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Election of three justices:
the importance of the 'third branch' of state government

In November, Illinois voters will elect three men to sit on the state's highest court until the year 2000. The men will make salaries in excess of $100,000 a year, and with the other four Illinois Supreme Court justices will preside over the largest single court system in the world. The rules they make and the laws they decide will affect issues within the legal system, business community and family affairs in Illinois. They will be part of the third branch of government, the branch some say is the most powerful of all.

Their names are not likely to appear on evening news programs nor on the front pages before the election. The Illinois Supreme Court races are quiet. Like other judicial races, they are run in the hush of bar association committee meetings and in closed rooms where leaders of political parties decide who to reward with what nomination.

In the next 10 years, the Illinois Supreme Court will be confronted with fundamental questions about the death penalty, abortion and the right to die. It is likely to decide political questions such as reapportioning election districts in 1991. It may decide a fundamental question of whether the Illinois Constitution requires the state legislature instead of the property tax of local districts to fund public schools. The six candidates for the three open seats on the Supreme Court cannot tell the voters what they think about any of those matters because ethical rules created by the Illinois Supreme Court itself forbid them. Voters are left to judge the judges on the basis of bar association evaluations, newspaper endorsements and the paltry attention political reporters give to the campaigns.

The three new justices will be confronted with a court system that has been wracked by scandal, intensely criticized by the Illinois auditor general for lax accounting practices, and accused by one of the major bar associations of "insensitivity to ethics" in its handling of disciplinary matters involving well-connected lawyers. Other administrative problems, including backlogs, jail overcrowding and ongoing investigations into sitting judges will become part of their purview since the Supreme Court administers Illinois' entire court system. The candidates can discuss administrative issues. Observers of the Illinois judiciary unanimously say that the Illinois Supreme Court races are as important as the governor's race. Says Jeff Gilbert, president of the Chicago Council of Lawyers: "They are the third branch of our government, and in some ways more important [than the executive and legislative branches] because they have ultimate authority over what Illinois law means, as to what one's rights are when injured, when involved in a business dispute, as to Illinois criminal law, as to all the sorts of public programs the state administers."

The state Supreme Court may have even more impact because of the U.S. Supreme Court's new conservative bent. Because state constitutions often guarantee at least as many and sometimes more rights than the federal constitutions, lawyers may begin taking cases involving abortion, equal rights, privacy and civil liberties to state high courts instead of the U.S. high court. Because retreat from centralized government is implicit in the new conservatism, more issues may be left to the state legislatures to decide, and since state high courts ultimately must pass judgment on controversial state legislation, they decide what is law.

Howard London, president of the Illinois Appellate Lawyers' Association says: "In the next five years, two more U.S. Supreme Court judges will be replaced, and there will not be a single so-called liberal judge there. Consequently, you will see either a restriction or a retraction of gains in areas of civil liberties. I think you will see lawyers trying to keep decisions like Roe v Wade alive in the state Supreme Court, through due process or privacy provisions, and they may be followed by other litigants in other areas such as criminal law. In the past 20 years, the U.S. Supreme Court became the forum of last resort for the underdog. Now we are going to see the state legislatures and the state supreme courts become the forums of last resort for the underdog."

The Illinois Supreme Court doesn't have a tradition of activism on behalf of any political viewpoint. It isn't likely to change much politically if there are no surprises in November. The Democrats are expected to win the two seats from Cook County (First Judicial District) currently held by Democrats. The potential upset would be in the Third Judicial District, where Appellate Justice Tobias Barry of Ladd, the Democratic candidate, is regarded as having a good chance against Appellate Justice James Heiple

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of Pekin, the Republican. Whoever wins replaces the most conservative voice on the high court, Justice Howard C. Ryan, a Republican.

Administration of the state court system is the job of the Supreme Court, and the public, the press and the state auditor general criticize its administrative practices. Some have charged that the Supreme Court has done little to respond to the federal Greylord investigation of Cook County Circuit Court corruption. In fact, the court did change a key ethics rule in a case called in re Himmel by dramatically increasing the responsibility upon lawyers to report infractions and corruption of their colleagues. Major recommendations put forward by the so-called Solovy Commission, headed by Chicago lawyer Jerome Solovy, remain for consideration.

The state auditor general (appointed by the legislature) has reported the court system is rife w'th lax financial procedures. The auditor reported that the court spent $146.6 million in 1989 and failed to comply with required accounting practices. The specific findings included evidence that employees on vacation or leave were not accounted for, 209 employees were without job descriptions, and the court made its purchase of equipment and commodities without contacting the Department of Central Management Services, a violation of state statute.

