Judges John Baricevic, Robert Haida and Robert LeChien have filed paperwork that they will retire in December 2016 but will run for their judges’ jobs in the November 2016 general election, where they need only a majority of votes instead of the 60 percent required if they ran for retention.
Baricevic, the chief judge, said by running in the general election he will not be barred by the Code of Judicial Ethics from bringing up topics such as the effect former judge Mike Cook’s heroin arrest and imprisonment had on St. Clair County’s judiciary and the prevalence of heroin deaths in the metro-east. Haida and LeChien could not be reached for comment, but Baricevic said they too will run in the general election.
Former circuit judge Lloyd Cueto did the same thing in 2006 — avoiding a retention election that would have required a favorable vote percentage of 60 percent.
John Pastuovic, president of the pro-business Illinois Civil Justice League, said his group opposed avoiding a retention runoff when Cueto did it, and is opposed to the current plan by the three 20th Circuit judges based in Belleville. The circuit covers five counties: St. Clair, Monroe, Perry, Washington and Randolph.
“We were against this when it happened before. We thought it was wrong in 2006 and we think it’s wrong now,” Pastuovic said.
“I guarantee it is not what the framers of the (Illinois) Constitution had in mind when they created the retention system for judges. It was their intent that judges, once they served, should meet that higher standard of a 60 percent retention. And while this is not illegal, it’s certainly not what the authors of the Constitution intended,” he said.
Steven Lubet, a professor of law at Northwestern University in Evanston, who has written widely on legal ethics, said: “I think it’s within the law and I think the voters will have a choice. I don’t see anything unethical about it. But it’s virtually unheard of.”
Lubet said Baricevic’s concern that he could not have spoken of campaign issues while running for retention may be exaggerated.
“Things have loosened up,” Lubet said. “I think he could have spoken out in the general election or the retention.”
Circuit judges are up for retention every six years. In the 2010 retention election, Baricevic received 62.49 percent “yes” votes and LeChien received 65.25 percent “yes” votes. Haida was first elected in 2010.
“The legislature has established two very different procedures for running. When you run for retention your ability to engage the public is minimized. You don’t run as a Republican or a Democrat. You can’t endorse candidates. You can’t take positions on issues,” Baricevic said.
Referring to former circuit judge Cook, Baricevic said, “In my view, the Mike Cook issue is an important one. It ought to be discussed in a campaign and I believe if I run for retention I can’t do that. If I run for election, I can answer those questions and I can talk about addiction, not just as it relates to Mike Cook, (but) the issue of heroin addiction in our community.”
Baricevic also said that voter choice is increased in the general election as opposed to a retention election.
“When you run for retention you (must) get 60 percent of the vote but the voters don’t have a choice of who it’s going to be ... You don’t run in a primary. You don’t run against anybody. If you resign and run for a vacancy you have to run twice. By choosing the avenues that I have, I expose myself to the voters in the primary and I expose myself to the voters in the general,” Baricevic said.
He explained that if he ran for retention and lost, the Illinois Supreme Court would appoint a judge for two years. “The voters don’t get to pick who their judge is going be,” if a judge fails to receive 60 percent of the vote required for retention, Baricevic said.
Under state law, persons wishing to file to run for judge in the office that will become vacant and will be contested in the 2016 election must do so between Nov. 23 to Nov. 30, said Jim Tenuto, spokesman for the Illinois Election Board.
Ken Menzel, the general counsel for the state election board, said that after a review of the Illinois Judicial Code of Conduct, “I see nothing that prohibits these judges,” from filing in November to run in the general election in 2016.
“I’m not seeing anything in the Code of Judicial Conduct that would prohibit it,” said Menzel. “I have never heard of a scenario like this, but I guess it could happen.”
Cueto, rather than seeking retention, ran in the general election in 2006. Cueto, a Democrat, ran against Republican Paul Evans and won in the general election, which required only that Cueto receive more votes than his opponent.
At the time, Cueto said, “I decided to forego a retention vote and run in the general election because I choose to match up against an opponent and let the voters choose on the basis of legal ability, diligence and experience.”
“I must have missed that in 2006,” said Menzel, the election board lawyer.