2018-01: Judge who is not a candidate for elective judicial office serving on political organization’s candidate slating advisory committee

ILLINOIS JUDICIAL ETHICS COMMITTEE

Opinion No. 2018-01
March 9, 2018

Topics: Judge who is not a candidate for elective judicial office serving on political organization’s candidate slating advisory committee.  Judge who is not a candidate for public office signing or circulating nominating petitions for prospective candidates for public office

Digest:  A judge may not serve on a political organization’s candidate slating advisory committee.  A judge may sign a prospective candidate’s nominating petitions but may not circulate them.

References:   Illinois Supreme Court Rules 67, 67A(1)(b), and 67C;
                        IJEC Opinion Nos. 1996-14, 1996-15, 1996-16, 1998-02, and 1998-15;
                        Arizona Judicial Ethics Advisory Committee Opinion No. 03-05;
                        Wisconsin Judicial Ethics Opinion No. 2000-02;
                        New Mexico Judicial Advisory Opinion No. 1996-01;
                        Ohio Judicial Ethics Opinion No. 92-11;
                        New York Judicial Ethics Opinion Nos. 89-89, 98-99, and 09-148;
                        Florida Judicial Ethics Advisory Committee Opinion No. 92-32;
                        Massachusetts Committee on Judicial Ethics Opinion No. 99-13;
                        Pennsylvania Judicial Ethics Committee Opinion 2000-1;
                        Connecticut Committee on Judicial Ethics Opinion 2013-36;
                        Idaho Judicial Council, FAQ (2017);
                        In re Raab, 100 N.Y.2d 305 (2003);
                        Merriam-Webster.com (2017).
 
FACTS

Public Office Holder, a member of political party M has formed an advisory committee to assist in evaluating judicial candidates for possible party M slating in an upcoming election.  Judge A, a sitting judge who is not currently a candidate for public office, serves on this slating advisory committee.  During Judge A’s service on the slating advisory committee, the judge reviews questionnaire responses of judicial candidates seeking to be slated, is present during the slating advisory committee’s candidate interviews, and questions candidates.  Judge A also deliberates with other committee members and shares thoughts and recommendations about the judicial candidates with the committee and the Public Office Holder. 

Unrelated to these facts, a judge who is not a candidate for public office has been asked to sign and circulate nominating petitions for a prospective candidate.   

QUESTIONS PRESENTED

1.         Does Judge A’s participation on a slating advisory committee violate the Code of Judicial Conduct?

2.         May a judge who is not a candidate for public office sign a prospective candidate’s nominating petition?

3.         May a judge who is not a candidate for public office circulate a prospective candidate’s nominating petition?

OPINION

Question 1:  Judge’s Service on Slating Advisory Committee.

A.  Political Activity 

Slating is a process where a political organization, or one of its constituent organizations, evaluates candidates for elected office to determine who are presented to the public as having the slating entity’s support.  The slating organization expressly or impliedly recommends that its members, and like-minded individuals, vote for the slated candidates.

Illinois Supreme Court Rule 67C states, with certain exceptions not relevant here, that “[a] judge shall not engage in any political activity.”  The Code of Judicial Conduct does not define “political activity.”  However, the Committee believes that, at a minimum, a political organization’s effort intended to further the election or appointment of particular candidates for office constitutes “political activity.”  (The Committee recognizes that “political activity” can include activities beyond those which are designed simply to further the election or appointment of candidates to office, and cautions that this opinion is not meant to analyze activities beyond the facts presented by this inquiry.)

The slating process is a political activity because its purpose is to further the election of particular candidates to office.  As a political activity, Judge A’s participation in the slating advisory committee is prohibited by Rule 67C.

The prohibition on participating on a slating advisory committee is supported by prior IJEC opinions and other authority.  Citing the prohibition against engaging in political activity contained in Supreme Court Rule 67, IJEC Opinion 1996-14 concluded that a judge may not serve on an alderman’s advisory committee on domestic violence issues.  Accord, In re Raab, 100 N.Y.2d 305 (2003)(judge engaged in prohibited political activity, in part, by participating in political party candidate screening process). 

