The ruling on Feb. 27 by the Illinois Supreme Court that reinstated three Cook County judges on the November retention ballot came as little surprise to those in the crowded Chicago courtroom.

As lawyers presented arguments for an hour that morning, it was evident that the seven justices felt the provisions in Article VI, Section 12 of the Illinois Constitution could not be altered by the legislature.

At issue was whether a candidate for retention must declare not less than six months before the general election, as provided in Section 12(d), or no later than Dec. 6 of the prior year, as required by Section 7A-1 of the state election code.

The three judges – O'Brien, Carol Kamin Bellows and James Michael Varga – filed later than Dec. 6 and were denied certification by the secretary of state.

The Supreme Court ruling was formalized March 6 in a written opinion emphasizing that the constitutional article “is not ambiguous,” and the offending section of the election code “is facially unconstitutional.”

Chief Justice Robert R. Thomas had opened the dialog Feb. 27 by asking how the legislature could take away a right that is guaranteed by the Constitution.

Assistant attorney general Brett E. Legner responded that 12(a) gives the General Assembly the power to enact election law, but 12(d) merely tells judges when they may not file and is otherwise ambiguous.

Justice Mary Ann G. McMorrow recalled that the purpose of the change in the election code was to prevent judges from waiting until after the primary election to decline to seek retention.

Thus there would be no candidates for the vacancies, Legner said, but Justice Thomas R. Fitzgerald reminded him that the Supreme Court has the power to appoint when any judge retires or loses a retention election.

Thomas interjected that “put in simplest terms,” the Constitution says filing in May is acceptable. “Read it like it is,” he said, “not how you would like it.”

After the state's defense of the election code concluded, attorneys Mathis W. Delort and Burton S. Odelson, for the plaintiff judges, argued their constitutional positions for 20 minutes.

Given time to respond, Legner pointed out that the 1977 statute had worked for 29 years without a problem.

“But that doesn't affect whether it's constitutional or not,” Thomas interrupted.

The chief justice then recessed the hearing at noon and asked counsel for the parties to return at 1:30 p.m.

As the court reconvened, Thomas expressed surprise that about 50 of the 70 people who sat through the morning session had returned to hear the result.

In a short statement, he said the lower court's ruling of unconstitutionality of the statute was affirmed unanimously. The three judges would be certified for the retention ballot in November.

The court also ordered election officials not to tally any votes received by the eight candidates who filed for the three assumed vacancies in the primary election.

The court adjourned at 1:34 p.m. Early voting in the primary had already begun.