Monday, October 10, 2016

Guest Post: Up with Down-Ballot

I present a guest post this morning from Susana Darwin, Co-Chair of the Judicial Evaluation Committee of the Lesbian and Gay Bar Association of Chicago and an Executive Committee Member of the Alliance of Bar Associations for Judicial Screening.

If you are excited about the top-of-the-ballot races in the November election, please don’t forget to cast informed votes in down-ballot races, like those for the judiciary.


If you can’t bring yourself to vote one way or another in the top-of-the-ballot races, you can take comfort in the difference your vote can make in down-ballot races.

In either case, please see for recommendations for Cook County judicial races from the Alliance of Bar Associations for Judicial Screening.

A candidate for retention must win 60%+1 votes to remain in office, so the question for 2016 is: how does a voter cast a principled vote on judicial candidates?

In 2016, no sitting Cook County judge or appellate court justice earned universal or even majority “NO” retention recommendations from the eleven groups that comprise the Alliance.

In fact, five bar groups – the Asian American Bar Association of the Greater Chicago Area, the Decalogue Society of Lawyers, the Hispanic Lawyers Association of Illinois, the Puerto Rican Bar Association of Illinois, and the Women’s Bar Association of Illinois – recommend YES votes for ALL retention candidates.

Given the ratings of those five bar groups, a voter could credibly vote YES on all retention candidates.

By contrast, research shows that over the years, 20% of voters cast NO votes on ALL candidates. Every judicial candidate before voters in November has been on the bench for at least six years, some for many more years than that. Many have earned the respect of their colleagues and the lawyers and litigants who appear before them, and the experience they have developed while serving the public should not be lightly discounted.

Alternatives to voting ALL YES or ALL NO include:
—voting in alignment with the particular bar group or groups you know and trust
—voting NO on any candidate who has more than one NO rating from any bar group (Lynch)
—voting NO on any candidate who has any NO rating from any bar group (Solganick, Maki, Ford, Lynch, Dunford, Bernstein, Malone, Coleman, Ramos)

In the last two scenarios, whether to cast YES votes for other candidates depends on the voter’s wish to affect the total number of votes a candidate gets, and therefore, how close to the required 60%+1 to remain in office. Not casting a YES vote for a particular candidate shrinks the total number of votes that candidate tallies and empowers all-NO voters’ votes.

Cast an informed vote!


Anonymous said...

Ah, the Alliance weighs in. Great. But the reality is that most voters won't even see these grids or, if they do, won't remember them and won't be bothered to bring them to vote. They will vote based on gender, ethnicity or how "cool" somebody's name sounds (that one is for you Jesse "Outlaw" and by the way, cool ballot name). For all you would-be warriors out there considering a run in 2018, keep the following in mind. The countywide signature requirement will be 3-4 times higher given the record turnout in 2016 due to the Clinton/Sanders contest. Some estimate it to be in the 6,500 to 7,000 range. In contrast, the signature requirement for 2016 was the lowest in recent history because of the pathetic 16% countywide turnout of 2014 attributable to the lame Governor's race. While many of the countywide candidates in 2016 submitted around 10,000 signatures, most of the non-slated candidates would have likely been tossed off the ballot if the anticipated 2018 requirement had been applied because most (if not all) did not have 6,500 GOOD signatures. Those professional circulators might net you 2,000-3,000 good signatures out of 10,000, but NOT 6,500. And even if the professionals start circulating all day from August to November, 20,000 legitimate GOOD signatures are hard to get and will cost you $20,000-$30,000 because they know they can charge a premium. And even then, there is no guarantee that you will hit the magic mark.

That fact is the only reason why the Democratic Party will have any chance of getting candidates willing to fork over $45,000-$50,000 for slating next year. If you are not slated, then you will have an incredibly difficult time getting enough signatures to stay on the ballot. So, like 2010 (which had a similar issue), the real action will be in the subcircuits, where everyone only needs to have 1,000 signatures. With less geography to cover, hey, everyone might get to know your name giving you a fighting chance to win. Good luck to all of you in 2, 3, 4, 6, 8, 10, 11, 13 and 15. Each of those subcircuits, and probably more, will have at least one if not multiple vacancies and the fireworks should be entertaining for all.

