Madison - St. Clair Record

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Sangamon County judge finds that retention is not the only way to stay on bench

By Ann Maher | Feb 24, 2016

SPRINGFIELD - Sangamon County Associate Judge Esteban Sanchez has ruled for St. Clair County judges John Baricevic, Robert LeChien and Robert Haida, finding that the state constitution gives them the option, as sitting judges, to run for election. 

Sanchez denied Belleville City Clerk Dallas Cook's petition for review of a Jan. 20 State Board of Elections deadlock vote that in effect allowed the judges' names to be placed on the March 15 Democratic primary ballot 

"The voters of the 20th Judicial Circuit will ultimately have a choice on primary and Election Day," Sanchez wrote in an order entered Tuesday. 

"They will decide if they approve of the Judges' past judicial record and their conduct by casting their votes for or against the Judges. The voters are not being denied the opportunity to exercise their rights to vote for these Judges."

Cook, a Republican who is running for St. Clair County Circuit Clerk in November, had argued 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. 

In August, the three judges submitted letters of resignation to the Illinois Supreme Court, indicating that they intended to seek election to the seats they were vacating rather than to run for retention. In the meantime, they would remain in office while running for election as their resignations would not take effect until December, on the last day of their current terms.

After the judges filed nomination paperwork, Cook filed objections with the State Board of Elections. The consolidated cases went before a hearing examiner, hearing officer and the full board composed of four Democrats and four Republicans. At each level of decision, including full hearings before the elections board and in Sanchez's court, the outcome has favored the judges.

"[A]s unsavory as the Judges maneuvers may seem to Petitioner, the fact that the Judges delayed their effective day of their resignation allowing them to remain as a sitting judge is irrelevant because they are eligible and not prohibited from filling the vacancies they created," Sanchez wrote.

Sanchez sided with arguments made by the judges' attorney, Michael Kasper of Chicago, with respect to wording in Article VI, Section 12(d) of the state constitution which lays out a process for judges seeking successive terms by using the phrase "may file...a declaration of candidacy to succeed himself."

"This provision is plain, clear, explicit and unambiguous," he wrote.

"Because Section 12(d) is not ambiguous and the word 'may' as used in the section connotes permissiveness, the section gives a sitting judge wanting to remain in office for another term the option of seeking retention, but he may choose not to do so."

Sanchez wrote that in interpreting the constitution, a court must look at the entire document as a "whole, and every section relating to the subject must be examined."

Cook's attorney, Aaron Weishaar of St. Louis, had argued that the framers' intent, as stated through its plain meaning as well as Historical Notes, was to ensure that judges run on their records on non-partisan ballots through a retention vote.

But Sanchez found that the interpretation sought by Cook would put provisions of Article VI in conflict with the plain meaning of the state constitution. He disagreed with Cook that drafters intended to exclude sitting judges from the election process.

"Petitioner's interpretation would require Section 12(a) to include an exception for sitting judges by reading as follows: A person eligible for the office of Judge, except a sitting judge, may cause his name to appear on the ballot as a candidate for Judge at the primary and at the general or judicial election for submitting petitions," he wrote. 

He also found that Section 11 does not outline exclusions for sitting judges.

"To interpret these sections in the manner suggested by Petitioner would improperly impose exceptions, limitations, and conditions on the Constitution which were not intended by the drafters," he wrote. "It is therefore, improper for the Court to depart from the plain language of the Constitution by reading exceptions and limitations into Sections 11, 12(a) and 12(d)."

Sanchez also wrote that if the framers wanted retention to be the only means for a sitting judge to stay in office, they could have said so. 

"They could have used the words 'shall' or must,'" he wrote. "They did not. Instead, they chose the word 'may,' which allows the judge the option to seek retention or to seek to remain in office by other methods, namely, election or appointment, as these are the only other two constitutionally approved methods of becoming a judge."

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