All judges in Illinois are elected -- but not all judges are elected by the people

Applications closed last week for the next class of Cook County associate judges. If history is any guide, it's safe to say that somewhere between 250 and 300 lawyers (including some former judges and perhaps even some currently-sitting judges) applied. The Circuit Court will shortly announce all of the persons who applied this time around (the Circuit Court solicits public comment about those applying) and I'll put the list up here on FWIW when it is released.

I was one of those filing an application last week and, when I turned in the application, I mentioned it on my Facebook page.

I received a number of encouraging comments in response (not all of them from immediate family!), but the comments, nice as they were, exposed a degree of confusion about how associate judges are selected. I thought it might be useful to explain that in a post here.

All judges in Illinois are elected -- but not all judges are elected by the people. (As FWIW readers know, the Supreme Court can fill circuit vacancies by appointment, but the appointed judge must seek election or vacate the seat in favor of the person elected to the spot at the next election.)

"Full" circuit judges (which includes subcircuit judges and, Downstate, resident county judges) are elected to vacancies, when they occur, by the people in a partisan primary process. In Cook County, the winners of the Democratic Primary are usually assured of victory in November. (There are a few exceptions. Cook County's 13th Judicial Subcircuit is heavily Republican. Some subcircuits have elected both Democrats and Republicans -- but, mostly, the winners of the Democratic Primary are also the winners in November. The Republican Party seldom bothers to field candidates for most countywide vacancies in Cook County. In many counties Downstate, the Republicans are dominant and the Democrats don't field candidates.)

But these are not the only judges elected in Illinois.

The other judges -- associate judges -- are elected by the circuit judges in their circuit, all as spelled out in Illinois Supreme Court Rule 39.

The process is fairly automatic and all provided for in the rule. Rule 39(b)(1) provides, in pertinent part, "Upon approval of the Director of the Administrative Office of the Illinois Courts, the chief judge of the circuit shall, after forwarding a copy of the notice to the Director, cause notice to be given to the bar of the circuit, in the same manner as notice of matters of general interest to the bar is customarily given in the circuit, that the vacancy exists and will be filled by the judges of the circuit. The notice of vacancy shall be given as soon as practicable, but no later than 30 days after the accumulation of five consecutive vacancies for which notice has not been given."

In Cook County, "notice is given to the bar of the circuit" via publication of an announcement in the Chicago Daily Law Bulletin. Rule 39(b)(3) provides, again in pertinent part, "In judicial circuits having a population of more than 500,000, the chief judge of each circuit and at least two but not more than 10 additional circuit judges selected by their fellow circuit judges shall serve as a nominating committee for candidates for appointment to the office of associate judge of their circuit." The committee's task, per Rule 39(b)(3), is to winnow the field of applicants to a finalists' list containing "twice as many names of qualified candidates as there are vacancies to be filled."

We could -- theoretically -- fill each Cook County associate vacancy as soon as one occurs. That's how they do things in DuPage County, for example, where Anne T. Hayes, a DuPage County Assistant State's Attorney, was recently selected to become an associate judge. But we have more judges in Cook County than in other Illinois counties -- a lot more. Back in 2011, the Tribune reported that we have 418 judges in Cook County -- 275 elected circuit and subcircuit judges and 143 associate judges. A Cook County nominating committee trying to fill each associate judge vacancy as it occurred would be in almost constant session. Therefore, here in Cook County, we don't start the process until the five vacancy mark is reached -- the maximum amount that can be reached before a selection process must be started.

Now that it has begun the process, the Circuit Court of Cook County will move just as fast as personnel and budgetary requirements dictate, and no faster. It would take time to go through the roughly 300 applications in any event, and to have these candidates screened by the various bar groups that rate judicial candidates, and the nominating committee will eventually take the time to hear from each and every applicant. So the eventual number of associate judges selected from this current class of applicants will surely exceed five. In early 2002, 31 associate judges were named, the 62 finalists having been culled from a group of applications that closed in the Summer of 2000. Last time out, in April 2014, 13 new associate judges were named -- from applications submitted early in 2013. In 2012, nine new associate judges were named -- from a pool of applicants that closed on November 1, 2010.

Other than the manner of their selection, there is not much difference between circuit judges and associate judges. There is a small salary difference (full circuit judges make a little more). Pursuant to Article VI, Sec. 8 of the 1970 Illinois Constitution and Supreme Court Rule 295, an associate judge can hear any kind of case except felony cases where the defendant may be subject to imprisonment for more than one year -- but, even here, there is a loophole allowing the chief judge of a circuit to petition the Supreme Court to allow particular associate judges to hear felony cases. Early in my career, associate judges were pretty much barred from serving in the Law or Chancery Divisions. These were generally considered more 'prestigious' assignments and only popularly-elected judges were permitted to serve in Law or Chancery courtrooms -- but that distinction, too, has eroded, and many associate judges now have assignments in both divisions.