Regardless of which route you take, good luck to all of you in 2018. It's about time we had more contested races everywhere.

Back Bencher

Anonymous said...

Whatever happened to the countywide McGinnis vacancy and the Delehanty vacancy in 3?

Anonymous said...

Hello Jack, with all due respect, how come you did not post my comment regarding Susana Darwin's lack of credentials in that she is not authorized to practice law? While my comments were critical and maybe even harsh, they were also honest, respectful, and were meant to be thought provoking. That is the spirit in which they were written and submitted to you. I have no personal axe to grind with Ms. Darwin or LAGBAC; however I honestly believe that bar association JEC's need to be scrutinized carefully. I apologize if you found my comments offensive or believe they would have offended the sensibilities of your readers.

Anonymous said...

According to ARDC website: Susana C Darwin: Admitted November 10, 1994, "Voluntarily inactive and not authorized to practice law". The intro to this post says: "Co-Chair of the Judicial Evaluation Committee of the Lesbian and Gay Bar Association of Chicago and an Executive Committee Member of the Alliance of Bar Associations for Judicial Screening". If this is correct it begs the question how an inactive unlicensed lawyer has the ability to competently determine if a practicing lawyer has the necessary credentials to be rated recommended or qualified for judge. SHM

Jack Leyhane said...

@Anon 10/10 11:57 p.m. & Anon 10/11 9:17 p.m. -- The crux of your objection to Ms. Darwin's continued service on the LAGBAC JEC and with the Alliance is that she is a 'voluntarily inactive' attorney.

What does that mean? That means that she apparently has a job which does not involve the practice of law or that she has no job at all and is not actively seeking employment in a position that requires an active law license. Either way, does that mean that she forfeits the right to serve on a JEC?

It would, I suppose, if service on a JEC is a form of practicing law. I don't think it is. Do you disagree? Why?

I don't think evaluating persons for judicial office is a form of practicing law for these reasons: The last time I checked, lawyers and non-lawyers alike can vote in judicial elections. The Supreme Court makes a practice of having one non-lawyer member on ARDC tribunals -- evaluating whether a lawyer should be allowed to continue practicing law, much less ascend to the bench.

And Ms. Darwin is not a non-lawyer; she is merely inactive at the present time. She doesn't have to take MCLE. It also means she isn't running for judge herself anytime soon.

Even if you agree, or concede, that service on a JEC is not a form of practicing law, what you're getting at, I think, is that there should be some standard -- some minimum qualifications -- in order to serve on any JEC. Who would enforce this? ARDC?

And what would those qualifications be?

I know what I'd like -- I'd like all JEC members screened on this basis: Anyone who doesn't think I'm super-duper-highly-qualified for any and every judicial office is out; everyone else is in.

And then I wake up.

Can a lawyer who has a residential real estate practice---house closings---serve on a JEC? A lawyer who handles marriage dissolution cases only would not necessarily have a clue on what makes a good prosecutor or public defender. Why should a divorce lawyer serve on a JEC panel evaluating ASA's or public defenders seeking judgeships? On the other hand, a criminal law practitioner does not necessarily have a clue about the law of torts or insurance or about how civil courts work... you see where I'm going, right? What about a retired---as opposed to voluntarily inactive---lawyer? Can a septuagenarian or octogenarian serve on your JEC, Anon, even if he or she has taken down their shingle?

I think this could be a discussion worth having.

What do you think?

Anonymous said...

