Opinion No. 94-5

March 22, 1994

TOPIC: Whether a judge or a judge who is a candidate for a higher judicial office can publish his or her views regarding gun control.

DIGEST: The Code of Judicial Conduct would not prevent a judge or a candidate for judge from publicly expressing his or her opinion on a topic that would not threaten to compromise a judge's impartiality.

REFERENCES: Illinois Supreme Court Rule 62 of the Code of Judicial Conduct, Canon 2 (145 Ill.2d R. 62); Illinois Supreme Court Rule 63A(6) of the Code of Judicial Conduct, Canon 3 (145 Ill.2d R. 63); Illinois Supreme Court Rule 64A of the Code of Judicial Conduct, Canon 4 (145 Ill.2d R. 64); Illinois Supreme Court Rule 67 of the Code of Judicial Conduct, Canon 7 (145 Ill.2d R. 67); Illinois Supreme Court Rule 67A(3)(d)(i) of the Code of Judicial Conduct, Canon 7 (145 Ill.2d R. 67); Buckley v. Illinois Judicial Inquiry Board, 997 F.2d 224 (7th Cir. 1993).

FACTS

A judge seeks to publish in a local newspaper an essay regarding crime and the gun problem. The essay strongly advocates stricter gun control measures but also reminds the reader that as a member of the judiciary the author is committed to remaining impartial with regard to any issues coming before him or her as a judge. The judge is currently a candidate for a higher judicial office.

QUESTIONS

1. Can a judge make a public statement expressing his or her views on gun control?

2. Can a judge who is a candidate for higher judicial office make a public statement expressing his or her views on gun control?

OPINION

Question #1

The Code of Judicial Conduct as adopted by the Illinois Supreme Court curtails the political activities of judges. The main concern of the Code is that judges should not damage the public confidence in the impartiality of the judiciary. Illinois Supreme Court Rule 62. Therefore, judges are directed not to comment on any "pending or impending proceeding in any court". Illinois Supreme Court Rule 63A(6). The Code, however, allows judges to engage in activities "concerning the law, the legal system, and the administration of justice" provided these do not interfere with the judge's ability to impartially decide any issue that may come before him or her. Illinois Supreme Court Rule 64A; Illinois Supreme Court Rule 67(C).

The issue of gun control is a general topic "concerning the law, the legal system, and the administration of justice." Commenting upon gun control, therefore, would not compromise a judge's ability to be impartial in any case before him or her. Although a judge may have to hear specific cases dealing with criminal acts involving guns, the issues to be resolved would most likely be much more specific than the more general issue of society's tolerance of guns. Additionally, because the article here at issue contains a strong statement of the judge's commitment to impartiality, the public's confidence in the judiciary is not likely to be put in jeopardy. The Code of Judicial Conduct, therefore, would not prevent a judge from publicly stating his or her views on gun control.

Question #2

The speech of candidates for state judicial office, including incumbent judges, is regulated by the recently amended Supreme Court Rule 67. The Seventh Circuit recently declared the former Rule 67 unconstitutional in Buckley v. Illinois Judicial Inquiry Board, 997 F.2d 224 (1993) (finding the prohibition against a judicial candidate's "announc(ing) his views on disputed legal or political issues" overinclusive). The Seventh Circuit in Buckley recognized that the state did have an interest in curtailing the speech of judicial candidates; this interest derives from the concern that "judges should decide cases in accordance with the law rather than with any express or implied commitments that they may have made to their campaign supporters or to others." Id. The court, however, found that the former rule went too far in that it prevented speech that could not reasonably compromise a judge's impartiality; the Seventh Circuit cited such issues as "substantive due process, economic rights, search and seizure, the war on drugs, the use of excessive force by police, (and) the conditions of prisons", id., as examples of topics which a judicial candidate might discuss without threatening his or her ability to impartially decide cases. The amended and broadened Rule 67 resulting from Buckley, therefore, simply prohibits judicial candidates from making "statements that commit or appear to commit the candidate with respect to cases, controversies or issues within cases that are likely to come before the Court." Illinois Supreme Court Rule 67A(3)(d)(i).

The issue of gun control certainly could fit into the Seventh Circuit's list of discussable topics. As mentioned above, gun control is a general issue of public concern that touches upon the law, the legal system, and the administration of justice; it is not, however, the type of issue which would commit a judge to decide a case one way or another simply because he or she had expressed an opinion on the issue. Such a statement, therefore, would not violate the new Supreme Court Rule 67.