Introduction

The stated purpose of the Judicial Districts Act of 2021 “is to redraw the Judicial Districts to meet the requirements of the Illinois Constitution of 1970 by providing that outside of the First District the State ‘shall be divided by law into four Judicial Districts of substantially equal population, each of which shall be compact and composed of contiguous counties.’”¹ Several justices of the Illinois Supreme Court and appellate court do not reside in the judicial district, as redrawn by the JDA, to which they were elected or appointed (the “Affected Justices”). The first sentence in article VI, section 11 of the Illinois Constitution states in pertinent part that “[n]o person shall be eligible to be a Judge² … unless he is … a resident of the unit which selects him.”³ Viewed in isolation, this might raise questions regarding the ability of Affected Justices to serve out their terms of office or seek retention.

Fortunately, this situation was anticipated by both the framers of the Constitution and the drafters of the JDA. The second sentence in article VI, section 11 of the Constitution adds an important caveat to the residency requirement. It states that “[n]o change in the boundaries of a unit shall affect the tenure in office of a Judge or Associate Judge incumbent at the time of such change.”⁴ To that end, the JDA states that “[n]o Appellate or Supreme Court Judge serving on the effective date of this Act shall be required to change his or her residency in order to continue serving in office or to seek retention or reappointment in office.”⁵

The JDA goes on to specify the manner in which Affected Judges may seek retention by purporting to confer them with the discretion to “seek retention in the district the Judge was elected from or seek retention in the district created by this Act.”⁶ As we will see, the JDA’s retention provisions are ambiguous and raise potential constitutional issues.

This uncertainty places Affected Justices who wish to seek retention in a bind. Their exercise of the putative discretion conferred by the JDA could potentially subject them to challenges to their ability to seek retention, or possibly even to quo warranto actions challenging their entitlement to the office to which they were purportedly retained. Further complicating matters is a lack of case law or other authority addressing the relevant provisions of the Illinois Constitution.

With this conundrum in mind, this article seeks to ascertain the intended meaning of the retention provisions in the JDA and to analyze the constitutionality of those provisions, as so interpreted. The authors hope this analysis will help Affected Justices pursue retention in a manner that comports with both the JDA and the Illinois Constitution. We also hope to reduce the risk that Affected Justices and election officials will have different understandings of the retention options afforded by the JDA.

Three Key Issues Raised by the JDA

1. Does the JDA comply with the Illinois Constitution to the extent it allows Supreme Court or appellate court justices to serve the remainder of their terms even if, after the remapping, they no longer reside in the judicial district to which they were elected or appointed?

Section 35 of the JDA allows Affected Justices to serve the balance of the term to which they were elected or appointed by declaring that “[n]o Appellate or Supreme Court Judge serving on the effective date of this Act shall be required to change his or her residency in order to continue serving in office….”⁷ This provision is clearly constitutional. It implements article VI, section 11 of the Constitution, which states that “[n]o change in the boundaries of a unit shall affect the tenure in office of a Judge or Associate Judge incumbent at the time of such change.”⁸

2. Does the JDA comply with the Illinois Constitution to the extent it allows someone who was previously elected to the Supreme Court or the Appellate Court to run for retention even if, after the remapping, that Justice does not live in the judicial district to which they were elected?

Section 35 of the JDA also allows Affected Justices who were previously elected to office to run for retention. That section provides in pertinent part that “[n]o Appellate or Supreme Court Judge serving on the effective date of this Act shall be required to change his or her residency in order to … seek retention … in office.”⁹

This provision is constitutional. Justices’ “tenure in office” protected by article VI, section 11 of the Constitution is broader than the ten-year “terms of office” for supreme court and appellate court justices provided by article VI, section 10.¹⁰ Section 11 is the only provision in the Constitution that uses the word “tenure.” Under basic principles of constitutional interpretation, that word should be given a different meaning than “term.”¹¹ “Term” means the length of service authorized by a single election or appointment to office.¹² We believe that “tenure” should be construed to embrace the entire duration of a justice’s service in office, which can potentially aggregate periods associated with an initial appointment, subsequent election, and later retention.

In addition, allowing Affected Justices to run for retention is consistent with other provisions in the Constitution that protect judges against legislative interference. Foremost among those are provisions allowing incumbent judges to seek retention even if the number of Appellate or Circuit Judges is reduced,¹³ and preventing judges’ salaries from being diminished during their terms of office.¹⁴

3. What options does the JDA give Affected Justices with respect to the judicial district in which they may run for retention, and are those options constitutional?