It's my understanding that Darwin's current job does not require her have a license to do the job that she gets paid to do. In addition, there are many people that previously practiced law but are retired and do not pay the required license fee nor do they need to if they do not intend to represent anyone or handle legal matters. So not "authorized to practice" law seems to me to mean many things (as long as the person isn't suspended or disbarred)--- such as not "authorized to practice" because one is retired and has no desire or plans to actually represent clients in any legal matter. "Not authorized" to practice does not automatically mean they cannot be impartial or incapable of determining who does or does not have the qualifications to be on the bench. Nor does it mean a retired or other non active person is any less of a lawyer than they were just before they retired or became non active. There are some political hacks that are "authorized to practice" but never set foot in a courtroom. Yet, they want to be judges. And because of their affiliations with certain political people they get accolades. These are the people that call themselves General Counsel for government agencies. There are firm lawyers who are "authorized to practice" and never been before a judge but instead 'negotiate' big money deals for that big law firm. Yet they want to be judges. They too get accolades with the help of the firm name. These type of people who are "authorized to practice" but do not step a foot into courtrooms, justify their positions as 'participation in trial strategy'. After watching Darwin, I can say this much about her; she can wrap a lot of the election/judicial matters around her little finger and throw it all back up in your face. Some do not always agree with her position on certain matters such as that bogus 'merit selection' junk but she's invested and passionate about the judicial election and in keeping the process above board. This is more than I can say about some lawyers "authorized to practice" but do nothing but talk and complain about the people that do participate in the Alliance. Plus not too many of you are going to speak too loudly if for no other reason than you want those LABAC votes. LAGBAC is one bar association that does not forget.

Anonymous said...

This is an excellent conversation to have. I believe that general litigation experience should absolutely be a prerequisite to sit on a bar association JEC. No less than ten years worth. This requirement would create a problem for most if not all bar associations as it would be difficult if not impossible for them to find qualified members willing to volunteer time to serve. No problem for non-active, or retired lawyers or judges to serve as long as they have the litigation background.

I know nothing about Ms. Darwin or her litigation background so I can not comment. I do, however, receive emails from time to time from the various bar associations I belong to seeking volunteers to apply to their respective JEC's. Incredibly, the only requirement for JEC service for some bar associations is a minimum of two years of being licensed. That is all; and it should be unacceptable. Doctors, by contrast, are "Board Certified" in specialty areas of medicine by committees that have strict and stringent service requirements.

The bar association JEC I was once a member of was preoccupied with "scope of practice" and "complex litigation experience". As hard as I tried, I was unable to get the point across to colleagues that the majority of litigation does not involve class-action matters or mass-murders. Most lawyers also concentrate their practice. I attribute JEC's focus on criteria that does not impact a candidates ability to serve as an outstanding judge on the painful lack of actual litigation experience of JEC members themselves.

I can comment about one more matter. LAGBAC has a strange history with respect to their JEC. At one time, in the not so distance past, they only found judicial candidates qualified or recommended if they were outwardly pro-LGBT. Only that single issue mattered. Not a very enlightened or fair approach. Ms. Darwin was involved with LAGBAC's JEC during that time period.

Anonymous said...

Ten years litigation experience to sit on a bar association JEC is not necessary and not practical. That idea would invite exclusion and that is not the purpose of the Alliance. Inclusion rules. Diversity rules. It's the collective diversity of the bars that's so unique and necessary. Too many people who come to the JEC for interviews for judge consideration sometimes don't have 10 years of litigation but 10 or more years of licensing. Simply stated, not all lawyers litigate all the time. Most cases do not go to trial. Anon 2:12 is on point in stating that some members did get preoccupied with scope of litigation, including depth and breadth and on and on about nothing. I do not think that the preoccupation was due to any lack of actual litigation experience by the JEC members but the just experience of the individual members backgrounds. For instance, some of the PD's or ex-judges and small firm members would make your head spin on what is and what isn't and how much and what kind of litigation is really considered litigation. I do think that the members have gotten better about 'scope' and 'complex' litigation expectations. This is where it is helpful that the individual bars talk to each other and understand the varying views. There was (and it still happens occasionally) that some members of certain bars would get turned off by solo practitioners or practice limited lawyers such as those in domestic, probate and even GAL's. That's unfair and one bar in particular is famous for that catch all eliminator phrase--'depth' and 'breadth'.

