Opinion No. 93-11

November 17, 1993

TOPIC: Judge's duty to disqualify self in proceedings

involving political campaign contributors.

DIGEST: A judge is not obliged to disqualify himself or herself from a proceeding because a lawyer or a party was a campaign contributor. A judge cannot prevent a lawyer from obtaining a list of contributors to the judge's recent election campaign, together with the amounts contributed.

REFERENCES: Illinois Supreme Court Rule 62 of the Code of Judicial Conduct, Canon 2 (145 Ill.2d R.62); Illinois Supreme Court Rule 63C(1) of the Code of Judicial Conduct, Canon 3 (145 Ill.2d R.63); Illinois Supreme Court Rule 67B(2) of the Code of Judicial Conduct, Canon 7 (145 Ill.2d R.67); Committee Commentary to Illinois Supreme Court Rule 67, Canon 7 (145 Ill.2d R.67); 10 ILCS 6/9-17 (Election Code); ISBA Opinion No. 866 (1984); Gluth Brothers Construction, Inc. v. Union National Bank, 192 Ill.App.3d 649, 548 N.E.2d 1364 (2d Dist. 1989); People v. McClain, 226 Ill.App.3d 892, 589 N.E.2d 1116 (2d Dist. 1992).

FACTS:

A rural county judge who had been elected about a year ago has received notice from the State Board of Elections that a local lawyer, who had worked with the judge's opponent, has requested from the Board a list of the amounts and names of those who had contributed to the judge's campaign. The lawyer indicates that he wants the information in order to know when to ask the judge to disqualify himself. The judge would like to prevent the lawyer from getting the campaign contribution information. The judge doesn't really know who the individual contributors to his campaign were, except for a few who walked in with cash in hand saying they wanted to make a contribution and were directed to the judge's finance committee. The judge is further concerned about whether, in the case of a relatively large campaign contribution of which he might be unaware, he could nonetheless be accused of an ethics violation in not disqualifying himself.

QUESTIONS

1. Can a judge prevent a lawyer from getting access to the names of campaign contributors and the amounts contributed?

2. Is a judge required to disqualify himself or herself in proceedings wherein campaign contributors appear as parties and/or lawyers?

OPINIONS

Question 1

Article 9 of the Illinois Election Code requires the treasurers of state and local political committees to disclose campaign contributions and expenditures in reports to the State Board of Elections and to local county clerks. Section 9-17 of the Code provides that all statements and reports filed with the Board or the local county clerk shall be available to examination and copying by the public. The names and addresses of persons contributing in excess of $150 are to be disclosed, together with the amounts contributed. A judge, therefore, bound by Rule 62A "to respect and comply with the law," cannot prevent a lawyer from getting such information.

Question 2

A judge, however, is not affirmatively obliged to disqualify himself or herself under Rule 63C(1) merely because a lawyer or party appearing before the judge was a campaign contributor. Rule 63C(1) provides: "A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to...(specific instances)." Rule 67B(2) prescribes that judicial candidates "shall not personally solicit or accept campaign contributions." But campaign "committees are not prohibited from soliciting and accepting reasonable campaign contributions and public support from lawyers." The Committee Commentary to Rule 67 states: "Though not prohibited, campaign contributions of which a judge has knowledge, made by lawyers or others who appear from the judge, may be relevant to disqualification under subsection C of Canon 3."

Nothing in Rule 67B(2), which authorizes campaign contributions to judicial candidates, requires judges to know who their contributors are. But as noted above in Question 1, the State Election Code, makes such information available to the public regarding contributions in excess of $150. Such a public record places judges and their campaign contributors under public scrutiny, thus providing some assurance of judicial impartiality. And with such information available to the public, it would be desirable for judges to know their contributors. Yet a judge, having knowledge that persons appearing before him or her have been or are campaign contributors, is not explicitly mandated by any rule of the Illinois Code of Judicial Conduct to disclose this information to parties and/or lawyers in a proceeding.

The Committee on Professional Ethics of the ISBA in Opinion No. 866 (1984) has opined that lawyers who contribute to, or otherwise participate (by serving on election committees) in, judicial election campaigns are not thereby precluded from appearing before judges whose campaigns they've assisted. Nor would such lawyers be obliged to disclose such information either to their clients or to opposing counsel.

In the Gluth case, 192 Ill.App.3d 649, the Illinois Appellate Court (2d Dist.) determined that a party had not been deprived of a fair and impartial trial by a trial judge because of an appearance of impropriety, in circumstances where counsel for the opposing party had six years earlier served as the campaign manager of the judge even though the judge had not disclosed that fact. The court noted that campaign documents on that fact were a matter of public record and that there was no evidence of an ongoing or current relationship between the judge and opposing counsel. In the McLain case, 226 Ill.App.3d 892, the Illinois Appellate Court (2d Dist.), concluded that a trial judge was not required to disqualify himself merely because the judge and the State's Attorney were neighbors, the judge's wife was godmother of one of the State's Attorney's children, and the State's Attorney had been the chair of the judge's election campaign, especially in view of the fact that the State's Attorney had not personally prosecuted the defendant for murder.