Another issue facing the court is whether the judicial branch

Michael A. Bilandic

Democratic candidate for Supreme Court justice elected from Cook County to fill the seat vacated by Daniel Ward; his opponent is Robert V. Boharic.

The office of First District Appellate Justice Michael Bilandic is ascetic: a desk, a couch and bare, white walls. Two framed photographs that he took are sitting on the couch. When asked why they are not hanging up, he replies, "I won't be here long."

Bilandic, 67, is almost assured of election. Name recognition in Cook County judicial races is always low, but he has the supreme advantage of having been the mayor of Chicago. A first generation American (his Croation parents came to the U.S. as children), Bilandic has known poverty, power and wealth. He grew up in an ethnic neighborhood where his family couldn't afford to buy him a bicycle; he went on to marry Heather, a wealthy socialite. The two live on tony Astor Street and are often in the society pages. Bilandic graduated from DePaul University Law School in 1949.

Bilandic is one of the driest individuals in a field of candidates that is short on strong personalities. To talk to him at length is like chewing cardboard, but he is called a witty and erudite judge by appellate lawyers who have practiced before him since he became an appellate justice in 1984. After he was mayor he was a practicing lawyer in his own firm.

Though there is a trace of "da boys" in his diction, Bilandic says he is "a closet egghead." He wants to sit on the state's highest court because he enjoys writing and aims to "write simply." He is not taking campaign contributions, plans no major ad campaign and hopes "to spend nothing, if possible."

Never implicated in any of the scandals that snared so many of his political colleagues, Bilandic does not judge them severely. "Everyone says, be holy and virtuous. A lot of the people [netted in Greylord] had personal problems, which is not necessarily an excuse. But even the Bible says a just man falls more than once every day. So we're all going to make mistakes." Bilandic says he has no "magic formula" to stop court corruption, but he believes the Illinois Supreme Court's disciplinary agencies should report their findings immediately to the U.S. attorney instead of shepherding cases through the lengthy hearing process that exists now. "If you turn them over later, the ease is ruined," he says.

His personal hero is Benjamin Cardozo, the New York judge who went on to become an influential liberal on the U.S. Supreme Court early in this century. Bilandic tells about Cardozo whose father, a New York politician, was convicted of official corruption. The younger Cardozo did not leave the state, but remained to become one of the country's most respected jurists. "He stayed and succeeded in the place where his father had dirtied the family name," Bilandic says. "You see, none of this [corruption] is new."

Bilandic v Boharic


Robert V. Boharic

Republican candidate for Supreme Court justice elected from Cook County to fill the seat vacated by Daniel Ward; his opponent is Michael A. Bilandic.

Circuit Court Judge Robert Boharic has been a criminal courts judge, presiding over the street's meanest cases, almost as long as his opponent has been on the appellate bench. Boharic was approached to run for the Supreme Court by the Republican party. In the name game that passes for Cook County's judicial nominating process, his has some interesting points: It's Bohemian and uncannily close to "Bilandic."

Boharic is running on a law-and-order platform, citing his longer experience in the trial courts as a prosecutor, criminal defense lawyer and judge. He has put forward a "blueprint for court reform" in which he advocates speeding up criminal cases and especially death penalty appeals. He says the most difficult legal decisions he has made involved the death penalty. His experience is significant because, he says, "In 1989, 17 percent of all the written decisions of the Supreme Court were capital cases, and almost half were criminal law cases."

He says he wants to serve on the Supreme Court because he feels he has the energy needed to "lead" the court system out of its history of scandal. "As a young attorney and judge, I and others have suffered through a period of crisis Greylord, Kaffeeklatsch, overcrowding in the [Cook County] jail, capital cases taking 12 years. We have problems that need to be addressed in the system, and addressing them would be very rewarding to me."

At 44, Boharic is the youngest candidate. He was the only candidate to receive a "not qualified" rating from the Chicago Council of Lawyers, which noted that lawyers found him lacking in "judicial temperament." The Chicago Bar Association found both him and Bilandic "qualified" their middle ranking. Boharic in person is earnest but not eloquent. He wants to debate Bilandic, but by late summer Bilandic was not taking the bait.

August & September 1990/Illinois Issues/17

should lobby the legislature. The high court's impartiality was questioned early this year for its hiring of lobbyists. A number of the registered lobbyists were lawyers who practiced before the court or who were members of law firms that do business before the high court. Candidates opposed to the Supreme Court's hiring of lobbyists are Judge Robert Boharic and Justice Charles Freeman of Cook County.

