On a warm July day in 1970, Constitutional Delegate Wendell Durr, a respected attorney and future judge from Madison County, made some unique observations about whether the 1970 Constitution should continue the concepts adopted by Illinois’ voters in the Judicial Article of 1964. The delegates were debating whether “laymen” were qualified to evaluate a judge and whether retention was a useful mechanism for the reelection of judges.
Forty-six years later, Illinois is still grappling with how to choose our judges. On Tuesday in Southern Illinois, two historic events intercepted judicial history: the simultaneous election of two Republican justices to the Fifth District Appellate Court, and the rejection of Chief Circuit Judge John Baricevic in his campaign to avoid standing for retention.
With the election of Justices-elect John Barberis and Randy Moore, voters chose candidates who had
been rated by Fifth District Illinois State Bar Association (ISBA) member attorneys with “meets requirements” scores of 43 and 61 percent, respectively, compared to their opponents’ scores of 97 and 92 percent.
When asked whether “experts” could better choose judges, Durr told his fellow delegates: “An expert in
Madison County we define as the man carrying a briefcase and speaking at least twenty-five miles away
from his home. […] The laymen evaluate a judge on the basis of whether he’s there, whether he’s
working, […] if he’s courteous to people, if he’s considerate of the problems of clients and witnesses and lawyers and court room personnel, if he’s independent in his thinking – and you can tell that by watching him, by listening to him in public debate. This idea that only the experts can choose the judges – don’t be too enamored of it. It just simply isn’t true.”
In 2016, a group of trial attorneys and their super-funded independent expenditure group used the experts’ evaluation (ISBA bar poll) and well over $1 million campaign cash in an attempt to convince the voters to choose the two judges more to their liking. Fortunately their motives were transparent to the voters and failed.
Historically speaking, this failed attempt has produced the first instance since the 1964 adoption of judicial elections of three Republican justices simultaneously sitting the Appellate bench in Mount Vernon, with a likely 4-3 GOP-majority after Justice Karmeier selects a new Circuit judge to sit in the seventh, assigned seat on the court.
This brings us to the usurpation of a Chief Judge by the voters, after he chose to forgo the 1964- established method of judicial retention, to instead choose an “old-style” reelection campaign that Constitution delegates worried could be corrupted by party bosses. Judge Baricevic fell way short of 60 percent – and then fell about 800 votes of 50 percent.
Delegate Durr argued on the Constitutional Convention floor, “[Let] the people choose those who will have the power, literally, of life and death over them, and the power to say who gets to raise a child, the power to say who gets in what other guy’s pocket and for how much money, the power to say who spends five years of his life in a cage – let’s either say we trust the people to choose those governmental officers or at least let’s say that those who have had the power must satisfy two-thirds of the people that they are not abusing the power.”
The courts are still determining whether future judges can avoid the question of retention (we urge the Supreme Court to read the arguments presented by 1970 delegates like Wendell Durr). However, after Tuesday, all sitting Illinois judges will now see that not even a Chief Judge can escape the voters’ scrutiny. The public puts much power into the hands of a judge. That fact deserves the respect given to it by the 1970 Constitutional delegates.