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Drug testing, public confidence and retention question remain issues in judicial races in St. Clair County

By Ann Maher | Nov 1, 2016

More than three years since the exposure of illegal drug use by St. Clair County judges and a county probation officer, the high profile scandal remains a prominent issue in the election of local judges this year.

What makes this cycle different from the 2014 election when the seat of a judge imprisoned for heroin possession was up for grabs, is the decision of three incumbent circuit judges who were on the bench at the time of the scandal - including the court's chief judge - to reject the tradition of retention that all Illinois judges (except one) have followed since 1970.

Instead, Chief Judge John Baricevic, and circuit judges Robert LeChien and Robert Haida in August 2015 submitted resignations to be effective in December 2016. Their actions created vacancies to their own seats. They then opted to run for election to their vacancies which would only require 50 percent plus one to win, versus retention which requires at least 60 percent voter approval.

The judges have faced legal and electoral challenges, but the state elections board and two courts have ruled that they can remain on the ballot.

A central theme in these St. Clair County races is whether the drug issue of 2013, which came to light following the cocaine overdose death of judge Joe Christ and subsequently led to the imprisonment of former judge Michael Cook, has been properly dealt with and whether confidence in the judiciary has been restored.

The answers depend on who you ask.

Two of the three races voters will decide in a week are contested and one of the sitting judges faces no opposition.

The fiercest of the two contests is between Baricevic, Democrat, and Belleville attorney Ronald Duebbert, Republican.

Baricevic has maintained that the reason he, LeChien and Haida decided to run for election was so that they could openly discuss the drug issue. He said that had they run for retention, with no opposition and not on a partisan ballot, they would not have been allowed to campaign on issues.

"We have had a judge that died of a cocaine overdose," Baricevic said on a recent interview on 1260 AM radio program. "It's an issue that the voters want to hear about. When you run for retention, you're not allowed to campaign on issues. When you run for election you can...that's an issue that the voters wanted to hear about. And if I didn't run for election, I wouldn't be able to discuss it with them."

Before he was elected circuit judge in 2004, Baricevic served as county Chairman from 1991-2004; he served as St. Clair County State's Attorney from 1980-1990.

He was retained to his circuit court seat in 2010 with 62.7 percent of the vote. 

The judges' decision to run for election rather than running on their records has been criticized by groups including the Illinois Civil Justice League, which recently gave the incumbent judges a "not recommended" rating. The group's president said that had they run for retention they would have faced an “uphill battle” in effort to get 60 percent voter approval.

By running for retention, they “purposefully gamed the system" and subverted the retention protocol, said ICJL president John Pastuovic.

But Baricevic said the state constitution gives judges the option, that if they want to avoid the political process they can run for retention.

"If they want to give the voters a chance and have an opponent, that's their choice," Baricevic said.

When asked what is wrong with allowing judges to run on their records, Baricevic said that there was "nothing wrong with the idea."

"In either case, the voters decide," he said. "I think it's important to be able to discuss the issues that the voters want to hear about. And you can do that, and I think better and more thoroughly with the voters if you run for election."

On the question of whether confidence has been restored since the drug issue became public and what role drug testing can and should play, Baricevic said that he supports random drug testing for judges.

He told the Record in a previous interview that he has never been against drug testing for judges, but that the upper courts prohibit mandatory random drug testing of judges and any elected officials. He said he had asked the Illinois Supreme Court for authority to do a mandatory drug testing program, but was denied. He then said he opted for a voluntary screening program, in which he participates.

Baricevic said that approximately 40 percent of Twentieth Judicial Circuit judges have participated, but that information regarding participants and results are confidential.

"All three of the current judges that are up for election...have all taken drug tests," he said.

Baricevic has provided results of drug tests he took in August 2015 and this past August, showing clean results.

Duebbert has campaigned vigorously against Baricevic, saying the chief judge has not effectively dealt with the court drug problem.

He said his experience trying cases for 26 years qualifies him for the position. He also said he would pledge to keep the influence of money and politics out of the court system. He has been drug tested and has made public his clean results.

In a recent interview on an AM 1260 radio program, Duebbert said that it was a "great assumption" that all three judges running for election have passed drug tests.

Duebbert said that Baricevic is the only one of three judge candidates who have released results. He said that Baricevic also is the only one of the three judges talking about drug testing. He further questioned how the public can have confidence in a program when rules for participation, rules for removal and results of tests are not made public.

Duebbert claims that Baricevic's public position on drug testing is at odds with statements he has made privately.

"John Baricevic is misleading the public and he’s actually flimflamming the public when he says a drug screening program exists when he won’t tell them what that program is, when it was [started], who participates and what are the parameters of participation,” Duebbert said in an interview with the Record.

Duebbert also has been outspoken and critical of the judges' decision to opt for election versus retention.

He said that Baricevic's move to run for election rather than retention took away the right of 40 percent plus one of voters to decide whether he keeps his job and instead "granted himself the right to keep his seat. He gave himself 10 percent of the vote."

Judge drug testing 

"Drugs are still an issue," said St. Clair County Circuit Judge Stephen McGlynn during an interview Monday.

McGlynn on Wednesday clarified that the issue is pertinent when applicants for associate judge seek his support and his remarks were not intended to imply that a current problem exists.

McGlynn was appointed in 2013 to fill the seat of judge Michael Cook after he was arrested on heroin possession and gun charges. The arrest came two months after the death of judge Joe Christ, who died from cocaine intoxification while with Cook at a Cook family hunting lodge in Pike County, Ill.

