A Sangamon County Circuit Court judge on Friday sharply questioned both sides regarding whether judges should face election or retention, promised a written decision and predicted that whatever he decided would find its way to the Illinois Supreme Court.
Associate Judge Esteban F. Sanchez asked the challenger’s attorney why the Illinois Constitution would say judges “may” run for retention if there is no choice involved. Three St. Clair County judges submitted resignations effective at the end of their terms so they could run for election instead of facing the more rigorous retention vote. He also asked Belleville City Clerk Dallas Cook’s attorney Aaron Weishaar where it says in the constitution that the only choices an incumbent judge has is between running for retention or resigning.
Weishaar responded that nowhere is that written in the constitution but that this was the intention of the document’s framers.
Then Sanchez turned to the three judges’ attorney and asked why a complicated document such as the Illinois Constitution would not contain a clause saying it was OK for judges to resign and then run for election.
“That is the thing here,” said Michael Kaspar when he was given a chance to respond. “If they meant ‘shall,’ why didn’t they write ‘shall?” Kaspar argued that another provision of the state constitution, that any qualified person has the write to add his or her name to the general election ballot, is proof that what the three judges did should be allowed to stand. The only constitutional qualifications for a judge is that he or she be licensed in Illinois as an attorney, is a citizen of the U.S. and resides in the jurisdiction where the election will be held.
“The constitution’s language is plain,” Kaspar said. “They have a constitutional right to appear on the ballot. If they meet eligibility requirements that’s really the sole question.”
St. Clair County Democratic judges John Baricevic, Robert Haida and Robert LeChien were up for a retention vote, which requires 60 percent of the voters choose to keep them on the bench. Instead of facing that vote, they decided to resign effective in December and filed to run in the general election, where they only need one vote more than any opponent.
The unusual move was believed to have been first used in Illinois in 2006 in the re-election of Democrat and former judge Lloyd Cueto.
This may be irregular, but it is not illegal.
Michael Kaspar, attorney for the three judges
The trio’s candidacies were legally challenged by Cook, a Republican who is also on the November ballot for county circuit clerk.
The hearing in circuit court resulted after the Illinois State Board of Elections deadlocked 4-4 in January at their meeting in Chicago on whether to allow the the three judges on the ballot. The board’s hearing examiner had recommended leaving the judges on the ballot. The board voted to seek a nonbinding opinion from the Office of the State Attorney General but none has yet been filed.
Weishaar, who represents Cook, submitted written arguments that include a contention that avoiding the retention election undermines the state constitution.
Cook has said, “You have judges that are not following the law, and these are the people who represent the law. It’s incredible.”
Kaspar, the lawyer for the judges, has argued that, “This may be irregular, but it is not illegal.” The judges are also represented by an attorney from the office of the state attorney general but none appeared at the hearing.
The Illinois Supreme Court is prepared to accept the judge election question on an expedited basis because of the relatively short time until the election.
In previous statements to the News-Democrat, Baricevic and Haida have defended their decision to run in the general election by stating that it resulted in more democracy because they potentially exposed themselves to two elections: the primary and the general election. None of the judges face a primary challenger. Haida is running unopposed. Baricevic is challenged by Republican lawyer Ron Duebbert and LeChien faces former Democrat associate judge Laninya Cason, who is now running on the Republican ticket.
Baricevic and Haida have also said publicly that running in the general election guarantees that the voters will pick a judge. If they ran for retention and failed to get the required 60 percent “yes” votes, a member of the state Supreme Court would be called upon to pick their successor until another election could be held. In the case of the 20th Circuit, which includes five counties, Republican Supreme Court Justice Lloyd Karmeier would likely choose someone to fill a judicial vacancy.