Monday, November 17, 2014

Lesbian and Gay Bar Association President pens open letter to Gov.-elect Rauner about Mr. Rauner's retention ballot choices

Ed. note -- The following letter is reprinted without comment; one apparent typo was corrected with the author's permission. The author of the letter, LAGBAC President John Litchfield, is an attorney at Foley & Lardner LLP.

Photo of Mr. Rauner voting on Election Day,
taken from the Glenview News website.
Dear Mr. Rauner,

A photo of you published on November 5, 2014 with your completed ballot indicates that you voted "No" on every judicial candidate for retention to the Cook County bench, according to Republican Judge James G. Riley's letter to the Chicago Daily Law Bulletin (published on November 10, 2014, and enclosed here for your reference). I, too, saw the photograph referenced by Judge Riley, and am disappointed to see that it confrrms his account.

This means you voted not to retain even the stars of the bench, the leaders and stand-outs, the innovators and those working to bring peace and resolution to families in our communities. Judges, perhaps more so than any of the elected officials in our state, have a direct and lasting impact on the lives of Illinoisans on a daily basis - whether it be petitioners in bankruptcy, divorce court, or child custody, or defendants in criminal cases or eviction proceedings. The issues our judiciary grapples with are deeply personal to the citizens of our state who deserve only the best on the bench.

Judge Riley's letter is correct: the 2014 class of retention candidates enjoyed better bar ratings than most previous classes; no 2014 candidate received less than 50% "Yes" recommendations from rating bar associations; and only eight of 73 had any "No" recommendations at all. Prior classes of retention candidates have usually featured at least one or two with 100% negative bar ratings.

One reason that I am conversant with these statistics is that I have been privy to the judicial evaluations process for more than four years as President of the Lesbian and Gay Bar Association of Chicago, and over nine years as a member. Our members, and the members of many other bar associations, spend hundreds of hours a year evaluating judicial candidates by reviewing detailed candidate questionnaires, seeking feedback from practitioners familiar with the candidates' practices, and conducting live interviews all in an effort to educate the electorate on the otherwise confusing process of electing judges.

Every retention cycle, roughly 20% of the Cook County electorate vote "No" on every judicial candidate up for retention. While an unfortunate reality in our electoral process, our elected leaders should not encourage this action by their own example. It is simply irresponsible to do so.

There are a number of viable alternatives you could have explored. Let me address a few.

First, you could have taken an opportunity to speak out on long ballots that are confusing to voters, and maybe ever lent support to efforts to make voter information more widely available.

Second, with a little information, you could have addressed the possibility of raising the bar for retention from 60% to 65% or even 70% to improve the chances of removing poor performers from the bench - or at least creating the threat of job loss to inspire effort at better performance.

Third, you could have waded into the debate about whether judges should be elected at all, perhaps joining with politicians in other states in efforts to roll back existing voting opportunities, or better yet, working with legislators in Springfield to establish improvements to Illinois' system of electing judges.

Or, fourth, you could have just not cast votes in those races and pled ignorance.

But instead of these and other responsible alternatives, your vote risked chaos and the wholesale loss of a set of professionals who, for the most part, perform extraordinary service for the people of Cook County. Your decision to vote "no" on each and every judicial candidate demonstrates contempt for the judiciary, the volunteer attorney evaluators, and the electorate itself. I invite you to engage the Illinois bar to explain your vote. Perhaps you have thoughts about how the bar can work with the state to improve our judicial election process, and we would welcome your leadership on this issue. The system is far from perfect - but an irresponsible vote by the now-leader of Illinois only serves to exacerbate any problems, and sets a bad example of how to fix them.

Thank you for your time and attention. I am available and willing to discuss any of this if you are so inclined.

Sincerely yours,

John L. Litchfield, Esq.
President, the Lesbian and Gay Bar Association of Chicago


Anonymous said...

Outstanding letter. Thank you for writing it and tank you for publicizing it.

Michael said...

No retention judge has ever lost, so I wouldn't get too worked up about it. I consider it a civic duty to thoughtlessly cancel out the vote of another thoughtless voter who voted for them all.

Anonymous said...

