Ian Brenson joins race for Billik vacancy in 4th Judicial Subcircuit

I've been telling FWIW readers for months now that there is only one contested judicial election on the November ballot.

Turns out, I was wrong.

There are now two.

LaGrange attorney Ian Brenson will be on the November ballot as a Republican (his Democratic opponent is Assistant State's Attorney John J. Mahoney). That's a link to Brenson's campaign website in the preceding sentence. Brenson has been licensed as an attorney in Illinois since 1989.

Brenson was not a candidate in the March primary. Readers may wonder how a person can qualify to run for judge as a Republican or Democrat without going through the primary process. I did.

I reached out to some smart people who weren't inclined to speak for the record -- but who were willing to point me in the direction of the applicable case law and statutes. (I also reached out to Mr. Brenson's campaign, but I haven't heard anything from that quarter before posting.)

My initial confusion arose from my dim recollection that a prior attempt by a political party to appoint a judicial candidate to the November ballot without going through the primary process was rejected by the Illinois Supreme Court. If the Supreme Court has already said it can't be done, how could Mr. Brenson and the Republicans do it now?

The case I sorta, kinda remembered turned out to be Bonaguro v. County Officers Electoral Board, 158 Ill.2d 391, 634 N.E.2d 712 (1994).

Lester Bonaguro was elected in the 1992 primary as the Republican candidate for the "B" vacancy in the northwest suburban 13th Judicial Subcircuit (1992 was the first year for subcircuit elections in Cook County, you may recall). No candidate filed for the Democratic nomination. However, after the primary, the Democratic Party selected Arthur L. Janura as its candidate in November.

Judge Bonaguro (he'd been an Associate Judge since 1981) filed objections to Judge Janura's candidacy (he was also a long-serving Associate Judge), contending that Janura's nomination was unconstitutional under Article VI §12(a) of the 1970 Illinois Constitution. That section of our State Constitution provides:

Supreme, Appellate and Circuit Judges shall be nominated at primary elections or by petition. Judges shall be elected at general or judicial elections as the General Assembly shall provide by law. A person eligible for the office of Judge may cause his name to appear on the ballot as a candidate for Judge at the primary and at the general or judicial elections by submitting petitions. The General Assembly shall prescribe by law the requirements for petitions.

Janura had not been nominated in the primary or by petition; rather, he had been selected as the Democratic Party's candidate pursuant to the provisions of §7-61 of the Election Code, 10 ILCS 5/7-61. The Circuit and Appellate Courts determined that the method of filling vacancies prescribed by §7-61 was not in fatal conflict with Article VI §12(a) of the Constitution. See, Phelan v. County Officers Electoral Board, 240 Ill.App.3d 368 (1992)(agreeing that interpreting section 12(a) to forbid a political party from filling vacancies in nomination would be "a restrictive interpretation" inconsistent with principles of constitutional interpretation).

The Supreme Court's majority opinion, authored by Justice Freeman, did not reach the constitutional question. After first deciding that the case was not mooted by Bonaguro defeating Janura at the polls in 1992, the Supreme Court determined that "the Election Code does not authorize a political party to fill a judicial vacancy in nomination by party resolution" (158 Ill.2d 397). In an opinion joined by then-Chief Justice Bilandic and Justice Nickels, Justice Heiple concurred with the majority's conclusion that §7-61 did not provide a proper means of nominating Janura. However, Justice Heiple would have reached the constitutional question -- and he would have resolved that against Judge Janura as well (158 Ill.2d at 402): "The constitutional provision at issue is clear. Section 12(a) prescribes that judicial candidates must be nominated by primary election or by petition. It does not contain any provision for nomination by political party resolution to fill a judicial vacancy in nomination."

Bonaguro, by itself, would seem to auger poorly for Mr. Brenson's candidacy. However, the pertinent provisions of the Election Code have changed since Bonaguro was decided.

The exact evolution of the relevant statutes is probably not important for our purposes. Suffice it to say that, even while Judge Bonaguro's challenges were pending, the legislature began trying to "fix" the perceived holes in the Election Code. The Phelan court upheld the right of the Democratic Party Chairman to fill the vacancies at issue in the case as a committee of one but noted, "The legislature has recently amended section 7-8(g) of the Election Code in this regard, which provides, in new section 7-8(g-1), that judicial subcircuit committees of each political party in Cook County shall be composed of ward and township committeemen, and further provides a voting formula to be followed. * * * [B]y reorganizing section 7-8(g) in 1992 to create a judicial subcircuit committee for each political party in new section 7-8(g-1)..., which under section 7-61 would be authorized to fill vacancies in nomination in the subcircuits, the legislature appears to have strengthened appellees' contentions in the present case as well as the circuit court's affirmance of the Electoral Board." (240 Ill.App.3d 379, n.6; Id. at 381.)

