Opinion No. 96-15

July 16, 1996

TOPIC: Judge serving as member of judicial evaluation committee of a civic organization.

DIGEST: A judge may not serve as a member of the judicial evaluation committee of a civic organization.

REFERENCES: Illinois Supreme Court Rule 67A(l)(b) of the Code of Judicial Conduct, Canon 7 (145 111.2d R. 67); Illinois Supreme Court Rule 67B(l)(b)(iv) of the Code of Judicial Conduct, Canon 7 (145 111.2d. 67); Illinois Supreme Court Rule 62A of the Code of Judicial Conduct, Canon 2 (156 111.2d R. 62); Illinois Supreme Court Rule 64A of the Code of Judicial Conduct, Canon 4 (156 111.2d R. 64); Illinois Supreme Court Rule 65B of the Code of Judicial Conduct, Canon 5 (156 111.2d R. 65).

FACTS

A judge was requested by a civic organization to serve on a judicial evaluation committee which will evaluate candidates for judicial office. The judicial evaluation committee will rate each judge running for election or retention as "recommended" or "not recommended". The results of the committee's evaluation will be made public.

QUESTION

May a judge serve as a member of a judicial evaluation committee of a civic organization?

OPINION

Serving on a judicial evaluation committee of the type described in this inquiry would effectively result in a judge publicly endorsing or opposing the candidates rated by the committee. The propriety of a judge publicly endorsing or opposing candidates for public office is governed by Illinois Supreme Court Rule 67. Rule 67A(l)(b) states the general rule as follows:

(1) Except as authorized in subsection[s] B(l)(b)... a judge or candidate for election to judicial office shall not:

(b) publicly endorse or publicly oppose another candidate for public office.

Subsection B(l)(b) of Rule 67 provides an exception to the general rule prohibiting public endorsements:

(1) A judge or candidate may...

(b) when a candidate for public election...

(iv) publicly endorse or publicly oppose other

candidates in a public election in which

the judge or judicial candidate is running.

In other words, Rule 67 provides that a judge may publicly endorse or oppose a candidate for public office only when the judge is a candidate for election or retention. If the judge is a candidate, the judge may endorse or oppose a candidate running in the same election. If the judge is not a candidate, the judge may not publicly endorse or oppose a candidate.

Rule 67 clearly prohibits a judge who is not a candidate from serving on an evaluation committee that would, in effect, endorse or oppose judicial candidates by finding them "recommended" or "not recommended". A judge simply should not be permitted to do indirectly through a committee what the judge cannot do directly.

While under Rule 67 a judge who is a candidate for election or retention may, as an individual, endorse or oppose other candidates in the same election, the Committee does not believe that Rule 67 should be construed to further permit a judicial candidate to serve on a civic organization's judicial evaluation committee.

First, a reading of Rule 67 which would permit service on a judicial evaluation committee is not consistent with the purpose underlying the Rule. Rule 67, unlike the ABA Model Codes of Judicial Conduct of 1972 and 1990, permits Illinois judicial candidates to express public support or opposition for other candidates. This modification of the ABA Model Codes was made in recognition of the simple political fact that candidates in Illinois, even judicial candidates, run with and against other candidates in primary and general elections. This fact of political life necessitates that a judge, in his or her capacity as a candidate, be permitted to publicly support running mates and oppose opponents. This purpose is not furthered by permitting judicial candidates to support or oppose candidates in a capacity other than as a candidate. A judge serving on an evaluation committee is not acting in his or her capacity as a candidate. As a result, Rule 67 does not sanction judicial involvement in a civic organization's evaluation committee.

Second, permitting a judicial candidate to serve as a member of a judicial evaluation committee would compromise other standards of judicial conduct.

Rule 62A requires that a judge "conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." Similarly, Rule 65B permits participation in civic and charitable activities only when the activities "do not reflect adversely upon the judge's impartiality." The public's confidence in the integrity and impartiality of the judiciary is diminished when a judge with a direct and personal stake in the outcome of an election, serves on a committee that purports to be an objective, disinterested evaluator of judicial candidates running in the same election as the judge. The appearance of impropriety is magnified where, as in most cases, the judge works with at least some of the other candidates being evaluated by the committee. A judge who serves on an evaluation committee of a civic organization runs the further risk of being viewed as adopting the philosophical, political, social, or economic positions of the organization. See Opinion JI-65, Committee on Professional and Judicial Ethics (Mich. 1993) (judge should not serve on chamber of commerce candidate screening committee because of the possible appearance of being predisposed in favor of pro-business interests); IJEC Opinion No. 94-7 (judge prohibited from becoming a nominee for an association's award where the award is contingent on the judge's endorsement of legislation advocated by the association). Finally, the public's perception of judicial integrity and impartiality would be adversely affected in the event the judge individually, as a candidate, endorses or opposes a particular candidate while the committee takes the opposite position on the same candidate.

In conclusion, Rule 67 only permits a judicial candidate, in his or her capacity as a candidate, to publicly endorse or oppose other candidates running in the same election. Rule 67 does not authorize a judge to serve as a member of a civic organization's evaluation committee. Permitting a judge to serve as a member of an evaluation committee would adversely affect public confidence in the integrity and impartiality of the judiciary because of the inherent conflicts in simultaneously serving as a candidate and an evaluator of candidates, (Rules 62A and 65B).