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Judicial Rulings                 

Political parties cannot fill
ballot vacancies for judgeships

Unlike other ballot vacancies, those for judgeships cannot be filled by party resolution. The Illinois Supreme Court's March 18 decision could mean that in November as many as 48 Cook County judgeships will be uncontested, but it has been hailed as a step in the depoliticization of the bench.

In 1992 the Democrats ran no candidates in the primary for the 13th judicial subcircuit but later nominated a candidate by party resolution. The Republican candidate objected on constitutional grounds, arguing that Art. VI, section 12(a) of the Illinois Constitution requires nomination of candidates for judgeships by primary election or petition.

The county electoral board and the circuit and appellate courts allowed the name to remain on the ballot.

The high court resolved the issue even though the plaintiff won the election. It held the case not to be moot because of a substantial public interest arising from the likelihood that the situation may recur and the need for an authority to guide officials when it does.

Subsequent sections of the Election Code provide for nomination by party resolution to fill vacancies in elections for legislative and executive positions but not judicial positions. The court ruled that this meant legislative intention not to allow nomination of judges by party resolution and pointed to a regulation of the State Board of Elections that specifically makes this exception (see 26 Ill. Adm. Code sec. 207.10 (1992)).

Justice Charles E. Freeman wrote the opinion in Bonaguro v County Officers Electoral Board (Docket No. 74907). Justice James D. Heiple, joined by Chief Justice Michael A. Bilandic and Justice John L. Nickels, wrote a special concurrence. The plaintiff had argued that Art. VI, sec. 12(a) of the state Constitution bars nomination by party resolution. The majority ruled that its disposition of the case under statutory interpretation made a constitutional ruling unnecessary. Heiple said the court should address the issue for judicial economy and called for strict interpretation of Art. VI, sec. 12(a): "Supreme, Appellate and Circuit Judges shall be nominated at primary elections or by petition."

Jury trial for property seizure

The Illinois Supreme Court had to return to the state of the law in 1791, the effective date of the U.S. Bill of Rights, in order to rule unconstitutional a provision of the Drug Asset Forfeiture Act (see Ill. Rev. Stat. 1991, ch. 56 1/2, par 1679(F)). Its March 24 decision was the first time it had addressed the matter.

The state had moved to seize the home of a man found guilty of possession of a controlled substance. His wife, who owned the property in joint tenancy, requested a jury trial. The pertinent portion of the act says, "The hearing ... must be by the court without a jury."

The Illinois Constitution provides that "the right of trial by jury as heretofore enjoyed shall remain inviolate" (Art. I, sec. 13). This has been interpreted as applying to common law actions known when the Constitution was adopted in 1970. The U.S. circuit court and courts of other states have held that as of 1791 jury trial was the common practice for seizures of property (in rem, in legal parlance). The court said "a right to a jury trial, in civil proceedings in rem for the enforcement of statutory forfeitures existed prior to the adoption of the Illinois Constitution. In turn, we find that article I, section 13,... preserves this right." It declared only this provision of the statute unconstitutional, leaving the remainder operative.

Justice James D. Heiple wrote the opinion in People ex rel. O'Malley v 6323 LaCrosse Avenue (Docket No. 75447).

F. Mark Siebert

May 1994/Illinois Issues/29