The new justices will be on the court that also considers recommendations of the Illinois Task Force on Gender Bias in the Courts. Candace Gorman, president of the Women's Bar Association of Illinois, says she hopes the candidates will consider discussing some of the issues raised in the report issued this summer. "Some of the recommendations will be easy for them to address, such as gender neutralizing the language of the Supreme Court rules," she says.

The major bar associations are unanimous in hoping that the next Supreme Court considers making merit selection a part of the way it fills vacancies on the bench. The high court traditionally fills several hundred circuit and appellate vacancies annually, and these interim judges often go on to be slated and elected. Supporters of merit selection want the justices to appoint judges from a recommended list of candidates. Four of the six candidates agree in principle to this process: Barry from the Third District and three from the First District, Judge

Boharic graduated from the University of Illinois law school and lives in suburban Riverside with his wife and four children.

Charles E. Freeman

Democratic candidate for Supreme Court justice elected from Cook County to fill the seat vacated by Seymour Simon; his opponent is Robert C. Buckley.

As one of the Cook County Democratic party's nominees, First District Appellate Justice Charles Freeman has a good shot at becoming Illinois' first black Supreme Court justice. Freeman is probably less of an "outsider" than some of the black justices who might have been nominated. He has 15 years of judicial experience and a stint on the Illinois Commerce Commission, appointed by Gov. Dan Walker. Unlike R. Eugene Pincham, his former colleague on the appellate bench who left to campaign for president of the Cook County board, Freeman has not campaigned on an overtly pro-black platform; nor has he made public statements about race.

Freeman, 56, works in an office decorated with miniatures of English hunting scenes, and he spends weekends on his motor boat in Lake Michigan. He was born in Virginia and graduated from John Marshall Law School in 1962. He lives on the city's south side with his wife and one child. The Chicago Bar Association and the Chicago Council of Lawyers rated him "qualified.''

His main interest in court reform is increasing access to the courts and changing "the public's perception of the court system." He says, "The Supreme Court sets standards in ethics and the moral tone." To that end, he says he would encourage more pro bono work from the state's lawyers, and he would work to educate law students about the hard work that goes into lawyering. "People have to recognize that there is a duty and that the profession must be responsible to society."

Freeman is particularly interested in having the Supreme Court hold more sessions in Cook County, which he says would be cheaper for the court system, including the public defenders who have to make the trek to Springfield. He says 60 percent of the high court's cases emanate from Cook County, and a significant additional number come from the collar counties. "I believe the Supreme Court should have a certain air about it, and the halls in Springfield are very dignified, but there are impelling reasons to come to Chicago and other cities."

Freeman cites his background with the Illinois Commerce Commission and as an arbitrator with the Illinois Industrial Commission as proof that he understands administrative work and would be able to handle the numerous administrative duties of the high court position. "The most rewarding part of the job to me would be administrative matters, dealing with the agencies the ARDC [Attorney Registration and Disciplinary Commission], the Board of Law Examiners and rule-making. I would open it up." He is for regular state audits of the Supreme Court. "I cannot understand the argument that it [an audit by the Illinois auditor general] impacts on the separation of powers," he says.

Freeman v Buckley


Robert C. Buckley

Republican candidate for Supreme Court justice elected from Cook County to fill the seat vacated by Daniel Ward; his opponent is Charles E. Freeman.

First District Appellate Justice Robert Buckley is a life-long Democrat whose political claim to fame is having been the only Democratic judge ever elected from the Cook County suburbs when he began his judicial career 32 years ago. The silver-haired amateur thespian also has the longest experience on the bench of any of the six candidates. To run for the Supreme Court, Buckley switched parties, and he believes his long experience and his early success getting elected as a political anomaly give him a shot at beating Freeman. Some political observers also give him fair odds. Buckley was campaigning nightly on the streets during the summer and hoped to raise more than $100,000 to buy advertising.

Buckley, 66, is the only candidate who received a "highly qualified'' rating from the Chicago Bar Association, but the Chicago Council of Lawyers rated him "not qualified," citing lawyer comments that he was capable but lacked insight. He says one of his main interests in getting elected to the high court is to update outmoded laws or applications of law. "I don't want to legislate, but we shouldn't be impeded by a law just because it's been on the books for 100 years. We should change the law or change our position on it."

He says the greatest problem facing the Illinois Supreme Court is "the litigiousness of our society" and that the new court will have to consider expanding existing alternative dispute resolution perhaps even removing traffic cases from the mainstream system.

18/August & September 1990/Illinois Issues

Boharic and Justices Robert Buckley and Freeman.