Section 35 of the JDA gives an Affected Justice “the right to seek retention in the district the Judge was elected from or seek retention in the district created by this Act.”¹⁵ Each of the two options contained in this provision is susceptible to different meanings, as follows:

• “[T]he judicial district the judge was elected from” could mean either (1) the same judicial district to which the judge was previously elected, but as reconfigured by the JDA, or (2) the same judicial district to which the judge was previously elected, as it was configured at the time of the judge’s election. (We will call these Options 1 and 2, respectively.)
• “[T]he district created by this Act” could mean either (3) the same judicial district to which the judge was previously elected, but as reconfigured by the JDA, or (4) the judicial district in which the judge resides after the reconfiguration by the JDA. (We will call these Options 3 and 4, respectively, although Options 1 and 3 are the same.)

The one thing that we can conclude with a high degree of confidence is that the two options—“the district the Judge was elected from” and “the district created by this Act”—must mean different things. Basic principles of statutory interpretation disfavor a construction that would render either provision superfluous.¹⁶ Because Options 1 and 3 are the same, we can rule out that possible combination. That means the correct interpretation must be either (i) Options 1 and 4, (ii) Options 2 and 3, or (iii) Options 2 and 4.

Guidance is provided by Section 5 of the JDA, which is entitled “Legislative intent.” Section 5 states in pertinent part that “[i]ncumbent judges have the right to run for retention in the counties comprising the District that elected the judge, or in the counties comprising the new District where the judge resides, as the judge may elect.”¹⁷ This provision is also ambiguous. Are “the counties comprising the District that elected the judge” the counties that comprised that district when the judge was elected, or the counties that comprise that district as it was reconfigured by the JDA?

The description of the second retention alternative contained in Section 5—“the new District where the judge resides”—is more straightforward.¹⁸ It purports to allow an Affected Justice who was elected to one judicial district to seek retention by voters in another judicial district, i.e., the district, as reconfigured by the JDA, in which the Affected Justice resides (i.e., Option 4).

The use of the term “new District” in this alternative also implies that the first alternative, which does not use that term, refers to the district at the time the Affected Justice was elected. In other words, this suggests that “the counties comprising the District that elected the judge” means the counties that comprised that district when the judge was elected (i.e., Option 2).

The conclusion that the retention provision in Section 35 was intended to refer to what we have termed Options 2 and 4 is problematic, however, because Option 4 may be of questionable constitutionality as applied to Affected Justices. There are two possible interpretations of Option 4. The first is that it purports to allow an Affected Justice to run for retention to a judicial district to which the Justice was not elected, i.e., the new, post-redistricting judicial district in which the Justice resides. Under this interpretation, an Affected Justice who was previously elected to office and served in one judicial district would be retained by the voters, and would serve, in a different, new judicial district. (We will call this interpretation “Option 4a.”)

The second possibility is that Option 4 purports to allow an Affected Justice to run for retention in a judicial district to which the Justice was not elected (i.e., the Justice’s retention would be decided by voters in the new, post-redistricting judicial district in which the Justice resides), but would continue to serve in the judicial district to which they were previously elected. (We will call this interpretation “Option 4b.”) As we will see, Option 4b is more likely to be constitutional than Option 4a. This favors interpreting the JDA to include Option 4b, as courts prefer reasonable interpretations of statutory language that would result in a statute being constitutional.¹⁹

Article VI, section 12(d) of the Constitution allows “a Supreme, Appellate or Circuit Judge who has been elected to that office [to] file in the office of the Secretary of State a declaration of candidacy to succeed himself.”²⁰ The threshold question is the nature of the “office” to which a supreme court or appellate court justice is elected. Is their office simply “supreme court justice” or “appellate court justice,” or is it supreme court justice or appellate court justice “for the [Ordinal Number] Judicial District?”

As with most of the issues discussed in this article, case law and other authorities provide little guidance. But we believe the Constitution’s provision for three supreme court justices from the first district and one Justice from each of the other four judicial districts suggests that the judicial office held by a member of the Supreme Court pertains to a specific judicial district.²¹ The same constitutional provision requires appellate court justices to be elected to specific judicial districts. Moreover, an appellate justice elected to serve in a particular judicial district would be required to serve in that district unless they were reassigned by the Supreme Court pursuant to its plenary authority over the operation of the courts.²² Finally, we give some weight to the fact that the oath of office administered to judges, as well as the certificates issued by the Secretary of State to elected judges, identify the particular judicial district or judicial circuit in which the judge serves.²³

Because (1) judicial retention involves a judge succeeding themself to the same office to which they were previously elected, (2) Supreme Court and Appellate Court Justices hold offices pertaining to a specific judicial district, and (3) Option 4a would purport to allow a Justice who was elected to one judicial district to be retained as a Justice in another judicial district—in other words, the Justice would be retained to a different office than that to which they were elected—we believe Option 4a would violate the Illinois Constitution as applied to Affected Justices.²⁴

Option 4b stands a better chance of being constitutional. Under that interpretation of the JDA, Affected Justices could run for retention in the new judicial district in which they reside post-redistricting, but they would be retained to the judicial district that previously elected them, thereby succeeding themselves in office.²⁵ In other words, a Justice could run for retention to district X, but the voters of district Y (which is where the Justice now lives) would decide whether to retain the Justice. Although this interpretation is consistent with the understanding of retention as involving a judge succeeding himself or herself in office, it entails voters from one judicial district deciding whether to retain a Justice who serves in another judicial district. While unusual, this interpretation does not appear to conflict with any provision in either the Illinois Constitution or the United States Constitution.

