Madison - St. Clair Record

Sunday, February 16, 2020

SIU law professor criticizes Fourth District ruling on judges' candidacies; Says 'literalism' doesn't require 'all that much thinking'

By Erik Derr | Aug 10, 2016

General court 4

CARBONDALE --- Some folks in St. Clair County were apparently so upset over three local judgeship races, they left angry voice mails with the state's board of elections.

In January, the Illinois State Board of Elections voted 4-4 on the request of incumbent St. Clair County Circuit Judges John Baricevic, Robert Haida and Robert LeChien, all Democrats, to resign from their posts and then run for the same positions in contested elections.


The decision effectively cleared the way for Baricevic, who faces Republican Ronald Duebbert, LeChien, who faces Republican Laninya Cason, and Haida, who is running unopposed, to potentially win their posts back with simple majorities instead of the 60 percent of all cast votes needed on the non-partisan retention ballots, long the standard by which sitting judges have sought to keep their posts in Illinois.

Ken Menzel, general counsel for the Illinois State Board of Elections, told the Record the board office fielded calls from from "people that didn't like the way the decision went down when it was at the state officer's electoral board level before it got into the court."

He added that those associated with the board typically "aren't too focused on the political ripples that flow out of something. We attempt to apply the law as best we can ascertain it, and when the matter is before us and to the extent that the law is unclear, that's what the judicial process is for."

Menzel did not provide complete details on calls received by his office. But he said, "what I was catching was anger."

The elections board action has been opposed from the beginning by Belleville City Clerk Dallas Cook, a Republican who himself is running for St. Clair County Circuit Clerk in the upcoming Nov. 8 election.

Arguing that Baricevic, LeChien and Haida are attempting to circumvent elections procedures set in the state constitution, Cook filed suit first in Sangamon County Circuit Court where Associate Judge Esteban Sanchez, ruled Feb. 23 that the word “may” -- contained in Article 6, Section 12 of the Illinois Constitution, which states a judge may stand for retention -- means the judges have the option to choose either to run for retention or election.

Cook appealed Sanchez's decision to the Fourth District Appellate Court, which upheld the lower court's decision on July 28.

"While legitimate public policy arguments may exist for limiting elected judges to the retention process only, the 1970 Constitution was not written with such a limitation, and we are bound to uphold the constitution as it is written," wrote Justice John W. Turner, who sat on the panel along with Justices Thomas Harris and Lisa Holder White.

By agreeing "may" indicates something that is "permissive rather than mandatory," as the opinion said, it seems "some judges think it is entirely unproblematic to treat a legislative drafter's handiwork as nothing more than a collection of words with no overarching purpose," Steven J. Macias, a law professor at Southern Illinois University, told the Record.

"They interpreted individual words and phrases rather than Section 12 as a whole, as a unified constitutional provision with a clear purpose."

The appellate court ruled that the text of the state constitution is not ambiguous about whether judges can retain their offices, "yet at least three different ways occur to me as to how the answer is not only ambiguous, but perhaps the opposite of what the court decided," Macias said.

"Section 12(a) applies to an individual wishing to be a 'a candidate for Judge,' while Section 12(d) applies to 'the judge’s candidacy' for 'retention.'"

Also, Macias said, "Section 12(a) applies to a 'person eligible for the office of judge,' which is an odd way to refer to an incumbent judge. By contrast, Section 12(d) only applies to 'Judges seeking retention,' which seems like a more natural way to describe what is going on with the facts in the case."

All that considered, "the structure of Section 12 presents a very linear way of staffing the courts. Subsection (a) discusses the initial election procedure, (b) the creation of a vacancy, (c) the filing of a vacancy, and (d) the retention of a sitting judge. The purpose behind Section 12’s subsections is obvious from its structure. Only a hyper-textual literalism could ignore the plain meaning," said Macias.

Nonetheless, "the court says it will not consider legislative history or public policy because it has not found the language ambiguous and is thus in no need of extrinsic aids...the court makes no attempt to harmonize Sections 12(a) and 12(d)."

So, why did the courts end up ruling as they did?

"I can only offer conjecture," Macias said.

"The forgiving reading is that some judges, perhaps many, tend toward literalism because it's the simplest thing to do. It doesn't require all that much thinking or grappling with text. The less generous reading is that judges, being self-interested individuals, find it appealing to have more, rather than fewer, options for reelection."

Menzel, the election board's general counsel, suggested Baricevic, LeChien and Haida may believe they stand a better chance with the lower election threshold because there's currently an equilibrium in St. Clair County between registered Democrats and Republicans.

Former Circuit Judge Lloyd Cueto followed a similar strategy in 2006 and won his seat back as a Democratic candidate with a 56 percent vote majority.

Cook has insisted he will continue to fight the election rulings and appeal them to state’s highest court, provided he can find enough funds to cover mounting costs, which have reportedly topped $60,000. He said he has until later this month make a decision.

If Cook ends up going forward with the appeal and it is ultimately successful in removing the judges from the November ballot, they would not then be able to seek retention -- and would have to vacate their seats Dec. 4.

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