Sunday, March 18, 2012

ICJL joins call for judicial election reform

On Tuesday, voters requesting a Republican primary ballot in Cook County will discover that they have largely forfeited their right to vote for judges. (Republicans are certain to be elected only from the far northwest suburban 13th Subcircuit, and only one of the two subcircuit races on the ballot there are contested.) No Republican bothered to even file for any of the 11 countywide vacancies on the Circuit Court or the six vacancies on the Appellate Court; in all but three subcircuit races (two in the 4th and one in the 12th) and in the race for the Supreme Court, the winners of Tuesday's Democratic Primary elections are virtually assured of taking office in December.

In Friday's ICJL Newsletter, Illinois Civil Justice League President Ed Murnane acknowledged, "As a Cook County resident voting in a Republican Primary, I must say it's startling to look at the Cook County ballot and see all these 'No Candidate' listings next to all the judicial contests." On the other hand, Murnane wrote, "it's no better to see blanks on the Democrat primary ballot in other jurisdictions. It's just more impressive -- and depressing -- in Cook County where we elect half the judges in Illinois."

Murnane and the ICJL want reform of the election process.

In Cook County, most discussions of "reform" of the judicial election process involve elimination of elections altogether. The untrustworthy decisions of an ignorant electorate should be replaced by a system of "merit selection." The Sun-Times editorialized in favor of merit selection just this week (my response, and a link to the newspaper's editorial, may be found here).

I attended (and wrote about) a joint seminar put on by the CBA, ISBA, WBAI and CCBA in October 2010 concerning reform of the judicial election process. I went in fearing that it might degenerate into a pep rally for merit selection, and there were some ardent proponents of merit selection among the speakers, but there was also some thoughtful discussion of other possible reforms, including the possibility of public financing for judicial campaigns or requirements that an attorney be licensed for a period of years before becoming eligible to run for judge. (While most judges have had considerable experience before donning a robe, there have been a few who became judges only two or three years after graduating from law school.)

Indeed, at the 2010 seminar, retired Appellate Court Justice Gino DiVito (himself a vocal proponent of merit selection) revealed that he'd prepared an article for a forthcoming issue of the Illinois Bar Journal making a proposal for a nonpartisan judicial primary. That article appeared the December 2010 issue (Judicial Selection in Illinois: A Third Way, 98 Ill. Bar J. 624, membership required). (I wrote about Justice DiVito's article in January 2011.)

The ICJL's reform proposal this week also envisions a nonpartisan primary and several restrictions on which lawyers may qualify for the new ballot. From the ICJL Newsletter (numbering eliminated):
  • A mandatory standard for service as an attorney must be a qualification. Five years? Ten years? That can be decided.

  • Candidates for the judiciary should be screened by a bi-partisan review commission before they have their names included on the ballot.

  • The bi-partisan commission should include eight members in each of the legal jurisdictions in Illinois. That would include five Supreme/Appellate Court districts and the 22 Circuit Court districts. Cook County, because of its size, could be treated in a similar fashion but perhaps with multiple commissions.

  • The eight members would include two each appointed by the four legislative leaders (Senate President, House Speaker, Senate Minority Leader, House Minority Leader). One of the two members appointed to the commission by each legislative leader must be an attorney, the other would not. That would assure an eight-member commission with four attorneys and four non attorneys; and four Republicans and four Democrats.

  • In order to be recommended by the commission, a prospective candidate must win approval of six of the eight members. That means Republicans and Democrats, lawyers and non-lawyers, would approve the candidate. Candidates for commission support would be interviewed by the commission, in addition to meeting other requirements to be determined by the commission.

  • As many as four candidates for each position could be approved by the commission. Those four would run in a non-partisan primary election and the two highest vote getters would run in the general election.

  • Candidates who were selected by the commission would be designated as such on a non-partisan judicial ballot, in much the same way as local referenda appear on primary and general election ballots. Candidates not selected by the commission could run but without the designation of "commission backed."
Murnane told FWIW in an email that he saw the commission as a way of making the proposal more politically viable. "Hopefully," Murnane wrote, "it will make it balanced too. If they were to cut deals, it destroys the balance."