A year later, McGlynn, a Republican, ran for the open seat he had been appointed to in a race against associate judge Heinz Rudolf, a Democrat. The drug scandal was central to the campaign, and McGlynn's election marked the first time in many decades that a Republican won a judgeship in St. Clair County.

The reason the three-year old drug scandal continues to be an issue can be explained by the decision of the three judges who chose to "run for election rather than on their record," he said. "That is the issue."

McGlynn said that if there had been a voluntary drug screening or drug testing program for judges in St. Clair County after Cook's arrest in 2013, or if there currently is one in place, he has not been made aware of its existence.

He said that at the time the scandal first erupted there was a "great deal of resistance" to sitting judges submitting to drug tests voluntarily. The exception, he said, was for those on the ballot in 2014. Both he and Rudolf had tested clean and provided results to the public.

As one of 12 elected circuit judges in the Twentieth Judicial Circuit who decide on the appointment of 13 associate judges (every four years), McGlynn said he only supports applicants who are willing to submit to drug testing.

"Unless they can demonstrate they can pass a drug test I won't vote for them," he said. "Every time there is an appointment or re-appointment I take a drug test myself."

He said that "for the most part" persons applying for associate judge have complied with his request. "There are some who did not," he said.

LeChien v. Cason

LeChien has not spoken publicly about drug testing of judges, but he has adamantly defended his decision to run for election over retention. 

He said he believes that voters who adopted the state constitution in 1970 intended to give judges both options and that the Fourth District Appellate Court in September "very clearly" agreed. 

LeChien was first appointed to the bench in 1987. In 1998, he was elected on the Democratic ticket as resident circuit judge in St. Clair County. He ran for retention in 2004 earning 69.4 percent of the vote and in 2010 he ran for retention and earned 66.2 percent of the vote.

When asked why not run for retention this time, LeChien pointed to the "fierce" negative attacks that Illinois Supreme Court Justice Lloyd Karmeier faced in 2014, when he eked a narrow victory in spite of more than $2 million spent against him in the final weeks of the campaign. Karmeier was initially elected as a Republican in 2004. Judges running for retention run on non-partisan ballots.

During a recent interview on an AM 1260 radio interview, LeChien said that Karmeier's experience in which "special interests" attacked his record in the 11th hour of the 2014 election season proved how vulnerable sitting judges can be. 

"I could give you the words of Chief Justice Karmeier...he said that the 60 percent threshold makes judges unfairly vulnerable to the influence of special interests bent on unseating them," LeChien said. "He thought the 60 percent threshold allowed a vocal minority to unseat and remove an otherwise qualified judge." 

Funding for the committee that attacked Karmeier in 2014 included prominent plaintiffs' attorneys, mostly associated with the Korein Tillery firm of St. Louis.

The Tillery firm also supported Karmeier's opponent Gordon Maag in 2004. LeChien's retention campaign committee received contributions from partners Sandor Korein and Stephen Tillery in 2004. 

LeChien did not specifically denounce the attack against Karmeier. 

As for the last minute nature of negative campaign attacks in election races versus special interest funding of anti-retention races, he said that at least in election races you you are "dealing with a known enemy or the person you are running against, not a negative vote."

He said he didn't agree that it is an advantage for an incumbent judge to run on his or her record 

"The notion that running on your sounds good," he said. "It's not the case.There isn't any way an informed voter can find out much about a judge's record."

Laninya Cason is running on the opposite ticket of incumbent LeChien, although she has not always identified as a Republican.

Cason served as an associate judge from 2003-2015. She had a falling out with the Democratic Party and ran as a Republican for circuit judge in 2012, but lost to Zina Cruse

Regarding the fallout of Cook's drug use, Cason said it is still a concern among the public, but that there are "more pressing issues," such as "the credibility of the judiciary and the integrity of judges."

She was serving as an associate judge while Cook was on the bench and as Christ went from an assistant state's attorney into the role of an associate judge - for about one week until his death.

At the time, she said there was a "free-wheeling" atmosphere in the court system where "anything goes." Cason said the behavior was protected by the system and it "stained" the judiciary.

She said that there were "obvious physical signs" that Cook was using drugs but they were ignored.

As for drug testing protocols in place after Cook's addiction was made public, Cason said she was never made aware of any voluntary drug screening or drug testing program.

"I never received any correspondence," she said. "I was on the outside. As a sitting judge, I never received any information."

But Cason said she supports the concept of drug testing for judges.

"Obviously, we don't want a crackhead on the bench or have someone hallucinating when they are making rulings on the lives of residents," she said. "Judges should be held to a higher standard."

Cason said she came into the judiciary after having worked in the private sector, not "as part of inside government work crew."

She said that she has resisted the culture of the status quo, and that her low ISBA poll numbers should inspire "great public confidence" because the polling automatically favors Democratic candidates and lacks credibility. She said the results shows that she will represent the public interest, not what she describes as "insider" influence.

The courthouse and county administration is run by "insider" lawyers "from top to bottom," she said. "From the county board, to circuit clerk to state's attorney. They run the county."

She said she is "sick of" the "political gamesmanship" in the court system, particularly the three Democrat judges who are running for election instead of retention, seeking a "10 percent discount."

Incumbent Circuit Judge Robert Haida, Democrat, is running unopposed.

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