Con Con ballot wording suit back in court on Wednesday

Separate suits filed by the Chicago Bar Association and Robert Costello et al. have been consolidated and are set for "hearing on the merits" on Wednesday, October 1, according to a copy of a September 25 order provided to For What It's Worth by Steven F. Pflaum, Chicago Bar Association General Counsel and a partner at McDermott Will & Emery.

Stephanie Potter wrote about the CBA's suit in the September 23 edition of the Chicago Daily Law Bulletin. Her story emphasized that the CBA has not taken a position for or against the calling of a new Illinois Constitutional Convention. Potter wrote, "The group says it brought the suit only to ensure that the referendum is fair and comports with the Constitution and Illinois law."

The CBA has raised two primary objections to the ballot language. The first of these concerns the "explanation" that will, pending the outcome of these suits, precede the actual "yes" or "no" question about calling the convention. Although the explanatory language may be found on the Secretary of State's website, the language actually comes from House Joint Resolution 137. Here is the controversial language:

Explanation of Proposed Call
This proposal deals with a call for a state constitutional convention. The last such convention was held in 1969-70, and a new Constitution was adopted in 1970. The 1970 Illinois Constitution requires that the question of calling a convention be placed before the voters every 20 years. In 1988 the electors rejected the call for a constitutional convention, with 75% voting against calling a convention and 25% voting in favor of calling a convention. If you believe the 1970 Illinois Constitution needs to be revised through the convention process, vote “YES” on the question of calling a constitutional convention. If you believe that a constitutional convention is not necessary, or that changes can be accomplished through other means, vote “NO” on the calling of a constitutional convention.

There was also an "explanation" on the 1988 ballot, but it was significantly different... and shorter (click to enlarge):

(This image comes from the Champaign County Clerk's blog, found at the indispensable Capitol Fax Blog.)

The CBA's second objection is to the "Notice" that would accompany the Con Con ballot question. Pursuant to statute (10 ILCS 5/16-6), the Notice would read (the caps being in the statute itself):

THE FAILURE TO VOTE THIS BALLOT IS THE EQUIVALENT OF A NEGATIVE VOTE. (THIS IS NOT TO BE CONSTRUED AS A DIRECTION THAT YOUR VOTE IS REQUIRED TO BE CAST EITHER IN FAVOR OF OR OPPOSITION TO THE PROPOSITION HEREIN CONTAINED.)

WHETHER YOU VOTE THIS BALLOT OR NOT YOU MUST RETURN IT TO THE ELECTION JUDGE WHEN YOU LEAVE THE VOTING BOOTH.

The objection to the "explanation" is that it is not authorized by statue. Here, though, the "notice" is prescribed by statute. However, the CBA alleges, that the statement is nevertheless incorrect because "Article XIV, Section 1(c) of the Illinois Consitituion provides that one of the ways in which a Constitutional Convention can be held pursuant to an automatic call if it is 'approved by three-fifths of those voting on the question.'" The CBA contends that a failure to vote is "not equivalent to a negative vote for purposes of determining three-fifths of those voting on the question."

Many people will enter the polling booth on November 4 just to vote in the presidential contest. People will stop voting at various points down the ballot; if history is any guide, the dropoff from the top of the ballot (the presidential election) to the bottom of the ballot (the Con Con question) will be very significant.

Just by way of illustration, the judge who will conduct the hearing in the Con Con ballot suit on Wednesday is Judge Nathaniel R. Howse, Jr. He was on the retention ballot in 2004. He easily won retention at the time, getting 77.3% of the votes cast: 886,859 "yes" votes and only 260,655 "no" votes. That's a total of 1,147,514 voters who exercised their right to vote on Judge Howse's retention. But just over two million voters made selections in the presidential race at the other end of that 2004 ballot.

If non-votes in a judicial retention race were counted as "no" votes then Judge Howse would have received no better than a 43.3% "yes" vote -- far short of the 60% required for retention. (I assume in these calculations that the total number of votes cast is equal to the total number of votes cast for president. That's not necessarily so: In any given election, some people will return ballots that are entirely blank. Others may bypass that race but vote in other contests. But these numbers are not large.)

