Madison - St. Clair Record

Wednesday, August 21, 2019

Fourth District Appellate Court decision was judicial activism run amok

Letter to the Editor

By The Madison County Record | Aug 11, 2016

To the Editor:

The 11 tortured pages of the Fourth District (appellate court decision) is a classic example of judicial activism run amok. While we have become accustomed to courts destroying legislative enactments, in this case the court cavalierly ignored the efforts of the Constitutional delegates to remove judges, once elected, from the political process which too often involves accepting support and money from lawyers who appear before those judges.

The transparent method used by the Appellate Court was to ignore the obvious ambiguity created by the Constitutional provisions that seem to conflict. The Appellate Court ignored the fact that four members of the State Board of Elections opined that the judges could not stand for election and four others voted they could. Even Baricevic and Haida obviously thought they couldn't run for election to their own seats; otherwise, they wouldn't have filed for each other's vacancy.

There is no other explanation for their cross filings. To avoid the substance of the singular issue - do judges have an option to seek reelection - the court focused on one word: "may" and concluded an option was thereby created. In effect, the Appellate Court judicially legislated the word "alternatively" into the Constitution to create an option where none existed. Had the delegates intended such an option, they would have so stated. "Expresio Unius Exlusio Alterius" Vol. 34 Ill. L. & Prac., Statutes 65.

If the devious triumvirate had sincerely intended to run as lawyers seeking judicial office (not as judges seeking to use the power and influence of their status to perpetuate their judicial careers) they would have resigned on or before the filing date for the primary - they could have avoided the obvious charade that has exposed the judiciary to ridicule.

Why didn't they? Presumably they assumed no one would have the courage to challenge the judges and the vaunted political machine in the 20th Judicial District. Presumably, they knew they had no chance to get 60 percent in a retention election.

So, they distort the clear meaning of the Constitution and ignore the aforementioned statutory construction that the mention or enumeration of one or more certain a statute implies the exclusion of all other things or modes of action.

The fact that the popular election of judges leads to corruption cannot be denied - a politically dominant St. Clair County lawyer is currently under investigation by federal and state authorities including the ARDC for making large 'straw party' political donations through his secretaries and others to conceal his donations.

To seek election as a circuit judge one must be an Illinois lawyer and a resident of the judicial district at the time of filing his nomination petition. Had the triumvirate been less arrogant, they could have resigned before the primary and could have argued their position with less ridicule.

There is a more obvious/logical interpretation of "may" - it gives the judge the option not to seek the office at all. Had the drafters used the word "shall," as suggested by the judges’ lawyer Michael Kasper, rather than "may," judges would experience involuntary absurd interpretation.

What I can no longer ignore is the continued desecration of the law in a once great nation (America) that was the embodiment of hope for those of us (past and present) who exalted the rule of law and equal justice created and perpetrated by judges who were neither stupid or corrupt...apparently some are both.

The Fourth District's opinion reeks of Clintonian sparseness – “it depends on what the meaning of ‘is’ is.”

Dallas Cook


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