Opinion No. 95-1

March 7, 1995

TOPIC: Duty to report judicial misconduct.

DIGEST: A judge who has actual knowledge of another judge's violation of the Code of Judicial Conduct must take or initiate appropriate disciplinary measures.

REFERENCES: Illinois Supreme Court Rule 61 of the Code of Judicial Conduct, Canon 1 (145 Ill.2d R. 61); Illinois Supreme Court Rules 62A and 62B of the Code of Judicial Conduct, Canon 2 (145 Ill.2d R. 62); Illinois Supreme Court Rule 63B(3) of the Code of Judicial Conduct, Canon 3 (145 Ill.2d R. 63); definition of "knowledge" in the Terminology Section, Illinois Code of Judicial Conduct.

SUMMARY: Allegations Contained in a Petition for Substitution of Judges do not constitute "knowledge" on the part of the judge before whom the petition is filed or to whom it is referred. A judge is not required to "take or initiate appropriate disciplinary action" solely on the basis of allegations contained in such a petition.

FACTS

A petition for substitution of judge (SOJ) is filed with Judge A, seeking a substitution away from Judge B on the ground that Judge B is biased and prejudiced against the SOJ petitioner. The petition alleged that Judge B, and Judge B's son, had previously been involved in an incident at the SOJ petitioner's store, in which Judge B had shouted at the SOJ petitioner's security agent. The SOJ petition further alleged that Judge B, identifying himself as a judge, had threatened reprisals against the security agent if the security agent took Judge B's son into custody.

Judge A forwarded the SOJ petition to the chief judge, who accepted the filing and granted the substitution of judges. The chief judge then discussed the allegations with Judge B, who denied all wrongdoing. The chief judge believed Judge B.

QUESTIONS

1. On the basis of the allegations in the SOJ petition, is Judge A required to report Judge B to the chief judge and/or to the Judicial Inquiry Board?

2. Is the chief judge required to report Judge B to the Judicial Inquiry Board?

OPINION

Rule 63B(3)of the Illinois Code of Judicial Conduct requires that a judge "having knowledge of a violation of these canons on the part of a judge...shall take or initiate appropriate disciplinary measures." The Terminology Section of the Code provides that "knowledge" means "actual knowledge of the fact in question. A person's knowledge may be inferred from the circumstances."

In the case at hand, Judge B's misconduct could be regarded as violating several of the provisions of the Code of Judicial Conduct, including Rule 61 (a judge "should...observe high standards of conduct so that the integrity and independence of the judiciary may be preserved"); Rule 62A (a judge "should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary"); or Rule 62B (a judge "should not lend the prestige of his office to advance the private interest of others").

The allegations contained in an SOJ petition, however, do not constitute "actual knowledge of the fact in question," nor do they constitute circumstances from which actual knowledge may be inferred. Accordingly, Judge A is not required to "take or initiate" disciplinary measures with regard to Judge B.

Neither is the chief judge required to take disciplinary action on the basis of the allegations contained in the SOJ petition. Moreover, the chief judge's discussion with Judge B led the chief judge to the conclusion that no misconduct had occurred. Hence, the chief judge had no knowledge of "a violation of (the) canons" and was therefore under no obligation to take or initiate disciplinary measures.

If the chief judge had not believed Judge B, it would be necessary to consider further whether the alleged conduct constituted violations of the Code of Judicial Conduct and, if so, what disciplinary measures would have been "appropriate" under the circumstances.