One thing the Legislature may be doing while it is not passing a budget

The Illinois House is considering a bill, introduced by Rep. Luis Arroyo, to amend the Cook County subcircuit statute, 705 ILCS 35/2f, to allow Cook County subcircuit boundaries to be redrawn after the next census. The bill is HB 711. Current status, according to the Illinois General Assembly website, is as follows (click on image to enlarge or clarify):

Interestingly, no amendment appears to have been offered to §2f(e) of the Circuit Courts Act, 705 ILCS 35/2f(e). Section 2f(e) provides:

A resident judge elected from a subcircuit shall continue to reside in that subcircuit as long as he or she holds that office. A resident judge elected from a subcircuit after January 1, 2008, must retain residency as a registered voter in the subcircuit to run for retention from the circuit at large thereafter.

This provision was added to §2f after the Illinois Attorney General issued an opinion in 2006, No. 06-005, stating that subcircuit judges could move from the subcircuit after being retained in office. That's because judges are not retained in office by only the voters in their subcircuit; instead, they must face a countywide yes or no vote. The Legislature may not have intended that subcircuit judges would be permitted to move after their first retention election -- as §2f(e) would subsequently confirm -- but the Attorney General concluded that, after facing all of Cook County's voters in a retention election, the "unit" electing the judge was different than it was originally and the newly retained judge would be free to relocate anywhere within that new, larger unit (in our case, anywhere within Cook County).

The problem with §2f(e) is that it may be unconstitutional: In Thies v. State Board of Elections, 124 Ill.2d 317, 529 N.E.2d 565 (1988), the Illinois Supreme Court stated that the Legislature is without power to impose requirements for judicial office greater than those imposed by the Illinois Constitution. In that case, the Legislature had created a judgeship for Champaign County, insisting that anyone running for that position be a resident of Champaign County, but requiring also that the judge would be elected by all the voters in the Sixth Circuit -- which included counties other than Champaign. In other words, a duly licensed attorney residing in the unit from which the judge was to be elected was ineligible under the statute unless he or she lived in Champaign County. This, the Supreme Court said, the Legislature could not do.

In her 2006 opinion, the Attorney General determined that the reasoning of the Thies court would likely apply in the case of a judge moving from a subcircuit after being retained in office; after a judge is retained by the entire county, the unit selecting that judge had changed.

Section 11 of Article VI of the 1970 Illinois Constitution provides:

No person shall be eligible to be a Judge or Associate Judge unless he is a United States citizen, a licensed attorney-at-law of this State, and a resident of the unit which selects him. No change in the boundaries of a unit shall affect the tenure in office of a Judge or Associate Judge incumbent at the time of such change.

Section 12(d) of Article VI provides that circuit court judges must run in retention elections (emphasis mine):

Not less than six months before the general election preceding the expiration of his term of office, a Supreme, Appellate or Circuit Judge who has been elected to that office may file in the office of the Secretary of State a declaration of candidacy to succeed himself. The Secretary of State, not less than 63 days before the election, shall certify the Judge’s candidacy to the proper election officials. The names of Judges seeking retention shall be submitted to the electors, separately and without party designation, on the sole question whether each Judge shall be retained in office for another term. The retention elections shall be conducted at general elections in the appropriate Judicial District, for Supreme and Appellate Judges, and in the circuit for Circuit Judges. The affirmative vote of three-fifths of the electors voting on the question shall elect the Judge to the office for a term commencing on the first Monday in December following his election.

No provision was made for retaining judges by subcircuit because there were no subcircuits in 1970. So, although the Legislature clearly rejected the AG's opinion in 2007 when §2f(e) was passed, the constitutional argument has not been resolved.

Ah, well. If legislators did their jobs better, even more lawyers would be out of work than presently.

Meanwhile, if HB 711 becomes law, subcircuits will get redrawn in time for the 2022 primary. That would be interesting.