Illinois Constitution Could Be Big Obstacle for Judge Maddux and Other 'Veteran' Judges

The Illinois Constitution could play as big a determining factor in Judge William Maddux’s lawsuit in 2008 as it played in Judge Joan Margaret O’Brien’s lawsuit in 2006. However, while the Constitution supported O’Brien’s arguments in her – and her two colleagues’ – effort to stay on the ballot, the Constitution could be the biggest obstacle for Judge Maddux and other judges facing retirement at age 75.

Things are never dull in the Cook County judiciary when petitions are being circulated in the fall every two years: someone’s changing their name, or someone missed the deadline for filing for retention, or – this year – a preemptory strike against the mandatory retirement age.

When Judge O’Brien sued two years ago to stay on the retention ballot, after missing the deadline by one day, the court dealt with the matter in almost record time. Judge Patrick McGann quickly ruled the December deadline unconstitutional – rightly so – despite the fact that the deadline allowed for greater efficiency in guaranteeing the voters the opportunity to choose replacements for retiring judges. However, the statute setting the December retention deadline was so out-of-step with the Constitution, the Supreme Court issued a rare unanimous bench decision after hearing oral arguments. Three judges gained a place back on the ballot, while the nine candidates who circulated petitions and filed for the vacancies found themselves off the ballot.

The resulting changes in the election procedures from the O’Brien v. White decision could make things interesting should the court decide favorably in Maddux v. Blagojevich. But, first, one must consider the chances the court would rule in Maddux’s favor.

The Illinois Constitution clearly states in Article VI, Section 15: “The General Assembly may provide by law for the retirement of Judges and Associate Judges as a prescribed age.” That provision supports 705 ILCS 55/1, which states: “A judge is automatically retired at the expiration of the term in which the judge attains the age of 75.”

That might have ended the story had the First Appellate District not reapplied the mandatory retirement “only to sitting judges” in Anagnost v. Layhe in 1992. In its application, this law meant “mandatory retirement” precluded sitting judges from running for retention. As if perfectly pointing out the interesting complexity in the law’s application – or lack thereof – to “retired” judges choosing to simply to run against an opponent, the author of the Anagnost decision – 75-year-old Justice Alan Greiman – is now running in the open Appellate seat vacated by Supreme Court Justice Anne Burke.

Additionally, the Court has frequently tapped “retired” judges to occupy vacated seats through appointment for all levels, from Associate Judge to the Supreme Court.

With all that being said, the federal court has supported mandatory retirement of Illinois judges several times, including two prominent cases that are described by Bernard S. Meyer in his book Judicial Retirement Laws:

In Trafelet v. Thompson (594 F.2d 623, cert. den. 444 U.S. 906), mandatory retirement at age seventy was held rationally related to the state’s purpose of competency of its judiciary and, therefore, not unconstitutional; and in U.S. Equal Employment Opportunity Commission v. State of Illinois(721 F.Supp. 156) it was held not in conflict with the Age Discrimination in Employment Act as to appointed state judges, although that statute (29 U.S.C. 680[f]) expressly excluded from its protection only elected officials including judges.

But, plaintiff Maddux directs his arguments towards several different angles, including the Constitution’s mandatory retirement provision with the same document’s ban on “special legislation.” Judge Maddux also intends to challenge the concept that age is somehow tied to judicial competency.

David Novoselsky, the attorney for Judge Maddux, hit on the age and competency question in his comments in Thursday’s Chicago Daily Law Bulletin: “Judge Maddux, I think everyone will agree, is an excellent judge. He was born in 1935. So what? Why is 75 the magic number? Shouldn't it be based on the actual ability of the judge?”

According to the Chicago Daily Law Bulletin, Judge Maddux “contends the law undermines the intent of the Illinois Constitution, which was to use the retention system to remove judges from partisan elections following their initial election to the bench, ‘a benefit intended to be conferred on both the judges and the electorate.’”

Judge Maddux’s suit reinforces the fact that we currently don’t have a good system of rating judicial competency for judges of any age. Instead, voters mostly elect judges based upon three factors: age (or lack thereof), political affiliation (especially in places like Cook and Madison counties), and popularity in bar association polls (or even popularity within the plaintiffs bar).

But it’s unlikely that anything short of a Constitutional Convention could resolve these issues.

So how could the results of O’Brien impact the 2008 elections if Judge Maddux were to get a favorable result? The key is the change in date for retention notification from December to May. If the court were to rule the mandatory retirement statute invalid before May 2008, 75-year-old judges across the state could simply choose to tell the Secretary of State they intend to run for retention.

In Madison County, for example, Democrat Associate Judge Richard Tognarelli is already circulating petitions for “retiring” Judge Nick Byron’s seat. In fact, Judge Tognarelli recently launched his campaign website. He has endorsements from six unions and the Democratic Party of Madison County. What if Judge Byron was able to instead run for retention? If you look at the experience of 2006, is it impossible to think that candidates already chosen by primary voters could be tossed off the general election ballot?

It will be interesting to see if this case works its way through the system as quickly as the O’Brien case, especially since the arguments are much more complicated. But, just as easily, it could dramatically change the judicial election landscape in 2008.

View Judge Maddux's Complaint.

-- Al Adomite
Illinois Civil Justice League
September 17, 2007