Anonymous said...

It takes 7 or 8 years of higher-level education and usually an additional bar study class prior to sitting for the bar exam to become licensed as an attorney. A ten year practical litigation experience requirement to sit on a bar association JEC is not an overly burdensome requirement. When compared to the importance of the judiciary, it really is not a high standard at all. Without practical litigation experience, it is impossible to have an informed opinion on what makes a good judge as lots of intangibles exist. "Depth and breadth" and "complex litigation experience" sound good on paper; but in actuality, are meaningless in most cases. I agree that inclusion and diversity are important. But I do not agree that diversity and inclusion and ten years (hopefully more) of litigation experience are mutually exclusive. There is a lot of experience and talent out there. Bar Association judicial ratings can, and do, have a devastating impact on an individual's career; in addition to being relied upon by the public. JEC's should not be comprised of members who have nothing more than good intentions or a spirit of volunteerism.

Anonymous said...

A ten year litigation experience requirement to serve on a JEC is a good start. Bar association ratings are also highly political. The public has no idea what goes on behind closed doors. Very unfair ratings in many cases. It takes close to a miracle for a candidate to receive a qualified or recommended rating from every single bar association. Jack, would you by chance have a list or know the percentage of the 2016 candidates that are qualified by all the associations? Are the countywide candidates generally rated higher than subcircuit candidates?

Anonymous said...

The members of the bar association JECs conduct investigations of the candidates. Those investigations involve interviewing references, both those supplied by the candidate and people who know the candidate but were not listed as a reference. The candidate must have been in practice for 10 years to even be considered, so it is likely the references and people who know and practice against (or appear before) the candidate have similar experience. The ten year practical litigation experience perspective is not necessarily lost just because the investigator or JEC member reading the investigation does not meet that requirement. What references have to say, particularly those "off list" references, should be very important.

Anonymous said...

How much less than ten years of practical litigation experience should be requires of JEC committee members? Ten years is not a lot. The first ten years of my practice went by in the blink of an eye. I have a different take on all this. I sat on a bar association JEC. That experience makes me think that bar associations should not be in the business of qualifying judicial candidates. Bar associations do not apply the same tests or standards to each candidate and it is highly political in some instances. Not fair to some candidates at all and misleading to the public.

Albert said...

Answers to 8:20's two questions: 1) Of the 58 judges standing for retention this year, seven got one "no" each from Alliance bars and one got two "no"s. All "yes" from 86% passed unanimously. And of the 84 candidates who have sought a judicial vacancy this year, 13 got negatives from all bars, 18 got negatives from some, and 6 got one 56% passed unanimously. 2) Historically, slightly more of the subcircuit contests are lacking in positively rated candidates than countywide contests. The October 2014 issue of the CBA Record has a substantial analysis of the countywide-versus-subcircuit-question if anyone's interested.

Anonymous said...

Jack, I recall that during this last Associate List go around you withdrew your name from consideration as your own Bar Association rating slipped from prior years. You did not elaborate much but I gathered that at one time your ratings were perfect; then, as you became more practiced and more experienced, one or more Bar Association determined you were no longer qualified. I read the Law Bulletin every day and have not read about any malpractice cases or ARDC beefs against you. Also guessing the WBA did not have a "hot mic" recording of you and your insurance law buddies discussing the buffalo wings at Hooters. So, for your ratings to have slipped really exemplifies the inconsistency, unfairness, and sometimes inexplicable conclusions some Bar Associations reach. I attribute this to a general lack of experience of JEC members. It just makes no sense and I am not willing to say it was politically or personally motivated. Your personal experence also reflects how terrible you must have felt to react the way you did. I think it is an excellent idea for the Alliance to require that participating Bar Associations employ some sort of standardized experence requirements to serve on their individual JEC's. Why not 10 years?

Anonymous said...

Back off the 10 year rule because it ain't going to happen. If anyone really feels that strongly about it, there's two choices. Appear. Or not appear.