As matters now stand, §7-7 of the Election Code provides, in pertinent part:

For the purpose of making nominations in certain instances as provided in this Article [10 ILCS 5/7-1 et seq.] and this Act, the following committees are authorized and shall constitute the central or managing committees of each political party, viz: * * * a judicial subcircuit committee in a judicial circuit divided into subcircuits for each judicial subcircuit in that circuit....

Section 7-8 of the Election Code provides, in pertinent part:

§10 ILCS 5/7-8. [Committees; election and appointment]

* * *

Judicial District Committee

(f) The judicial district committee of each political party in each judicial district shall be composed of the chairman of the county central committees of the counties composing the judicial district.

In the organization and proceedings of judicial district committees composed of the chairmen of the county central committees of the counties within such district, each chairman of such county central committee shall have one vote for each ballot voted in his county by the primary electors of his party at the primary election immediately preceding the meeting of the judicial district committee.

* * *

Judicial Subcircuit Committee

(g-1) The judicial subcircuit committee of each political party in each judicial subcircuit in a judicial circuit divided into subcircuits shall be composed of (i) the ward and township committeemen of the townships and wards composing the judicial subcircuit in Cook County and (ii) the precinct committeemen of the precincts composing the judicial subcircuit in any county other than Cook County.

In the organization and proceedings of each judicial subcircuit committee, each township committeeman shall have one vote for each ballot voted in his township or part of a township, as the case may be, in the judicial subcircuit by the primary electors of his party at the primary election immediately preceding the meeting of the judicial subcircuit committee; each precinct committeeman shall have one vote for each ballot voted in his precinct or part of a precinct, as the case may be, in the judicial subcircuit by the primary electors of his party at the primary election immediately preceding the meeting of the judicial subcircuit committee; and each ward committeeman shall have one vote for each ballot voted in his ward or part of a ward, as the case may be, in the judicial subcircuit by the primary electors of his party at the primary election immediately preceding the meeting of the judicial subcircuit committee.

And the big one, §7-61, now provides, in pertinent part:

§10 ILCS 5/7-61. [Special election]

* * *

If the name of no established political party candidate was printed on the consolidated primary ballot for a particular office and if no person was nominated as a write-in candidate for such office, a vacancy in nomination shall be created which may be filled in accordance with the requirements of this Section. If the name of no established political party candidate was printed on the general primary ballot for a particular office and if no person was nominated as a write-in candidate for such office, a vacancy in nomination shall be filled only by a person designated by the appropriate committee of the political party and only if that designated person files nominating petitions with the number of signatures required for an established party candidate for that office within 75 days after the day of the general primary. The circulation period for those petitions begins on the day the appropriate committee designates that person. The person shall file his or her nominating petitions, statements of candidacy, notice of appointment by the appropriate committee, and receipt of filing his or her statement of economic interests together. These documents shall be filed at the same location as provided in Section 7-12. The electoral boards having jurisdiction under Section 10-9 [10 ILCS 5/10-9] to hear and pass upon objections to nominating petitions also shall hear and pass upon objections to nomination petitions filed by candidates under this paragraph.

A candidate for whom a nomination paper has been filed as a partisan candidate at a primary election, and who is defeated for his or her nomination at such primary election, is ineligible to be listed on the ballot at that general or consolidated election as a candidate of another political party.

At least with regard to subcircuit candidates, it seems pretty clear that the legislature has tried to respond to the constitutional objections that were raised (if not decided) in Bonaguro.

Even after being anointed "by the appropriate committee," a candidate must circulate and submit nominating petitions, collecting the same number of valid signatures as if he or she were filing for the primary. The late-filing candidate's nomination papers are expressly made subject to the same objections as those filed by a primary candidate. This would appear to satisfy the "petition" requirements in Article VI, §12(a).

Also, the term "vacancy" has been specifically redefined to include the situation where no candidate filed for the primary.

Because no objections were filed to Mr. Brenson's candidacy, the questions raised in Bonaguro will not be revisited. But I can't help but think that, based on the current language of the statutes, the objections that succeeded in Bonaguro would have failed in this case.

Speaking as a non-specialist, I wonder whether the same result would obtain if the Republicans had tried to put up a countywide candidate. There is no specific counterpart to the judicial subcircuit committee that applies in Cook County. The circuit court committee created by §7-8(g) applies only outside of Cook County. In Cook County, would the judicial district committee be (as it was at the time of Bonaguro) a committee of one, namely, the county party chair? Unlike the judicial subcircuit committee expressly provided for by §7-7 and referred to in §7-8(g-1), there is no judicial committee identified in §7-7. Thus, the "judicial committee" of §7-8(f) is not expressly authorized for "the purpose of making nominations in certain instances as provided in this Article."

Would that make a difference? My suspicion is that it would.