Whether Rauner intended to vote for all judges out of office or not, as President of any bar of lawyers, you should be working to improve the bar within your organization and the ABA across the state. Politicians come and go, but if voters choose to remove all judges or retain, it takes 4 years of law school and assuming plenty of continued education to maintain a level of non-bias, educated to the law decision making to make a good judge. It all starts with the schools and again, I state, non-bias for all of Illinois. Thanks for the letter but I wouldnlike to hear what improvments has the Illinois bar done to teach better law - interpretations and judgeship. Is there a metic or is law school an extension of Illinois political cronyism?

Anonymous said...

10 Ill. Comp. Stat 5/29-9 states that “any person who knowingly marks his ballot or casts his vote on a voting machine or voting device so that it can be observed by another person, and any person who knowingly observes another person lawfully marking a ballot or lawfully casting his vote on a voting machine or voting device, shall be guilty of a Class 4 felony.”

Anonymous said...

It's called voting. He was not the Governor at the time. He has the right to vote exactly how he wants without the president of a special interest group publicly calling him out. That's the answer I would give you.

Anonymous said...

This posting was noted on the Capitol Fax blog which resulted in about 140 comments. As to Anonymous at 11-18 at 9:42 pm. while he does have a right to vote exactly as he wants, the fact that Rauner voted no for every judge seems to show the same contempt he has for the judicial branch as he has for legislative branch. It's all about him.

Anonymous said...

It could be that Mr. Rained has the right to cast his ballot any way he likes. It is one of our Constitutional rights is it not? Many years ago LAGBAC only gave positive bar ratings to judicial candidates whom they felt were sympathetic to gay rights and ignored all other aspects of their qualifications. This is how your organization cast its ballot. Breakout your old Constitutional Law book from Law School and learn something before you pen another ridiculous self righteous letter.

Anonymous said...

Rauner is sly as a fox. Now that he has publicly indicated that he voted "no" on ever retention judge, has Rauner created a conflict forcing these vary (democratic) judges to recuse themselves when he has a matter before them. Maybe Bruce is looking for a way to force suits against him to "friendlier" counties.

Also, I'm a bit perplexed why a 501(c)(3) tax exempt organization like LAGBAC would interject itself in this matter. Rauner, a republican, voted not to retain a slate of almost all democratic judges. Isn't that his right? If a liberal lived in a conservative county with all conservative judges, wouldn't he or she have the same right to vote "no" on retention? Tax-exempt LAGBAC only seems worried that Republican Bruce Rauner voted against retaining a bunch of Democratic judges. I wonder if LAGBAC would be equally outraged if Shelia Simon voted not to retain all the republican judges on her ballot in Southern Illinois? I suspect that would be acceptable.

Anonymous said...

Changing judges at each election would be a good thing. There is not a shortage of people who can apply the law wisely and competently. Look at the 2014 Blackhawks. None of them will be on the team in 2024. Change is good. PAZ

Jack Leyhane said...

Anon 12/18/14 wrote, "Rauner, a republican, voted not to retain a slate of almost all democratic judges. Isn't that his right?"

Judges run for retention on a non-partisan basis -- they do not run as Republicans or Democrats. Traditionally, the Democratic Party has expressed support for the entire retention slate -- even for those judges (and there are some) elected as Republicans.

Judges seeking retention are limited by the Canons of Judicial Ethics, and specifically by Supreme Court Rule 67, in what they can and can't do -- and, basically, except at retention time, judges can't be politically active. You'll hear judges grouse, from time to time, about how they've 'lost' their First Amendment rights while in judicial service. That is not to say that judges don't have political opinions. However, a judge who becomes an overt political political partisan -- publicly expressing those opinions except within the narrow bounds provided by Rule 67 -- will run the risk of disciplinary action, and possible removal from the bench.

While I'm sure we could both think of exceptions, Anon, judicial candidates are the least partisan candidates on any given ballot. We can also both think of a number of good judges who ran first as Republicans (losing) subsequently winning election as Democrats. That's not hypocrisy either -- that's a recognition of reality -- and a firm grasp of reality is a useful quality in a judge.

Now, as for Mr. Rauner choosing to vote against the entire retention slate... of course that is his right. I personally don't think it was a very smart thing to do, and I think it was a particularly bad idea for him to reveal his contempt for the judiciary to the world at large. And I truly hope he didn't do it because he thought he was voting against "Democrats."