Opinion No. 95-5

March 7, 1995

TOPIC: Duty of a judge to disqualify himself or herself when a lawsuit is filed accusing the judge of misconduct or when a complaint is filed against the judge with the Judicial Inquiry Board (JIB).

DIGEST: A judge is not obligated to disqualify himself or herself from a proceeding merely because a party's lawyer has filed a suit against the judge accusing the judge of misconduct or has filed a complaint against the judge with the JIB.

REFERENCES: Illinois Supreme Court Rules 63A(5) and 63C(1)(a) of the Code of Judicial Conduct, Canon 3 (145 Ill.2d R. 63); In re Marriage of Hartian, 222 Ill.App.3d 566, 584 N.E.2d 245 (1st Dist. 1991); Lena v. Commonwealth, 340 N.E.2d 884, 886-87 (Mass. 1976); State v. Smith, 242 N.W.2d 320 (Iowa 1976).

FACTS

Judge hears a case and renders a decision. Later, a participating lawyer files a lawsuit in the U.S. District Court against the judge and others for misconduct. Shortly thereafter, the lawyer moves to reconsider the judge's decision.

QUESTIONS

1. Must the judge disqualify himself or herself from hearing a motion for reconsideration of a case when a participating lawyer has filed a federal lawsuit for misconduct against the judge and others subsequent to the original decision of the case by the judge?

2. Would the result be different if, instead, the complaint about the judge was made to the JIB?

OPINIONS

1

A judge is not required to disqualify himself or herself from a proceeding merely because a participating lawyer has filed a misconduct suit against the judge. Illinois Supreme Court Rule 63C(1) mandates a judge's disqualification from a proceeding only where the judge's impartiality might "reasonably" be questioned. Rule 63C(1)(a) further specifies a mandated disqualification where the judge has a "personal bias or prejudice concerning a party or a party's lawyer."

The judge should first consult his or her own emotions and conscience and pass what has been called an "internal test of freedom" from disabling conflicts. (See Lena v. Commonwealth, 340 N.E.2d 884, 886-87 (Mass. 1976); State v. Smith, 242 N.E.2d 320 (Iowa 1976).) Next, the judge should attempt an objective appraisal of whether the subject matter is a proceeding in which his or her impartiality might reasonably be questioned. In connection therewith, the judge must give consideration to whether the lawyer's lawsuit is a ploy, an act of "judge-shopping".

Ordinarily, any bias or prejudice that is generated in the context of court proceedings will not serve as grounds requiring judicial disqualifications. Mandatory disqualification would usually only be required when the kind of bias or prejudice exhibited by the judge arose out of some extrajudicial source.

Though an easy and "safe" way out might be for the judge to disqualify himself or herself in the circumstances posed here, consideration must be given to the system being served. Another judge might not always be available. Given that there is at issue here a motion for reconsideration, a new judge would not usually have the benefit of all of the nuances of the case. Moreover, Illinois Supreme Court Rule 63A(5) requires that a judge "should dispose promptly of the business of the court".

An analogy might be drawn to a comment a judge makes during proceedings. Such a comment might give the appearance of partiality to the adversely affected party. In fact, the comment might strongly suggest bias and if heard by a jury would be an improper expression of an opinion on the evidence. However, the same comment made outside the presence of the jury might well not require the disqualification of the judge. By analogy, though the lay public might have difficulty accepting that the judge can be fair and render justice even though a "charge" has been brought against him or her, the professionalism of the judge will determine whether he or she can be fair and impartial and render justice first to the parties and secondly to the participating lawyers.

2

A judge would not be mandated to disqualify himself or herself from a proceeding merely because a participating lawyer has lodged a complaint about the judge with the Judicial Inquiry Board (JIB). As noted in the Opinion above, judicial disqualification is mandated only where the judge's impartiality might be reasonably questioned and if in fact the judge were personally biased or prejudiced against a party or the party's lawyer. Mere "allegations" or "charges" of judicial partiality or bias will not suffice to mandate judicial disqualification.

The Illinois Appellate Court has rejected a party's contention that his or her complaint against a trial judge, filed with the Judicial Inquiry Board, was evidence of an extrajudicial source of bias or prejudice and, without more, therefore required judicial disqualification and a change of venue. The Court, in In re marriage of Hartian, 222 Ill.App.3d 566, 584 N.E.2d 245 (1st Dist. 1991), determined that allegedly erroneous findings and ruling by the trial court were not sufficient reasons to establish that the court had a personal bias or prejudice against the complaining party. The Court noted at 584 N.E.2d 247: "To allow a change of venue under these circumstances would create a dangerous precedent whereby those seeking venue changes need only file charges with the Judicial Inquiry Board to achieve that purpose."