Opinion No. 97-2

January 13, 1997

TOPIC: Disciplinary action against judge on the basis of (1) testimony given by the judge to a grand jury under a grant of immunity and (2) alleged wrongdoing that occurred before the judge assumed the bench.

DIGEST: Testimony provided by a judge to a grand jury under a grant of immunity may be used against the judge in subsequent judicial discipline proceedings. An early Courts Commission decision holds that it lacks jurisdiction to discipline a judge for misconduct that occurred before the judge assumed the bench.

REFERENCES: U.S. Const. amend. V; 18 U.S.C. 6001-6003; Murphy v. Waterfront Comm'n, 378 U.S. 52 (1964); Kastigar v. United States, 406 U.S. 441 (1972); Napolitano v. Ward, 457 F.2d 279 (7th Cir.), cert. denied, 409 U.S. 1037 (1972); In re Daley, 549 F.2d 469 (7th Cir.), cert. denied, 434 U.S. 829 (1977); Ill. Const. art. VI, 11, 15(c) and 15(e); Ill. Const. art. XIII, 1; 725 ILCS 5/106-1; Illinois Supreme Court Rules of the Code of Judicial Conduct, Canon 1 (145 Ill.2d R. 61), Canon 2 (145 Ill.2d R. 62), Canon 3 (145 Ill.2d R. 63); In re McGarry, 380 Ill. 359, 44 N.E.2d 7 (1942); In re Schwarz, 51 Ill.2d 334, 282 N.E.2d 689, cert. denied, 409 U.S. 1047 (1972); In re Witt, 145 Ill.2d 380, 583 N.E.2d 526 (1991); In re Kaye, 1 Ill. Cts. Com. 36 (1974); Illinois Judicial Ethics Committee Opinion No. 97-1; In re Ryman, 232 N.W.2d 178 (Mich. 1975); In re Gillard, 271 N.W.2d 785 (Minn. 1978); Sarisohn v. Appellate Div. of Supreme Court, 233 N.E.2d 276 (N.Y. 1967); In re Greenberg, 280 A.2d 370 (Pa. 1971).

FACTS

A judge is subpoenaed to appear before a grand jury. Testifying under a grant of immunity, the judge admits to misconduct that took place before assuming the bench. The misconduct would have violated the Code of Judicial Conduct if it had been committed by a judge.

QUESTIONS

1. Can a judge be disciplined for misconduct revealed when testifying under a grant of immunity?

2. Can a judge be disciplined for acts that occurred before the judge assumed the bench?

OPINIONS

Question 1

In Illinois Judicial Ethics Committee Opinion 97-1, this Committee concluded that a judge would violate the Code of Judicial Conduct by bargaining for immunity in connection with the judge's testimony before a grand jury concerning the performance of the judge's official functions, but that a judge would not violate the Code by accepting an unrequested grant of immunity. This inquiry goes a step further and addresses whether a judge can be disciplined if testimony given under a grant of immunity reveals actions by the judge that violate the Code of Judicial Conduct.

The Committee believes that the answer to this question is "yes." When an individual is compelled to testify under a grant of immunity, the immunity must be at least as broad as the protection afforded by the Fifth Amendment. Murphy v. Waterfront Comm'n, 378 U.S. 52 (1964); Kastigar v. United States, 406 U.S. 441, 449 (1972). The Fifth Amendment does not shield immunized witnesses from "all potential opprobrium, penalties or disabilities which occur as a consequence of the compelled disclosures." In re Daley, 549 F.2d 469, 474 (7th Cir.), cert. denied, 434 U.S. 829 (1977). However, self-incriminating testimony elicited under a grant of immunity cannot be the basis for a subsequent criminal prosecution. Murphy, supra, 378 U.S. at 78.

Does the Fifth Amendment's protection against the use of immunized self-incriminating testimony in criminal prosecutions extend to the use of such testimony in judicial disciplinary actions? The Seventh Circuit has held that it does not. In Napolitano v. Ward, 457 F.2d 279, 283 (7th Cir.), cert. denied, 409 U.S. 1037 (1972), the court upheld the use of a judge's immunized grand jury testimony in subsequent disciplinary proceedings that resulted in the judge's removal from office:

"[The judge] has suffered no criminal punishment resulting from his immunized testimony nor was the removal herein a penal aspect of criminal proceedings. . . . We hold the procedures by which appellant was removed from the office of Circuit Court Judge of Cook County, Illinois, are in accord with the requirements of the Fifth Amendment." Id. at 284.

In re Schwarz, 51 Ill.2d 334, 282 N.E.2d 689, cert. denied, 409 U.S. 1047 (1972), suggests that the Illinois Supreme Court would reach the same result that the Seventh Circuit did in Napolitano. In Schwarz, the Supreme Court held that the Fifth Amendment did not prevent a lawyer from being disbarred on the basis of immunized testimony that the lawyer gave before a grand jury. Id. at 338, 282 N.E.2d at 691. See also Daley, supra, 549 F.2d at 476-77 ("the Fifth Amendment privilege against self-incrimination does not proscribe the introduction in state bar [lawyer] disciplinary proceedings of testimony compelled under a grant of immunity"). The Committee believes that the rationale for permitting immunized grand jury testimony to be used in lawyer disciplinary proceedings, as articulated in Schwarz and Daley, applies equally to judicial disciplinary proceedings.