Why would there be a different rule for calculating 60% on the question of calling, or not calling, a constitutional convention? The "notice" language prescribed by §16-6 of the Illinois Election Code would provide the reason... except that does seem at odds with Article XIV, §1(c) of the Illinois Constitution:

(c) The vote on whether to call a Convention shall be on a separate ballot. A Convention shall be called if approved by three-fifths of those voting on the question or a majority of those voting in the election.

One of the things that the Secretary of State and the Board of Elections will presumably attempt to explain, in their papers, is why the notice language of §16-6 is in harmony with the constitutional provision. The defendants' responses are scheduled to be filed and served by Monday afternoon.

Judges seeking retention link up with website

In previous posts I've mentioned that there are very few contested judicial elections in Cook County this year.

But that doesn't mean there won't be a lot of judges on the ballot.

Indeed, in addition to the uncontested races, Cook County voters will find that there are 68 judges seeking retention to either the Circuit Court of Cook County or the First District of the Illinois Appellate Court.

Every six years full circuit judges in Illinois must seek the voters' permission to remain in office. It is a "yes" or "no" proposition. Judges who fail to receive a 60% "yes" vote lose their positions.

Generally -- usually -- most judges who seek retention are in fact retained. But the most widely respected judges, the ones most universally acclaimed for their legal acumen and temperament, the ones who exhibit the deepest scholarship and sharpest intellect -- in a typical year, even these paragons will receive only around an 85% "yes" vote.

Solomon would do no better than about 85%.

What this means is that, in each election cycle, there is a hard core group of people voting "no" on the retention of every single judge. In a high turnout election, with a volatile electorate -- well, it's understandable that the judges get nervous.

Frankly, if the naysayers ever got their way, chaos would result: While the Supreme Court can fill vacancies, the newspapers and civic groups might howl in protest if judges booted off the bench were put back on by the Court. The loss of continuity and institutional knowledge would be considerable. And, truth to tell, the very least of the judges seeking retention has in fact been doing the job for at least six years. Every new judge has to be trained.

So the judges up for retention have, in recent years, banded together and have allowed a committee to be formed on their behalf. The purpose of the Committee -- this year called the Committee for Retention of Judges in Cook County, 2008 -- is to seek a "yes" vote from every voter for every judge. Money is raised for this purpose and ads will be bought and mailings conducted.

Full disclosure: I have contributed to the Committee this year.

And, this time out, the retention judges even have a website on which you will find individual biographies for each of the judges seeking retention.

Cook County judges seeking retention this year are:

Gerald C. Bender
Andrew Berman
Margaret A. Brennan
Eileen M. Brewer
Janet Adams Brosnahan
James R. Brown
Anthony L. Burrell
Diane Gordon Cannon
Evelyn B. Clay
Mary Ellen Coghlan
Sharon Johnson Coleman
Clayton J. Crane
John T. Doody, Jr.
Lynn Marie Egan
Richard J. Elrod
Candace Jean Fabri
Peter A. Felice
Thomas E. Flanagan
James Patrick Flannery
John J. Fleming
Rodolfo "Rudy" Garcia*
James J. Gavin
Robert E. Gordon*
Vanessa A. Hopkins
Rickey Jones
Themis N. Karnezis*
Kathleen G. Kennedy
Kerry M. Kennedy
William G. Lacy
Marjorie C. Laws
Casandra Lewis
Thomas J. Lipscomb
Noreen Valerie Love
Michele Francene Lowrance
Patricia Martin
Mary Anne Mason
Veronica B. Mathein
Carol Pearce McCarthy
Barbara A. McDonald
Sheila McGinnis
Dennis Michael McGuire
Kathleen Marie McGury
Barbara M Meyer
Mary A. Mulhern
Lewis Michael Nixon
William T. O'Brien
Lawrence O'Gara
Sandra Otaka
Sebastian Thomas Patti
Edward N. Pietrucha
Edmund Ponce de Leon
James L. Rhodes
Barbara Ann Riley
James G. Riley
Cheryl "Hillard" Starks
David P. Sterba
Jane Louise Stuart
Laura Marie Sullivan
Donald Joseph Suriano
Shelley Lynn Sutker-Dermer
Michael P. Toomin
Sandra Tristano
Valarie E. Turner
Raul Vega
Kenneth J. Wadas
Shelli D. Williams-Hayes
Gregory Joseph Wojkowski
Frank G. Zelezenski

