Madison - St. Clair Record

Saturday, September 21, 2019

Challenge to St. Clair County judges' candidacies expected at Supreme Court; Judges have Madigan lawyer on their side

By Ann Maher | Aug 30, 2016

Not too many Chicago attorneys enjoy household name recognition in the Metro-East, but one connected to powerful Democratic Illinois House Speaker Michael J. Madigan may come close.

Michael Kasper, who at Madigan's behest successfully sued to keep the Independent Maps Amendment off the November ballot, also has successfully kept three local judges on the ballot in November - at least so far.


Time will tell whether the Illinois Supreme Court, as it did on Aug. 25 in upholding Kasper's arguments to keep legislative redistricting in the hands of politicians, will again side with Kasper in his representation of Circuit Judges John Baricevic, Robert LeChien and Robert Haida.

The St. Clair County judges' candidacies have been challenged by Dallas Cook, Belleville City Clerk, who argues that the judges have circumvented election law by running for election as if for the first time in violation of the state constitution.

Cook is represented by St. Louis attorney Aaron Weishaar, who is expected to appeal a lower court decision in favor of the judges to the Illinois Supreme Court by Wednesday.

Whatever decision the justices make will ultimately affect them personally when they contemplate future runs for office.

Last August, the St. Clair County judges submitted resignations 16 months in advance to be effective when their current terms expire this December. They did so in order to run for election to the vacancies their resignations created, rather than to run for retention.

Running for election on a partisan ballot requires a simple majority to win, versus retention which requires a higher threshold of three-fifths voter approval, or 60 percent.

In spite of a 40-plus year record of all Illinois judges (except one) running on non-partisan retention ballots to keep their seats, Kasper - on behalf of Baricevic, LeChien and Haida - adopted a position that nothing in the Illinois State 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.

Kasper argues that Article 6, Section 12(d) of the constitution, which pertains to judicial elections, 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 says.

Weishaar has argued that the judges are "undermining" the intent of the constitution.

He has argued that the word "may" in Section 12(d) gives sitting judges an obvious choice: "(they) may seek retention to stay on the bench, or they may walk away at the end of their term.”

In court briefs, Weishaar has written that the constitution clearly gives judges a right of retention and that nothing in it describes a process by which a judge has a right to choose if he wants to run a partisan race or run on his own record.

The framers of the constitution gave voters the power “to cast out a judge whose performance was not good enough to get approval of 60 percent of the electorate," he wrote.

“Once on the bench, a judge should be independent from political pressures unlike those of the political branches of government.”

Weishaar has further written that allowing judges to run in partisan elections would open a door for them to be influenced by those who contribute the most to their campaigns.

The only other time in state history that a judge resigned in order to run for election - thereby avoiding a close retention vote - occurred in 2006 when another judge from St. Clair County, Lloyd Cueto, did the very thing Baricevic, LeChien and Haida are attempting.

Judges battle to stay on bench

Running as Democrats, the Twentieth Judicial Circuit judges seated in St. Clair County were elected in their party primary in March. Two of the three - Baricevic and LeChien - will face opposition from Republicans Ron Duebbert and Laninya Cason, respectively, if their candidacies are deemed valid by the Supreme Court.

To date, Kasper has come out on top at every level of challenge - first at the Illinois State Board of Elections where a 4-4 partisan vote allowed their candidacies to stand.

Cook then filed suit in Sangamon County Circuit Court, where Associate Judge Esteban Sanchez found that the word “may” contained in the relevant part of the constitution means that the judges might also choose election. His Feb. 23 ruling was appealed by Cook to the Fourth District Appellate Court.

Parties argued before the Fourth District panel that included Justice John W. Turner, Thomas Harris and Lisa Holder White, on June 7.

On July 28, the panel agreed that the word "may" indicates something that is "permissive rather than mandatory."

Southern Illinois University-Carbondale law professor Steven Macias criticized the decision.

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," he said.

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

When asked why he thought the appellate court panel ruled as it did, Macias offered: "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."

Madigan's political map-making prevails

Kasper, with the law firm of Hinshaw & Culbertson, also serves as general counsel for the Illinois Democratic Party. His resume includes past representation of President Obama and former President Clinton in election litigation. He also is known for having successfully defended litigation that challenged the residency status of Chicago Mayor Rahm Emanuel during his first campaign in 2011.