B.         Endorsement

Rule 67A(1)(b) prohibits a judge from publically endorsing or publically opposing another candidate for public office.  To endorse means to “approve openly; to express support or approval of publicly and definitely.” “Endorse” Merriam-Webster.com 2017 www.merriam-webster.com (September 18, 2017).  The Committee has previously found that candidate evaluations, ratings, or recommendations constitute endorsements.  IJEC Opinion 1998-06 (In concluding that a non-candidate judge may not write a “letter to the editor” of a newspaper stating that a judicial candidate was qualified, the opinion noted that “a positive evaluation or rating is simply an endorsement”); IJEC Opinion 1996-15 (In analyzing a non-candidate judge’s participation in a civic organization’s judicial evaluation committee, the opinion found that the committee’s “recommended” rating was, in effect, an endorsement.[1]). 

The slating process entails both an evaluation of candidates that culminates in the slating organization’s statement of support for the selected candidates, as well as an express or implied recommendation by the slating organization to its members and like-minded individuals to support and vote for the slated candidates.  Consistent with this analysis, IJEC Opinion 1996-15 opined that a judge’s participation on a civic organization’s judicial evaluation committee involves the rendering of prohibited endorsements.   

Finally, the fact that the endorsement is from the advisory committee, and not an individual judge, does not insulate the judge from violating the Rule.  See IJEC Opinion 1996-15 (“A judge simply should not be permitted to do indirectly through a committee what the judge cannot do directly.”).  See also IJEC Opinion 1998-15 (prohibiting a judge’s participation on a political action committee that publically endorses candidates). Accordingly, Judge A’s service on Public Office Holder’s slating advisory committee entails the judge’s endorsement of candidates in violation of Rule 67(A)(1)(b). 

Question 2.  Signing Nominating Petitions.

In IJEC Opinion 1998-02, the Committee concluded that it was not a violation of the Judicial Code for a judge to sign or circulate nominating petitions of another judicial candidate when the judge was also a candidate in the same election.  The opinion presented the issue as a question of whether the signing or circulating a nominating petition constituted a prohibited endorsement under Rule 67A(1)(b). The propriety of these activities when a judge is not a candidate was not discussed. 

With respect to non-candidate judges, the question presented requires consideration of two provisions of the Judicial Code: Rule 67B, which generally prohibits a non-candidate judge from engaging in “political activity;” and Rule 67A(1)(b), which explicitly prohibits a non-candidate judge from “publicly endors[ing]” a candidate for public office.

As noted above in the context of serving on a political entity’s slating committee, an endorsement involves public approval and support for a particular candidate.  The prohibition on endorsements is motivated by the State’s interest in protecting the integrity of the judiciary and maintaining the public’s confidence in it.  The drafters of the Judicial Code have determined that a judge’s public endorsement of a candidate reasonably may call into question, at least in the eyes of the public, whether a judge can act without bias toward, or influenced by, those whom the judge has endorsed should they (or the interests they represent) appear before the judge in a legal proceeding. 

To answer the question before the Committee, it is important to look at the purpose and substance of a nominating petition.  Under the Illinois Election Code, for a political party to place the names of its candidates on a ballot in a primary election, the prospective candidates must file nominating petitions with a certain number of signatures with the State Board of Elections.  10 ILCS 5/7-10.  Under the Election Code, individuals signing a nominating petition need represent only that they are registered voters eligible to vote in the relevant election and are affiliated with the prospective candidate’s political party.   Signers may not sign petitions from multiple political parties. A nominating petition is a public document.  

The Committee believes signing a nominating petition in the form currently required by the Election Code does not constitute an endorsement under Rule 67A(1)(b).  First, a nominating petition does not reflect, or require a signer to make, any statement of support or approval of the prospective candidate.  The form itself includes no statement of candidate approval, support, or endorsement.  If it did, our opinion might be different.  See Wisconsin Judicial Conduct Advisory Committee Opinion 00-2 (“If the language on the petition departs from the requirements of the statute to a degree that an elector signing it indicates support for a candidate, the judge should not sign the petition.”).  While signing a nominating petition does carry with it a statement of political party affiliation, expressions of party affiliation are allowed under the Judicial Code.  67B(1)(a)(ii).   

