Legal argument: Three St. Clair County judges who avoided judicial retention election thwart state constitution

Three sitting St. Clair County judges should not be allowed to inject politics into whether they should remain on the bench by avoiding the more rigorous judicial retention election and running instead as Democrats in the general election, according to a 14-page legal argument filed in Sangamon County Court.

The argument, filed Monday by St. Louis attorney Aaron Weishaar on behalf of Belleville City Clerk Dallas Cook, seeks removal of the three judges from the November ballot on grounds that by avoiding a retention election where 60 percent of the vote is required, they are violating the intent of the Illinois Constitution. The judges are John Baricevic, Robert Haida and Robert LeChien.

“Since judges are to be initially elected on a partisan basis, the very purpose of judges seeking retention...is to take party politics off the table...The actions of Baricevic, Haida and LeChien run afoul of the Illinois law as they have placed themselves right back into partisan politics while sitting on the bench,” Weishaar wrote.

Cook, a Republican candidate for St. Clair County circuit clerk, filed objections to their candidacies with the State Board of Elections, which recently deadlocked 4-4 on whether to accept a hearing officer’s recommendation to accept the candidacies. Cook then filed an appeal with the circuit court.

Baricevic and Haida have said that by taking the unusual tactic of resigning their positions effective in December 2016, and running in November as Democrats, they are better able to comment on issues that voters might have concerning the judiciary, and have actually exposed themselves more to the voters because they might have been faced with primary challengers. However, that didn’t happen.

Baricevic said running in the general election eliminated the possibility that the Illinois Supreme Court and not voters would decide how a vacancy is filled caused by a judge running for retention who failed to reach the 60 percent threshold. Republican Supreme Court Justice Lloyd Karmeier would likely be called upon to fill such a vacancy for the 20th Circuit.

Haida is running unopposed. Baricevic faces Republican challenger attorney Ron Duebbert, and LeChien faces Republican Laninya Cason, a former associate judge and Democrat.

The office of the state attorney general represents the judges. They have until Friday to file a response for a hearing set for Feb. 19 in the circuit court. No matter what the decision — whether the judges are removed from the ballot or not — the case is likely to end up before the state Supreme Court on an expedited basis.

In his written argument, Weishaar said, “These three judges have decided to make the entire election process easier upon themselves. Presumably, they saw the writing on the wall and came to the conclusion that it will be much more difficult for them to stay in office if they need to have 60 percent of the electorate to vote in their favor.”

Citing the state constitution, which does not specifically state that a judge cannot resign and then run in the general election, Weishaar wrote, “...the precedent to be created is dangerous for a number of reasons and clearly would not be the intent of the Illinois Constitution.”

The first time the tactic was used, according to election process experts, was in 2006 when former St. Clair County Circuit Judge Lloyd Cueto, a Democrat, did the same thing and won slightly more than 53 percent of the vote and reelection in the November general election. There were no formal objections to Cueto’s candidacy.

But Weishaar warned in his court papers that the ploy actually takes control of the judge selection process away from the people and gives it to judges that have been elected.

By resigning and then running in the general election — Haida is running for Baricevic’s spot and Baricevic is running for Haida’s while LeChien is running for his own — “The sitting judge could therefore conceivably control the entire election process for his own ‘self-created vacancy,’ including the timing of his resignation, effectively concealing it until he files his resignation,” Weishaar wrote.

Weishaar stated, “In conclusion and based upon the above, the Illinois Constitution does not give sitting judges a choice of either running for retention or running for re-election after he or she has been elected to office.”

This story was originally published February 11, 2016 at 12:27 PM with the headline "Legal argument: Three St. Clair County judges who avoided judicial retention election thwart state constitution."