To try to keep their jobs on the bench, three downstate judges are actually choosing to resign.
Twentieth Circuit Chief Judge John Baricevic and Circuit Judges Robert B. Haida and Robert P. LeChien will announce that they will step down from the bench at the end of next year in order to run in the March primary election rather than retention races.
That means they’ll only need a simple majority of the vote rather than three-fifths approval to continue presiding in the Metro East area near St. Louis.
But Baricevic said he’s not simply trying to flout the higher vote threshold enshrined in the state constitution. He said he wants to more vigorously defend his own record and that of the judiciary after drug use by two judges two years ago led to the death of one and a prison term for the other.
“If heroin can get to these guys, it can get to anybody,” Baricevic said Thursday, referring to former St. Clair County judges Joseph Christ and Michael N. Cook. The former died of a cocaine overdose after only 10 days on the bench; the latter was sentenced to two years in prison last year on heroin and weapons charges.
Baricevic said the incident gave the judiciary a “black eye,” and as chief judge, he wants to explain the episode and the general issue of drug use without being as constrained by judicial ethics rules.
“When you’re running for retention, the tenor of the rules, the sort of umbrella of campaigning, is that you are running on your record,” he said. “When you’re running in an open election where a vacancy is declared, you run as a Republican or Democrat, you can go to debates, you can endorse people.”
Baricevic said he, Haida and LeChien are “kind of all in the boat together” in feeling like they will be associated with the Cook incident. All three are Democrats, and the Metro East is known as a Democratic stronghold even though voters there largely backed Republican Gov. Bruce Rauner in 2014.
The move to resign before running for election is unusual, but it’s not completely unprecedented. Retired 20th Circuit judge Lloyd Cueto did the same in 2006 after narrowly surpassing the 60 percent threshold with 63.3 percent of the retention vote in 2000.
Both Baricevic and LeChien were retained in 2010 with slim margins. Baricevic won a 62.5 percent margin and LeChien won with 65.3 percent approval. Haida ran in a traditional, general election in 2010 but was unopposed.
Travis Akin, executive director of Illinois Lawsuit Abuse Watch, said even though avoiding the retention race isn’t technically against the rules, the maneuver fails to “pass the smell test.”
“What we’re against is the abuse of the system, the abuse of the process. And when you have judges trying to skirt the law to run for retention, so they have an easier path to be re-elected, that’s an abuse of the process,” Akin said.
But Baricevic insists it won’t necessarily be easier to run in a general rather than a retention race, saying he’ll have to survive a primary and general election battle in order to get back on the bench.
“This isn’t a duck or a dodge. It’s not playing games,” he said. “There are two different systems. A judge gets to pick. You can escape the political by choosing to run for retention. If you choose to expose yourself to the political, it’s a tougher race and so the number’s lower.”
Ann M. Lousin, a professor at The John Marshall Law School and expert on the state constitution, said more judges should be chosen and kept the way associate judges are — with a retention vote by other sitting judges.
She said with recent, controversial retention fights in Illinois — such as the one Supreme Court Justice Lloyd A. Karmeier faced last year — it makes sense that the 20th Circuit judges would want to be able to fight for themselves more openly.
“It certainly is getting around things, that’s for sure,” she said. “You might say it violates the spirit of the constitution. But on the other hand, I think the people of Illinois want elections. … And this is perfectly legitimate election practice.”