Emanuel served as Obama's first chief of staff from Jan. 20, 2009 until Oct. 1, 2010.

In the recent challenge against the Independent Map Amendment, Kasper filed suit in Cook County Circuit Court in May on behalf of a group identified as People’s Map.

In July, Cook County Circuit Judge Diana Larsen sided with Kasper.

Proponents of the referendum then filed a direct appeal with the Illinois Supreme Court, which last week upheld Larsen's ruling 4-3. The court opinion, authored by Justice Thomas Kilbride held that the amendment's language did not meet state constitution requirements for citizen amendments.

The proposed referendum was launched as an attempt by a group of Illinoisans seeking to wrest out of the hands of the Illinois General Assembly - and the party leaders that dominate it - the task of redrawing Illinois’ legislative district maps every 10 years. Critics of the current process have said the process is needlessly political and partisan, resulting in odd-shaped gerrymandered districts which produce situations in which incumbents and party leaders can unduly influence the process of selecting who represents Illinois voters in Springfield.

Supporters of the current process, including Madigan, however, have said the process should be controlled by officials elected by voters, and not an independent group selected by other means.

The Independent Map Amendment proposal, for instance, sought to entrust the task of redrawing legislative districts to an 11-member committee selected by the Illinois Auditor General, two justices of the Illinois State Supreme Court and others, and would be charged with the task of determining legislative district boundaries based on, among other factors, the total population of the district, while respecting minority populations, city limits and other community boundaries.

The group behind the Independent Map Amendment included both Democrats and Republicans, and leaders in Illinois commerce and civic organizations, including chairman Dennis Fitzsimmons, chair of the Robert R. McCormick Foundation and former chairman and CEO of Tribune Company; former Illinois Gov. Jim Edgar; Bill Daley, former Secretary of Commerce under former President Bill Clinton and brother of Mayor Richard J. Daley; Sylvia Puente, executive director of the Latino Policy Forum; Rosanna Marquez, state president, AARP Illinois; Mary Kubasak, president, League of Women Voters of Illinois; Don Thompson, former CEO, McDonald’s; and former Illinois Lt. Govs. Sheila Simon and Corinne Wood, among others.

The People’s Map lawsuit was filed on behalf of a group including Chicago Housing Authority Board Chair and former executive vice president of ComEd John Hooker; Chicago Board of Education President and former ComEd chairman and CEO Frank Clark; the Rev. Leon Finney, a community organizer and head of the nonprofit Woodlawn Community Development Corporation; former CHA chair and housing developer Elzie Higginbottom; Raymond Chin, chairman of the board of the Chinatown Chamber of Commerce; Fernando Grillo, senior vice president of investment banking firm Estrada Hinojosa and former head of the Illinois Department of Financial and Professional Regulation; Jorge Perez, executive director of the Hispanic American Construction Industry Association and appointed member of Mayor Rahm Emanuel’s Chicago Community Development Commission; and Craig Chico, president of the Back of the Yards Neighborhood Council on Chicago’s South Side.

While the Independent Map Amendment had secured double the number of signatures required to put the amendment on the November ballot - 563,000 - the People’s Map lawsuit asked the court to declare the Independent Map Amendment cannot be placed on the ballot because it allegedly violates several safeguard provisions in the Illinois state constitution.

The lawsuit said the amendment would “remove the authority of the democratically elected General Assembly and the Governor to enact redistricting legislation by law and replace it with a system involving the Auditor General, two members of the Supreme Court, and two new unelected government bodies.”

This would violate Article XIV of the state constitution, the lawsuit said, because it would impose new duties on the Auditor General; strip the state Supreme Court of its oversight of the redistricting process; require Supreme Court justices to declare a political affiliation; and doesn’t allow the Illinois Attorney General to sue “in the name of the People of the State of Illinois concerning redistricting.”

The lawsuit alleged the Independent Map Amendment would also violate Article III of the state constitution by presenting “separate and unrelated questions in a single ballot proposition.”

Jonathan Bilyk contributed to this report. 

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Illinois General Assembly Illinois House Speaker Michael J. Madigan Illinois Supreme Court

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