state law and election code are being followed.
"In particular, what is at issue for this Court to determine is whether the election law of this state permits Haida, Baricevic and LeChien to announce their own resignations effective the end of their current term and at the same time be permitted to run for re-election to their same jobs, all the while they remain sitting on the bench," Weishaar wrote.
Cook, Belleville City Clerk and a Republican running for St. Clair County Circuit Clerk in November, claims that the state constitution establishes that the only process for a judge to retain office is through a non-partisan retention vote that requires 60 percent voter approval - not simple majority partisan 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 sued for review of that result in Sangamon Circuit Court.
In the case before Sanchez - an appointed not elected judge - both sides rely on Article VI, Section 12 of the Constitution, which outlines processes for judicial election and retention. They disagree on its "plain meaning."
Kasper has argued that the phrase "may run for retention" in that section of the law denotes "permissiveness," and therefore does not disallow the option to run for election. He says the challenge to the judges' ballot access rests on their eligibility, which Kasper says they clearly are.
Weishaar says the judges are "hung up" on the word "may."
"It is obvious that the framers did not say: 'incumbent judges you 'may' have a choice of either running on your own record on non-partisan ballot pursuant to Section 12(d) or if you don't like that choice you 'may' alternatively run in a contested election with your party as if you are running for the first time pursuant to Section 12(a),'" Weishaar wrote.
He further states that the judges' position "twists" and "distorts" the meaning of Article VI Section 12(d) when they put forth the argument that the section says "nothing what a sitting judge may not do."
"Petitioner has yet to find any Historical Note to the Illinois Constitution or anything at all in the transcripts from the Illinois Constitutional Conventions to support Respondents' fantasy that a sitting judge has choice of running for retention or for re-election," Weishaar wrote.
He also states that the very purpose of judges seeking retention is to run on their records in non-partisan races.
"Retention is the form of tenure contemplated by the framers of the Constitution to guarantee the independence of the judiciary and at the same time, allow the electorate to remove those judges in whom, for one reason or another, they no longer had any confidence," he wrote.
Weishaar also pointed to the judges' argument that voters will be given less of a choice if their names are removed from the ballot, saying that position is "disingenuous."
"If they are removed from the Ballot, they did it to themselves," he wrote. "What is disingenuous are the actions of Respondents," he wrote.