Opinion No. 94-17
June 17, 1994
TOPICS: Judicial Speakers Bureau; Judges' Speech Regarding Controversial
DIGEST: Judges may create a Speakers Bureau and inform the public of the
judges' availability to speak on issues regarding the law, the legal system, and the
administration of justice. Judges may speak about law-related issues to groups
that advocate changes in the content or enforcement of laws, and other members
of the public, so long as the judges (1) do not say anything that casts doubt on
their capacity to decide impartially any issue that may come before them, and (2)
comply with the restrictions on political speech contained in Illinois Supreme
Court Rule 67.
REFERENCES: Illinois Supreme Court Rule 64 of the Code of Judicial Conduct,
Canon 4 (145 Ill.2d R. 64); Illinois Supreme Court Rule 66A of the Code of
Judicial Conduct, Canon 6 (145 Ill.2d R. 66); Illinois Supreme Court Rule 67 of
the Code of Judicial Conduct, Canon 7 (145 Ill.2d R. 67); In re Gridley, 417 So.2d
950 (Fla. 1982); In re Nolan, Unreported Order (Ky. Comm'n 1986); Illinois
Judicial Ethics Committee Opinion Nos. 93-4, 94-5, and 94-7.
The judges in a judicial circuit wish to create a Speakers Bureau and inform
service organizations and churches of the judges' availability to present a
court-oriented program. A judge who speaks at such a program may be asked
questions that implicate ethical restrictions on the judge's ability to engage in
certain kinds of speech and political activities.
1. Can the judges create, and publicize the existence of, a Speakers Bureau?
2. Can a judge agree to speak before groups, such as Court Watchers, MADD, or
AAIM, that advocate changes in the content or enforcement of laws?
3. Can a judge comment publicly on any or all of the following
b. The death penalty, including whether it is justified, whether it is an effective
deterrent, and under what circumstances it should be imposed;
c. Other sentencing issues, including the merit and likely consequences of the
proposed "three-time loser" law;
d. The competence, or lack of competence, of lawyers;
e. Programs, activities, and positions of the organized bar;
f. The merit, or lack of merit, of proposed or enacted legislation;
g. Local government issues, such as bond issues and school district tax
h. Policies and practices of government officials with responsibilities
relating to the justice system, such as the State's Attorney, Circuit Court Clerk, or
i. Merit selection of judges;
j. Jail overcrowding; and
k. Plea bargaining?
1. ESTABLISHING AND PUBLISHING THE EXISTENCE OF A
JUDICIAL SPEAKERS BUREAU
Illinois Supreme Court Rule 64 authorizes a judge to "speak, write, lecture,
teach, and participate in other activities concerning the law, the legal system, and
the administration of justice." By organizing and publicizing the existence of a
Judicial Speakers Bureau, judges would be cooperatively undertaking the kind of
law-related activities that Illinois Supreme Court Rule 64 expressly permits them
to do individually. Neither the language of, nor the policy behind, the Code of
Judicial Conduct prohibits that kind of cooperative undertaking.
Although accepting an honorarium for speaking is permitted by Illinois
Supreme Court Rule 66(A), the Committee believes that it would be preferable
(but not mandatory) to decline such remuneration if a speaking engagement is
obtained in response to a direct communication publicizing the existence of the
Speakers Bureau. Accepting an honorarium in response to such publicity may
foster the impression that financial gain, rather than educating the public about the
judicial system, was the principal motivation for the creation of the Speakers
2. SPEAKING BEFORE GROUPS THAT ADVOCATE LEGISLATION
OR LEGAL REFORM
Illinois Supreme Court Rule 64 prohibits a judge from engaging in
law-related activities that "cast doubt on his or her capacity to decide impartially
any issue that may come before him or her." In Opinion No. 93-4, this Committee
concluded that the appearance of impartiality may be jeopardized if a judge is a
speaker and honoree at a dinner hosted by an organization that takes partisan
positions on issues arising in court. See also Illinois Judicial Ethics Committee
("IJEC") Opinion No. 94-7 (judge may not be a nominee for an organization's
award if nominees must agree to support the organization's legislative platform).
Under the facts of this inquiry, however, the judge would not be an honoree
of the organization before which the judge is speaking. Merely addressing an
organization does not carry with it the kind of implicit endorsement of the
organization or its agenda that comes from agreeing to be honored by that
organization. For that reason, the Committee believes that a judge is free to speak
before groups, such as Court Watchers or MADD, that advocate new legislation or
changes in the enforcement of existing laws. A judge should take pains, however,
to ensure that his or her speech does not say anything, in violation of Illinois
Supreme Court Rule 64, that casts doubt upon the judge's impartiality.
