Judging WGN's final installment of Judging the Judges

On Thursday night’s final installment of WGN’s Judging the Judges series, Mark Suppelsa charged that the Illinois Supreme Court is itself violating the law regarding judicial appointments.

As a non-specialist in matters legislative and judicial, I tend to rely on a booklet written by David Miller entitled 1970 Illinois Constitution - Annotated for Legislators (4th Ed. 2005), for guidance and direction in understanding the judicial article and the authorities interpreting same.

Section 12 of Article 6 was the constitutional provision that I thought implicated by Mr. Suppelsa’s report last Thursday evening. The pertinent language of §12(c) provides:

A vacancy occurring in the office of Supreme, Appellate or Circuit Judge shall be filled as the General Assembly may provide by law. In the absence of a law, vacancies may be filled by appointment by the Supreme Court.

Miller writes (emphasis mine), "Subsection 12(c) provides that vacancies occurring during the terms of judges are to be filled as provided by law (at present there is none); or if not, by appointment by the Illinois Supreme Court."

Suppelsa did not cite any specific law that he thought the Supreme Court was violating, but the Medill Watchdog summary of Thursday’s report cites to §2(d) of the Judicial Vacancies Act, 705 ILCS 40/2(d).

First added to §2 of the Judicial Vacancies Act by P.A. 90-342 in 1997, §2(d) initially provided, in relevant part, “A person appointed to fill a vacancy in the office of circuit judge shall be, at the time of appointment, a resident of the subcircuit from which the person whose vacancy is being filled was elected if the vacancy occurred in Cook County.”

Later, in 2003, when the Legislature carved other judicial circuits into subcircuits, P.A. 93-541 substituted “a circuit divided into subcircuits” for Cook County.

Granted, §2(d) is not a law providing a separate method for filling vacancies other than Supreme Court appointment. This may explain Miller's commentary. But §2(d) surely purports to impose a limitation on the Court regarding the filling of judicial vacancies. So why would the Supreme Court not see §2(d) as imposing a limitation (by residence) on the filling of subcircuit vacancies by appointment?

It has occurred to me that the Court might see §2(d) as an impermissible restriction on the Supreme Court’s appointment power. I know the Court has zealously guarded its prerogatives in the past. See, for example, People v. Jackson, 69 Ill.2d 252, 256, 371 N.E.2d 602 (1977): "Although the Constitution of 1970 does not define judicial power, it is an exclusive grant of all such power to the courts. [Citations.] If the power is judicial in character, the legislature is expressly prohibited from exercising it" (invalidating a provision of Code of Criminal Procedure that conflicted with a Supreme Court Rule). Arguably, if the Court has the power to fill judicial vacancies under the Constitution, the Legislature is not privileged to impose conditions or restrictions on that power.

I don't pretend or presume to know if this is the thinking of the Supreme Court, but as with the law requiring subcircuit judges to live forever in the subcircuits from which they were elected, the mere fact that the Legislature passes a law does not necessarily mean that the law passes constitutional muster.