State high court overrules voters on judge picks

Jeff Coen and Todd Lighty, Tribune reporters

The Illinois Supreme Court has repeatedly granted new life to judges after they were rejected by Cook County voters, despite promising to end the questionable practice nearly 20 years ago.

A Tribune review found that since 2000, the Supreme Court has reappointed 18 judges to the Cook County Circuit Court bench after they were turned away at the polls, including 13 currently hearing cases. Many of those judges are politically active Democrats.

Critics say the practice subverts the will of the voters and may violate the state constitution. Facing such criticism in 1993, the Supreme Court said it would stop, but it didn't.

Asked about that broken pledge this week, a Supreme Court spokesman told the Tribune that justices privately decided months ago they will no longer use their "recall" power to keep judges on the bench after they lose an election.

The news was greeted Thursday with cautious optimism by critics.

"We believe this (practice) is not authorized by the Illinois Constitution," said Malcolm Rich, executive director of the Chicago Council of Lawyers, which pushed for change in 1993.

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Rich praised the court and said he hoped the justices would follow through this time. "We'll see how it all works out," he said.

The state constitution gives voters the responsibility of electing circuit, appellate and Supreme Court judges. But it also gives the seven Supreme Court justices the power to appoint some judges, including bringing retired judges back to the bench if their services are needed –- a practice known as recall.

Many of the 94 judges recalled to the bench statewide since 2000 were veteran judges brought out of retirement to fill temporary vacancies when another judge died or retired in a court circuit outside Chicago, the Tribune found.

But in Cook County, the court's definition of a retired judge has been expanded to include relatively new judges who lose elections. Those judges often are repeatedly reappointed and serve for years without having to face the voters again.

The Tribune's review shows the pattern usually goes like this: the Supreme Court appoints a lawyer to the bench, the newly minted judge later runs for election and loses, then the high court keeps the losing judge on the bench at the same salary and benefits.

In 2010, the court reappointed seven judges who lost Cook County elections. The year before, the court reappointed four judges who had lost in the 2008 Democratic primary.

David Morrison, deputy director of the Illinois Campaign for Political Reform, said the court's actions appear disrespectful to the will of voters.

"The court should be aware of how the public will view them taking the voters' rejects and putting them right back on the bench," Morrison said.

The practice came under sharp criticism in 1993, when the Supreme Court recalled nine Cook County judges who had been defeated in the Democratic primary the prior year. The Chicago Council of Lawyers, which evaluates judges and has pushed for changes in how they are chosen, threatened to sue to stop the court.

The court responded by saying the practice would end. Instead, it lived on.

In 2009, the court reappointed 11 judges in Cook County, including four who had lost the Democratic primary in February 2008. The four are judges Martin Coghlan, the uncle of two other county judges; Lauretta Higgins Wolfson, the wife of a former appellate court judge; James Shapiro, who has contributed to Democratic campaigns; and Kenneth Fletcher. Another, Joan Kubalanza, was reappointed after failing to be picked as an associate judge and again after losing at the polls last year. Each was given a three-year term.

In 2010, the court reappointed 13 judges, including seven who lost elections in prior years. One was Michael Ian Bender, a judge's son who was appointed by the court in 2008, lost at the polls in 2010 and was recalled to the bench. Another, Pamela Leeming, was appointed by the court in 2009 after she failed to become an associate judge and reappointed after losing a 2010 election.

Fletcher declined to comment, and the other judges did not return messages.

Joe Tybor, Supreme Court spokesman, said the latest decision to stop reappointing Cook County judges who lost elections came after the court's three Chicago justices decided this spring to examine the "longtime practice."

It was a policy decision and did not address critics' complaints that the practice violated the constitution, Tybor said. "It is not a statement on the law," he said.

Justices met with reappointed judges and rejected their request to reconsider.

"In short, our court has determined as a matter of administrative policy that non-elected circuit and appellate court judges shall not be considered for recall" to the bench, Chief Justice Thomas Kilbride said in a June letter to judges.

The ability to return retired judges to the bench is meant to ensure there are enough qualified jurists if caseloads increase or judges leave a circuit. But critics say the high court has exercised its power too broadly.

A short provision in the constitution gives state lawmakers the power to set the retirement age for judges but allows the Supreme Court to return retirees to the bench. "Any retired judge or associate judge, with his or her consent, may be assigned by the Supreme Court to judicial service for which he or she shall receive the applicable compensation in lieu of retirement benefits," the constitution reads.

Rich, the head of the council of lawyers, said it does not appear the court is appointing unqualified judges. However, he questioned whether it was the right practice for getting the best judiciary.

Rich said his group has determined that about 1 in 4 judges appointed to the bench go on to lose a subsequent election. Many of the reappointed judges come from that pool.

"For us, it's that you get so many of these individuals as judges who are just OK," Rich said. "The question for us is why do we have to settle for OK? Why can't we have a system of picking really highly qualified individuals?"

One reappointed judge that Rich's group initially did not find qualified has since moved up the judicial ladder.

Sheldon Harris, a politically connected lawyer appointed to the bench in 2000 — lost a 2002 election and has been repeatedly recalled to the bench by the high court.

He became engulfed in controversy in 2002 after his sons made donations totaling $50,000 to Lisa Madigan, the daughter of Illinois House Speaker Michael Madigan, during her successful run for attorney general. The donations drew the interest of the FBI, which contacted Harris. The FBI's inquiry did not lead to any charges.

Harris also has made campaign donations to a powerful Illinois couple, Supreme Court Justice Anne Burke and her husband, Ald. Ed Burke, 14th, who runs the county Democratic Party's judicial slating committee.

Harris now sits on a state appellate court, having been appointed by the Supreme Court to that post last fall. He did not return messages seeking comment.

Questions over the court's power to recall judges to the bench follows a Tribune story in April that revealed the role political clout played in the selection of Cook County's associate judges. Those judges are chosen by full circuit court judges in a secret ballot meant to improve diversity on the bench and remove politics from the process.

The Tribune found that having the backing of Speaker Madigan boosted a candidate's chances of becoming a judge. Madigan for years has sent letters to voting judges in which he listed the names of lawyers he was supporting, letters that have become known as "Madigan's List."

Revelations of political influence help fuel the debate over whether Illinois judges should be elected by the public or chosen through some other "merit selection" system. But as long as voters have the job, critics say, the Supreme Court shouldn't overrule them.

"You want to have good people on the bench, but you also want the public to recognize that someone would make a quality judge," Morrison said. "Once the voters have said they disagree, the court should respect that."

jcoen@tribune.com