Most observers don't expect the the Illinois Supreme Court with its three new justices to make major changes. On administrative matters, Jeff Gilbert says: "They could make the disciplinary sanctions tougher, they could improve administration of the lower courts, they could increase the number of appellate courts or change many procedures of the lower courts to improve things. But, I wouldn't predict any of that."

On issues of law, even those in the know cannot predict exactly what will come before the court nor how the court or the candidates for the three seats this year would decide a case. Jim Dudley, executive director of the Illinois Trial Lawyers' Association, says, "I never thought about the Tax Accountability amendment coming up, or mandatory auto insurance being ruled unconstitutional, and that's what the Supreme Court gets: cases nobody wants."

Whatever the three new justices do, it is likely that the public will know very little about them before they are elected. For better or for worse, that is the way the judicial selection system works.

Nina Burleigh is a Chicago writer.

He believes corruption can be battled by improving the quality of the judges, and to do that, he says, they must be paid more. "Our court system is losing its best and brightest lights." he says, naming some well-known Chicago judges who have recently left the bench. "They find themselves unable to give their children the education they had. These are people who should be running for the Supreme Court right now."

Buckley, a World War II veteran and Georgetown University Law School graduate, lives in Arlington Heights with his wife and is the father of five grown children. He is an avid sailor and family man who says the hardest thing about being on the Supreme Court will be spending 18 weeks a year away from his wife.

Tobias Barry

Democratic candidate for Supreme Court justice elected from the Third Judicial District to fill the seat vacated by Howard C. Ryan; his opponent is James D. Heiple.

Third District Appellate Justice Tobias Barry is the only candidate with experience in the legislature. He served for 14 years in the Illinois House, 1960-1974, before being elected to the appellate court as a Democrat in a district that has traditionally been regarded as Republican.

Barry has a reputation as a dissenter and admits to an "activist" bent. The most rewarding aspect of the Supreme Court job, he says, would be "seeing improvement. I enjoy challenge. We have rules, legislative dictates to live by, and if I see something askew, I try to do something about it." He is the only candidate who guardedly addressed the abortion issue in an interview: "Needless to say, we have tackled the issue [on the appellate court] several times, and in general, I would say that philosophically I am for openness and individual rights within constitutional bounds."

The greatest problem facing the Supreme Court right now, he says, is lack of respect for the legal system by the public. "As a result perhaps of Grcylord, the entire system has been damaged very seriously, and it needs attention. Three new members of the court have an opportunity to change that."

Barry says that he writes dissents when he finds "something I feel strongly about." He says, "Dissent is necessary in indicating to the bar or bench that change is needed or that the majority is absolutely wrong." Barry, 60, is a World War II veteran and graduate of Notre Dame Law School. He is married and the father of four children. He has been active on many committees and in many areas of the legal system; he now serves on the Industrial Commission appeals court which is the court of last resort for workers' compensation claimants. He also counsels fellow judges with drinking problems for the Judge's Assistance Program. He hopes to raise more than $100,000 in campaign contributions.

Barry v Heiple


James D. Heiple

Republican candidate for Supreme Court justice elected from the Third Judicial District to till the seat vacated by Howard C. Ryan; his opponent is Tobias Barry.

As a former law clerk to Supreme Court Justice Howard C. Ryan, Third District Appellate Justice James Heiple would seem to be the selection of choice for supporters of Ryan's conservative views. Heiple, who declined to be interviewed for this article, comes from a wealthy Peoria area family; he has been financing his campaign himself.

During the primary, he was rated "qualified" by the Illinois State Bar Association, two notches lower than Barry, who was rated "exceptionally well-qualified." That prompted Heiple to write in the Peoria Journal Star that the state bar rates lawyers by how well they would serve the bar associations. "My opponent is the most highly qualified to represent the interests of the Illinois Bar Association on the Supreme Court," he wrote. "I am not, indeed have never been, 'one of the boys.' " Heiple has served as chairman of several Illinois State Bar Association committees, including the Judicial Administration Council, the Bench and Bar Council and the Committee on Legal Education and Administration to the Bar.

Although the Heiple-Barry race could be close, both men have signed agreements not to run negative campaigns, Barry says.

Heiple, 57, was elected to the circuit court in 1970 and to the appellate court in 1980. He is a graduate of the University of Louisville Law School. A "life member" of the National Rifle Association, he holds membership in various private clubs, historical societies and the Grace United Methodist Church of Pekin, where he has given lay sermons, including one that won an award from the Freedoms Foundation entitled "Lawlessness in America Why it Increases." He is married and the father of three children.

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