But there are a number of questions that arise from empowering legislative leaders, or their designates, to decide who is -- or who is not -- "backed" for the judicial ballot.

Would these positions be paid? If paid, might they then be pension eligible?

And paid or not, how does one avoid the appearance of unfairness when Commission Member Smith subsequently appears in front of a judge that he or she has stamped with his or her seal of approval? Should we expect -- or require -- a judge to recuse him- or herself from any case brought by a commission member for a period of time -- 3 years perhaps? (I'm wondering if Supreme Court Rule 63C could or would have to be modified to address these commissions, Rules 63C(1)(a) or (c) in particular.) Murnane acknowledged that recusal rules would have to be adopted, although he sees the particulars of this as a matter for the General Assembly to address. The ICJL proposal suggests that the General Assembly should determine how long any commission member might serve.

The ICJL proposal also includes a significant public financing component:
  • Limits would be placed on expenditures by candidates in judicial elections. Public funding would be provided to candidates approved by the commissions and they could spend no more. Candidates who were not approved by the commission, but chose to run, would be limited to receive and spend no more than commission-backed candidates.
In his email to FWIW, Murnane suggested that, ideally, no candidate who chose not to appear before the commission would be allowed on the ballot. In a way, this position does not different fundamentally from that taken by the Chicago Council of Lawyers regarding bar association screening ("Because we believe a willingness to participate in bar association and other public evaluations is a key indicator of fitness for public office, no candidate who refuses to be screened can be found 'qualified.'")

Under the ICJL proposal, judges elected pursuant to this new system would face retention elections, just as judges do now.

Perhaps the real significance of the ICJL's proposal is that it is further evidence of a growing consensus, along the entire political spectrum, that significant reform of the judicial election process is necessary.

What do you think of the ICJL proposal? What reforms would you propose?


Albert said...

I never cease to be amazed that people push for nonpartisan elections without having done any sort of proper comparative research or analysis. Nonpartisan elections have their own strengths and weaknesses just like partisan elections do, and replacing one with the other simply means replacing one set of strengths and weaknesses with another. Nonpartisan elections are not the panacea that some people portray them to be.

Ultimately somebody needs to produce convincing evidence that one type of system produces a better judiciary than another. Which is the whole point, isn’t it? That research has yet to be performed.

Jack Leyhane said...

Albert -- if your objection is that nonpartisan judicial elections would not necessarily provide better judges, I'd be inclined to agree. We went with nonpartisan elections for Chicago aldermen a while back, and aldermen have gotten into trouble since, just like they got into trouble before. I don't know how we'd prove whether partisan vs. non-partisan elections provided better judges unless we could (somehow) run elections both ways.

On the other hand, judicial elections in Cook County (and many downstate counties, too, apparently) are effectively over tomorrow. No one bothers to file for vacancies in the party relegated to the permanent minority status in Cook or any other county because it amounts to a futile gesture. Nobody likes making futile gestures. Voters who fail to vote in the majority party primary, therefore, are effectively disenfranchised. I don't suggest that this amounts to a constitutional violation or a Voting Rights Act issue -- someone who specializes in these rarified areas would have to address that -- but it does set my fairness meter buzzing, just a bit.

In previous comments on this, you've invoked one of the fundamental principles of the Universe, namely, the Law of Unintended Consequences. Pat Quinn thought he was saving money with the legislative cutback amendment many years ago, back when he was just a gadfly, but now....

But serious consideration is still the best defense against the worst unintended consequences. The Devil truly is in the details, sometimes, anyway.

With the understanding that we can not guarantee better judges by a nonpartisan primary, what other objections, problems, concerns, etc. are seen here?

Anonymous said...

Whether it be an elective system (partisan or non-partisan) or appointive system or some blending of the two, thankfully Mr. Leyhane, your chances of ever becoming a judge in Chicago are slim to none.

Albert said...

I have a long, angry rant about this that I'll try to detoxify and write down...if I don't write it for some publication then I'll send it to you. Basically a thought-experiment about what empirically will happen if you actually hold nonpartisan elections, compared to what some of the idealists believe will happen.

P.S. Hey, sounds like you've got a fan out there!