Judges marked with an asterisk (*) by their name are sitting by appointment on the Illinois Appellate Court. In addition, Justices Michael J. Gallagher and Margaret Stanton McBride are seeking retention on the Illinois Appellate Court.

Prior to the November 4 election the various bar associations will weigh in with their views as to the qualifications of each of the judges seeking retention. The newspapers have traditionally expressed opinions on this as well. The overwhelming majority -- virtually all, if not all -- of the jurists seeking retention will be endorsed by the bar groups and newspapers.

Brennan selected as Associate Judge in DuPage

It's been a good week for the Loyola University Law School Class of 1993. Winston & Strawn partner Ray Mitchell was appointed to the Cook County bench earlier in the week. Now comes word that a classmate, Liam C. Brennan, has been elected an Associate Judge in DuPage County.

Brennan has been with the DuPage County State's Attorneys office. His undergraduate degree was earned in 1989 at Notre Dame.

Maureen Masterson-Pulia website provided

In a my recent post about the few contests for judicial office in Cook County this coming November, I mentioned that I could find no website for 4th Subcircuit Republican candidate Maureen Masterson-Pulia.

I have today received an email from the Masterson-Pulia campaign advising that the candidate does indeed have a website and providing the link to prove it. (Clicking on that link will take you to maureenforjudge.com.) I stand corrected.

Ms. Masterson-Pulia's opponent in November is Democrat Pat Rogers.

Supreme Court appoints Winston & Strawn partner

The Illinois Supreme Court has named Raymond W. Mitchell, a partner at Chicago's Winston & Strawn LLP, to the Cook County bench to fill the vacancy created by the retirement of Judge Marsha D. Hayes.

The appointment, effective October 14, will terminate on December 6, 2010, according to a press release today from the Illinois Supreme Court.

According to the Winston & Strawn website, Mitchell is a litigation partner at the firm who has concentrated "his practice in commercial and appellate matters." He was named one of the "top 40 lawyers under the age 40 by the publishers of the Chicago Lawyer magazine" in 2005. Mitchell was one of the Winston attorneys representing Smith & Wesson in the Chicago handgun litigation; he's also represented the Governor of Illinois in an appeal to the Illinois Supreme Court addressing the constitutional power of the Illinois Attorney General. (Unfortunately, the Winston website gives no additional details on this case.)

Mitchell earned an undergraduate degree in English from Loyola University Chicago in 1991. He graduated from Loyola Law School in 1993. Before joining Winston, in 1998, Mitchell clerked for 6th Circuit Circuit Judge James L. Ryan and, later, for former Illinois Supreme Court Justice James D. Heiple. According to the Illinois Supreme Court's release, Mitchell has also worked for Gardner, Carton & Douglas in Chicago and Shearman & Sterling in New York. Mitchell has also served as an adjunct professor of law at Northwestern School of Law.

Minnesota student beats expulsion... sort of

Following up on last Thursday's post about Tony Richard, the kid from Blaine, Minnesota who works as a stockboy at the local grocery (in which capacity he uses a box cutter) and who was suspended from school and threatened with expulsion under the school's "zero tolerance" weapons policy when said box cutter was observed, in plain sight, in the car he uses to drive to school and work:

Terry Collins reports in today's Minneapolis Star-Tribune that the Anoka-Hennepin school board voted 5-1 not to accept the administration's recommendation that young Mr. Richard be expelled.