There is historical evidence suggesting that the Illinois Constitution does not flatly prohibit a Justice from holding an office in a judicial district in which the Justice does not reside following redistricting. Article VI of the 1970 Constitution was based on the Judicial Article to the 1870 Constitution that was adopted in 1964.²⁶ The 1964 Judicial Article had transition provisions that allowed the incumbent supreme court justices to remain in office.²⁷ Justice Walter V. Schaefer was designated a Justice from the newly created First Judicial District, which was limited to Cook County, even though he resided in Lake County.²⁸ Justice Schaefer had previously been elected to a judicial district that included Cook and Lake Counties. He subsequently ran for retention to his office under the 1964 Judicial Article—i.e., supreme court justice for the First Judicial District—even though he continued to reside in Lake County.²⁹ This history involving Justice Schaefer suggests that in a transition situation following judicial redistricting, the 1970 Constitution likewise permits an incumbent Justice to seek retention to an office pertaining to a judicial district in which the Justice no longer resides.³⁰

This conclusion is bolstered by our previously discussed conclusions that a Justice’s “office” includes the judicial district to which they were elected, and that the provision in article VI, section 11 of the Illinois Constitution protecting judges’ “tenure in office” applies to judges’ retention, and not just to their ability to serve out their current term.³¹ The tenure provision carves out an exception to that section’s general rule that a judge must be “a resident of the unit which selects him.”³² The tenure provision must have been intended to apply to Affected Justices. It would be superfluous if it only applied to judges who, post-redistricting, continue to reside in the judicial district or judicial circuit to which they had previously been elected, as those judges would satisfy the normal residency requirement.³³

The primary federal constitutional challenge to Option 4b would rely on the disconnect between the people voting for the Justice’s retention and the people whom the Justice would be “representing.” However, judges are not representatives of constituents in the same way as members of the legislative or executive branches.³⁴ Moreover, some voters in the judicial district in which the Affected Justice would continue to serve post-retention did have an opportunity to vote for or against the Justice when he or she was elected. Finally, the one-person, one-vote principle applicable to legislative and executive offices does not apply to the election of judges.³⁵  For each of these reasons, we do not believe that Option 4b violates the United States Constitution.

Conclusions & Recommendations

The JDA is constitutional to the extent it allows supreme or appellate court justices who were elected or appointed to their positions to serve the balance of their term of office. It is also constitutional to the extent it allows an elected Justice to run for retention even after being mapped out of their district.

The most problematic aspects of the JDA concern the judicial districts in which an Affected Justice can seek retention. We believe it would normally be prudent for an Affected Justice to choose to run in the same judicial district to which they were elected, as that district was configured when the Justice was elected. Choosing to run in the new judicial district in which they reside, but to which they were not previously elected, would run the risk of inviting a legal challenge. Any such challenge would probably fail, at least as long as the election officials interpret that aspect of the JDA to involve what we have called “Option 4b,” which entails an Affected Justice running for retention to the same judicial district in which they were previously elected, but with the Justice’s retention being decided by voters in the new judicial district, following redistricting, in which the Justice resides. But unless there is a compelling political reason to choose Option 4b, an Affected Justice would be well advised to avoid the heightened legal risk associated with that option.

Although we have devoted most of this article to untangling the options available to Affected Justices who wish to seek retention, incumbent Justices who continue to reside in the judicial district to which they were previously elected also have a choice: they can either run in the judicial district as it was configured when they were elected or as it exists after redistricting. While we believe both options are constitutional, absent political considerations we would counsel incumbents to choose to run in the new judicial district. That avoids any potential issue concerning a discrepancy between the geographic area served by the Justice and the area from which voters can cast ballots regarding the Justice’s retention.

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Steven F. Pflaum is the co-chair of the Litigation Department of Neal, Gerber & Eisenberg LLP in Chicago. Mr. Pflaum is also the chair of the Illinois Judicial Ethics Committee, a past President of the Appellate Lawyers Association, and a former outside General Counsel of The Chicago Bar Association. Andrew T. Hamilton is in his third year at the University of Illinois College of Law. He will be joining Neal Gerber as an associate following graduation. The authors wish to thank the members of the Illinois Judicial Ethics Committee and Professor Ann M. Lousin of the University of Illinois Chicago School of Law for their valuable comments regarding a draft of this article.

1. P.A. 102-11 (the “JDA”), § 5, quoting Ill. Const. art. VI, § 2.