The conclusion that the Fifth Amendment permits the use of immunized testimony in judicial disciplinary proceedings does not necessarily mean that the statute upon which a grant of immunity is based permits immunized testimony to be used in that fashion. However, case law indicates that both the Illinois and federal immunity statutes (725 ILCS 5/106-1 and 18 U.S.C. 6001-6003, respectively) limit immunity to subsequent criminal prosecutions. Schwarz, supra, 51 Ill.2d at 337, 282 N.E.2d at 691; Daley, supra, 549 F.2d at 474.1 Accordingly, the Committee believes that acts revealed in the course of a judge's immunized grand jury testimony can be used against the judge in subsequent disciplinary proceedings.

Question 2

In one of its first published decisions, the Illinois Courts Commission held that "the plain language of the [Illinois] Constitution limits the jurisdiction of the Commission and the Judicial Inquiry Board [JIB] to matters that occur while a judge holds judicial office." In re Kaye, 1 Ill. Cts. Com. 36, 53 (1974). Under Kaye, judges may not be disciplined for any actions, including criminal misconduct, that occurred before they assumed the bench.

Among the allegations involved in Kaye were charges that a judge had failed to disclose, in an application for an Associate Judge position before he was appointed to the bench, a prior arrest for disorderly conduct and a prior lawsuit in which the judge-applicant had been a plaintiff. The Courts Commission emphasized that the jurisdiction of the JIB and the Commission was limited by Sections 15(c) and (e), respectively, of Article VI of the Constitution to "willful misconduct in office, persistent failure to perform his duties, or other conduct that is prejudicial to the administration of justice or that brings

the judicial office into disrepute. . . ." The Commission concluded that these provisions did not confer the JIB or the Commission with jurisdiction to investigate or discipline an individual for misconduct committed before becoming a judge:

"Neither in the language of the Constitution, nor in the [Constitutional Convention Judiciary] committee's explanation can we find any grant of authority to the Judicial Inquiry Board to conduct an investigation into matters that took place before a judge assumed judicial office. Nor can we find any constitutional authority conferred upon this Commission to impose sanctions with respect to the conduct of a judge which occurred prior to his assumption of judicial office.

* * *

"Of the standards specified in the Constitution, the only one that could by any possible stretch be thought to apply to conduct before a man becomes a judge is 'conduct that tends to bring the judicial office into disrepute.' Conduct that occurred before a man became a judge may bring the man into disrepute, but it can hardly be said to bring the judicial office into disrepute." Id. at 50, 53-54.

In rejecting the JIB's argument that judges can be disciplined for wrongdoing committed before assuming the bench, the Commission disagreed with the JIB's assertion that "unless the Commission had the authority to impose discipline, there would be no way to get rid of a judge who was convicted of a felony or disbarred for conduct that occurred before he became a judge." Id. at 55. The Commission noted that conviction of a felony or of bribery, perjury, or other "infamous crimes" renders a judge ineligible to hold office pursuant to Section 1 of Article XIII of the Constitution, regardless of whether that misconduct was committed before or after the judge assumed the bench. Similarly, because Section 11 of Article VI requires that a judge be an attorney, disbarment for misconduct committed before becoming a judge would disqualify the judge from continuing to serve in that capacity. Id. at 54-55.2

Contrary to Kaye, courts in various other jurisdictions have concluded that misconduct committed before assuming the bench can constitute a basis for judicial discipline. See, e.g., In re Ryman, 232 N.W.2d 178, 180 (Mich. 1975) ("misconduct, although unrelated to the performance of judicial duties, and even if occurring before the lawyer becomes a judge, may be conduct that is clearly prejudicial to the administration of justice"); In re Gillard, 271 N.W.2d 785 (Minn. 1978) (upholding the removal of a judge for acts of professional misconduct that occurred while he was acting as an attorney); In re Greenberg, 280 A.2d 370 (Pa. 1971) (mail fraud was grounds for removal from the bench even though the fraudulent acts were committed before becoming a judge); Sarisohn v. Appellate Div. of Supreme Court, 233 N.E.2d 276, 281 (N.Y. 1967) (judicial discipline is warranted by misconduct occurring before becoming a judge that would justify debarment from future office or which relates to general character and fitness for office). The Illinois Supreme Court has never addressed whether a judge can be disciplined for misconduct committed before assuming the bench. Nor, in the 20 years since Kaye was decided, has the Courts Commission had occasion to revisit that issue. However, Kaye constitutes the law in Illinois at the present time.

CONCLUSION

Testimony provided by a judge to a grand jury under a grant of immunity may be used against the judge in subsequent judicial discipline proceedings. However, to the extent that the immunized testimony relates to misconduct that occurred before the judge assumed the bench, under current law an Illinois judge cannot be disciplined for violating the Code of Judicial Conduct in connection with that misconduct.