Collins writes, "The case illustrates the dilemma school administrators nationwide face in enforcing zero-tolerance weapons policies, many of which were instituted in the aftermath of widely publicized school shootings across the country. If school officials choose not to punish a student who has brought a weapon to school after ruling that there was no ill intent, they may open the door to others to do the same, but with more malevolent intent."

With respect to Mr. Collins, this case illustrates no such thing. The demons that animate a school shooter do not spring into existence because some other kid got away with having a box cutter or a pen knife in his car in the school parking lot. (Young Mr. Richard was never accused of trying to bring the box cutter into the school building.)

A tragedy today in Finland may illustrate this point. According to Jussi Mustikkamaa's report for the AP, printed earlier today on the Chicago Tribune website, the masked gunman who opened fire at the Kauhajoki School of Hospitality, killing 10 and, ultimately, himself, posted as many as four violent videos on YouTube in which he discharged a handgun. In one he said, "Whole life is war and whole life is pain. And you will fight alone in your personal war." In another, the shooter allegedly pointed a gun at a camera and said, "You will die next," squeezing off four rounds to drive the point home.

In contrast, Mr. Richard, the kid from Minnesota, had a disciplinary record that consisted of a few tardies.

When school shooting tragedies do occur, we too often find out (and always too late) that the author of the tragedy left warning signs... possibly even cries for help. School administrators have to learn how to evaluate risks and make distinctions... and hear those cries for help before disaster strikes. Making up rigid "zero tolerance" policies is simply an insufficient response.

And while a local resident was quoted in Collins' article today as calling the Minnesota school board's vote a victory for "common sense," that point is debatable. Rather than admit to a gross overreaction, the school authorities have instead placed Richard on "probation" until November 10. Moreover, writes Collins, in a neat bit of bureaucratic fudging, school officials said that "technically, the punishment will be considered an expulsion for the purposes of record-keeping."

So the Blaine High School administrators don't care what the school board says: As far as they're concerned, even if young Mr. Richard is in the building, he's still expelled. Maybe they won't talk to the kid if they see him in the hall.

Minnesota school district threatens to cut student

Meet Tony Richard, 17, and -- for the moment anyway -- a senior at Blaine High School in Blaine, Minnesota, a town of about 45,000 people not far from Minneapolis-St. Paul.

Richard faces expulsion because he allegedly violated the school's zero tolerance weapons policy.

Oh my, you say. What did this boy do?

Did he bring a loaded pistol into school? A rifle? Did he threaten a teacher? Another student?

Well, no.

According to Abby Simmons' article in the Minneapolis Star-Tribune, Richard left a box cutter in his car -- a box cutter that he uses at his after school job at Cub Foods, a job which sometimes requires that he cut up cardboard boxes.

The box cutter, in plain sight, in a cup holder, was "spotted" by a security officer when Richard pulled into the parking lot.

Astonishingly, this -- just this and nothing more -- is the violation which has already resulted in young Mr. Richard being suspended for 10 days and, according to Simmons' article, school officials recommending "to the Anoka-Hennepin school board that he be expelled."

In a saner world, the high school disciplinarian would have urged Security Guard Barney Fife to calm down, then given Mr. Richard a pass to excuse his being late to class. The disciplinarian might have also suggested to Mr. Richard that he leave his work tools at work. And that would have been the end of the incident.

Zay N. Smith picked up the story for QT this morning, another amusing story in his continuing series, "The Case for Zero Tolerance of Modern School Administrators." In the Sun-Times, it was funny.

But it may not be funny for young Mr. Richard, not if he really does get booted out of high school. And it's not just the local school district that seems to be treating this ridiculous case as if it were a potential tragedy averted by vigilant security work.

Abby Simmons interviewed Charlie Kyte, executive director of the Minnesota Association of School Administrators, for linked Star-Tribune article. She quotes Kyte as saying, "While schools have zero-tolerance policies, you must also allow judgment to come into play." For a brief second, hope flared: Perhaps, I thought, here's where a grownup enters the conversation and shuts this silliness down. But Mr. Kyte continued, "The board's gotta look at this and say, 'Hmmm, did this kid really create a horrible act?' The second thing they have to ask themselves is, by giving a less rigorous punishment, are they also opening the door to kids thinking they can get away with this stuff?"