3. PERMISSIBILITY OF SPEECH REGARDING PARTICULAR SUBJECTS
The Code of Judicial Conduct contains two restrictions on the content of
judges' speech about law-related matters. The primary restriction, as noted above,
is the admonition in Illinois Supreme Court Rule 64 against judges saying
anything that casts doubt on their capacity to decide impartially any issue that may
come before them. In addition, Illinois Supreme Court Rule 67 restricts political
speech by judges. The following analysis applies these provisions to the particular
law-related topics that are the subject of this inquiry.
Abortion. Judges are free to discuss abortion publicly so long as they do
not cast doubt upon their ability to decide impartially any abortion-related case
that may come before them.
The death penalty. Judges may be asked to speak about a variety of issues
regarding this subject, including whether the death penalty is justified, whether it
is an effective deterrent, and under what circumstances it should be imposed.
Judges are free to address these issues so long as they do not say anything that
casts doubt on their capacity to decide impartially any cases that involve those
issues. Accord, In re Gridley, 417 So.2d 950, 954-55 (Fla. 1982) (judge was not
subject to discipline for expressing opposition to death penalty where he expressly
stated that he would follow the law as written).
Other sentencing issues. The proposed "three-time loser" law is a prime
example of other sentencing issues that judges may be asked to address. Once
again, judges may speak about that issue if they are careful to ensure that they do
not cast doubt on their ability to decide impartially any cases that may involve that
The competence, or lack of competence, of lawyers. This subject is fair
game for judges, particularly if the remarks are limited to lawyers generically.
Unflattering comments about a specific lawyer would be more problematic.
Under certain circumstances, such comments could cast doubt on the speaker's
ability to decide impartially cases involving that lawyer.
Programs, activities, and positions of the organized bar. Judges are
generally free to discuss these subjects. However, Illinois Supreme Court Rule
67(A)(1)(b) prohibits judges from publicly endorsing or opposing a candidate for
public office. (Rule 67B(1)(b)(iv) contains a partial exception to this rule for
judges who are running for office.) While it is permissible to discuss the merits
and shortcomings of bar associations' judicial evaluation procedures, a statement
by a non-candidate judge agreeing or disagreeing with a bar association's rating of
a particular judge would violate Rule 67A(1)(b)'s prohibition against endorsing or
opposing a candidate for public office.
Proposed or enacted legislation. Judges may speak regarding the merits of
proposed or enacted legislation so long as they do not cast doubt on their capacity
to later decide impartially any cases involving that legislation.
Local government issues. Judges may speak publicly about local
government issues, such as bond issues and school district tax referendums, so
long as any such speech is not on behalf of a political organization. See Supreme
Court Rule 67(A)(1)(c). Once again, care must also be taken to ensure that such
speech does not cast doubt on a judge's ability to decide impartially any cases
involving those issues.
Policies and practices of government officials with responsibilities relating
to the justice system. Judges may praise or criticize the performance of
government officials with law-related responsibilities, such as the State's Attorney,
Circuit Court Clerk, or Sheriff. However, if any of those officials are candidates
for office, the prohibition in Illinois Supreme Court Rule 67 against endorsing or
opposing candidates for public office would be applicable. Moreover, particularly
with respect to persons who may appear in court as witnesses or attorneys, judges
must be careful not to say anything that casts doubt on their ability to decide
impartially any cases in which those persons are involved.
Merit selection of judges. Judges may speak freely about the advantages
and disadvantages of merit selection of judges. As stated previously, a
non-candidate judge should refrain from discussing the qualifications of a
particular judicial candidate.
Jail overcrowding. Judges may discuss jail overcrowding issues so long as
they do not say anything that casts doubt on their capacity to impartially decide
issues in criminal cases.
Plea bargaining. Judges may also speak about plea bargaining so long as
they do not say anything that casts doubt on their ability to impartially decide
issues in criminal cases. As illustrated by In re Nolan, Unreported Order (Ky.
Comm'n 1986), while it is permissible for judges to state their views regarding
plea bargaining, they should refrain from suggesting that they would invariably
decline to approve plea bargains. In Nolan, a judge was censured for distributing
campaign literature stating, inter alia, that the judge "does not allow plea
bargaining." In addition to casting doubt on the judge's capacity to decide
impartially whether to accept plea bargains, the judge's statement violated Canon 7
of the Code of Judicial Conduct by appearing to commit the judge with respect to
cases, controversies, or issues that are likely to come before the judge. See Illinois
Supreme Court Rule 67A(3)(d)(i).
NOTE: As with many of the controversial subjects that are the subject of this
inquiry, the Committee believes that it is advisable (but not mandatory) for any
judge who chooses to discuss any of these issues to guard against any violation of
Illinois Supreme Court Rule 67 by stating affirmatively that, regardless of their
personal views, they would follow the law if called upon to decide any of these
controversial issues. Cf. IJEC Opinion No. 94-5 (judge can publish essay
supporting gun control that contains a strong statement of the judge's commitment