Create? Horrible act? Giving a "less rigorous punishment" might "[open] the door to kids thinking they can get away with this stuff?" What might some future miscreant hope to get away with? Having an after school job?

Here's my suggestion for a punishment: The Blaine school board should apologize to Mr. Richard.

-----------------------------------------------------------------
Photo obtained from the linked Star-Tribune article. Entirely off-topic thing I learned while looking into this story: Blaine, Minnesota is also the off-season home of White Sox GM Kenny Williams.

Pamela Loza fundraisers announced

A fundraiser will be held for 12th Subcircuit Democratic judicial candidate Pamela Loza on September 25 from 5:00 to 8:00 p.m. at Cheeseburger in Paradise, 1472 Market Street in Des Plaines. Tickets for this event begin at $50.

A second Loza fundraiser will be held in the Loop on October 2 at Sidebar, 220 N. LaSalle Street, also from 5:00 to 8:00 p.m. Tickets for this event begin at $100.

More information about these events may be found at Ms. Loza's campaign website.

Ms. Loza's November opponent is Republican Laura J. Morask.

Few judicial races on Cook County ballot in November

Conservative blogger, columnist and radio host Tom Roeser often imagines the electorate as a giant, sleepy eye. Now that the Democratic and Republican National Informercials have concluded, one might imagine that giant eye fluttering open to consider what other races might be on the ballot in November.

Many voters will be surprised to find that there are no contested judicial races; most of the judicial races ended when the primary votes were counted. There are only contests in four Cook County judicial subcircuits. These are the match-ups:

Shultz vacancy -- 4th Subcircuit

Maureen H. Masterson-Pulia, Republican














Pat Rogers, Democrat






I have not found a campaign website for Ms. Masterson-Pulia. Pat Rogers' campaign website is at www.electpatrogers.com -- but it doesn't look to have been updated since the primary.
-------------------------------------------------------------------

Devlin vacancy -- 12th Subcircuit

Laura J. Morask, Republican














Pamela Elizabeth Loza, Democrat








Ms. Morask's website is electlaura.net. Ms. Loza's website is at www.lozaforjudge.com.
-------------------------------------------------------------------

Ryan vacancy -- 13th Subcircuit

Annie O'Donnell, Republican









Ann Catherine Brady, Democrat






I have been unable to find a campaign website for either Ms. O'Donnell or Ms. Brady.
-------------------------------------------------------------------

Tobin vacancy -- 13th Subcircuit

Margarita Kulys Hoffman, Republican









Carol Barnes, Democrat


Judge Kulys-Hoffman was appointed to her post by the Illinois Supreme Court. This past week she was also elected as an Associate Judge of Cook County by her fellow jurists. Her campaign website has not been updated since the primary. I've been unable to find a website for Ms. Barnes.
-------------------------------------------------------------------

A vacancy -- 15th Subcircuit

Peter Fera, Republican









Anna Helen Demacopoulos, Democrat




I could find no campaign website for Mr. Fera. Ms. Demacopoulos' campaign website is at annaforjudge.com

My ride to work has gotten longer...

...because Zay N. Smith's QT is apparently no longer being published in the print edition of the Chicago Sun-Times. It remains available online (hence the link).

The Sun-Times is thin enough without this latest cut -- which I hope is only temporary.

Still, disappointments can sometimes provide opportunities. In this case, Mr. Smith may now be able to provide links to some of his tidbits. For example, take this item from yesterday's column:

Modern Education + the Criminal Mind =

A kidnapper in Oldsmar, Fla., put his gun down while seated next his hostage in the back of a car so he could send a text message, police said.

If you had an extra minute, wouldn't you like to look at the source material for this one?

-------------------------------------------------------------------
Update 9/18/08

Because of a virus, I've not taken the el to work for a number of days. This morning, though, I was back on the train. The good news was that QT was back in the Sun-Times. The bad news was that, because of some never explained problem at Irving Park, I had about an hour and a quarter to read it.