Second, the Committee views signing a nominating petition as merely a preliminary step to ensure prospective candidates’ access to the ballot.  As conventionally understood in Illinois, signing a prospective candidate’s nominating petition does not carry with it any indicia of support, approval, or endorsement or even an obligation to vote in an election.  Voters may sign petitions of more than one candidate for the same office.  Even when only one candidate’s petition is signed, the signer may or may not vote for that candidate in the election.  We believe it is not objectively reasonable to speculate that the signing of a petition is an endorsement of the candidate as opposed to a  statement of support for the democratic electoral process.  

Also note that Comments to Rule 67A(1) explicitly provide that a non-candidate judge “retains the right to participate in the political process as a voter.”  The petition nomination process merely affords ballot access for a prospective candidate.  It would diminish a judge’s right to participate as a voter if he or she were unable to support placement of a candidate’s name on the ballot.

Finally, the Committee believes it would be anomalous to conclude that a non-candidate judge’s signature on a nominating petition would constitute a prohibited “endorsement” of a candidate.  Note that Rule 67B explicitly allows a non-candidate judge to contribute money to a candidate, or to pay for and attend a fundraising event.  It would be difficult to find a cogent rationale to support the conclusion that such public acts would not constitute a prohibited “endorsement,” but that the rarely publicized act of signing a nominating petition would.  We do not believe thatthe act of signing of a nominating petition,  in and of itself raises a reasonable perception of judicial bias.   Whether the act of signing a nominating petition could be argued as some indicia of bias in specific cases would be highly dependent upon the facts.   

The Committee’s conclusion is consistent with judicial ethics opinions from several other States.  Arizona Judicial Ethics Advisory Committee Opinion 03-05; Wisconsin Opinion 00-2; New Mexico Judicial Advisory Opinion 96-01; Ohio Opinion 92-11; and New York Opinion 89-89.  Other States prohibit a judge from signing a nominating petition, but the Committee finds their rationale unpersuasive.  Florida Judicial Ethics Advisory Committee, Opinion 92-32; Massachusetts Committee on Judicial Ethics Opinion 99-13; and Pennsylvania Judicial Ethics Committee Opinion 2000-1 (acknowledging that only a “bare majority” of the Committee believe signing a nominating petition is improper).  At least one jurisdiction prohibiting judges from signing nominating petitions based its conclusion on statutory requirements that specifically require signers to acknowledge support for the particular prospective candidate.  Connecticut Committee on Judicial Ethics Opinion 2013-36.  As noted, Illinois’ statutory requirements do not contain a similar requirement.     

Notwithstanding the Committee’s view that it is not a violation of the Judicial Code for a judge to sign a nominating petition, the Committee notes an important caveat.  State law or municipal regulation may prohibit government employees, including judges, from signing or circulating nominating petitions on public property, such as a courthouse or other government building.

Question 3.  Circulating Nominating Petitions

As referenced, the Committee concluded in IJEC Opinion 1998-02 that circulating nominating petitions of another judicial candidate when the judge was also a candidate in the same election was not a violation of the Code.  The question here is whether a judge may circulate a prospective candidate’s nominating petitions when the judge is not also a candidate.  The Committee concludes that a judge may not.

Unlike signing a prospective candidate’s petition to gain access to the election process, actively soliciting signatures on behalf of a particular candidate implies a degree of support, commitment to, and endorsement of that candidate.  As such, it violates Rule 67A(1)(b).  In addition, it appears that no exception applies that would take this conduct out of the prohibition on engaging in political activity under Rule 67C. 

Other states’ judicial ethics opinions almost unanimously support the Committee’s view that circulating a prospective candidates nominating petitions is improper.   Arizona Judicial Ethics Advisory Committee Opinion 03-05 (circulating a prospective candidates nominating petition is tantamount to a public endorsement, active participating in a political campaign, and may give rise to a suspicion of political bias or impropriety); New York Judicial Ethics Opinion 09-148 (“circulating the nominating petition of another candidate is tantamount to an endorsement of that person and may be construed as prohibited political activity.”); New York Judicial Ethics Opinion 98-99.  See also, Idaho Judicial Council, Elections: Frequently Asked Questions, Question 7, www.judicialcouncil.idaho.gov (last visited October 25, 2017)(Circulating other candidate’s nominating petition for public office is a public endorsement.)  Only New Mexico appears to have issued an opinion that would permit judges to circulate nominating petitions for another candidate.  New Mexico Advisory Committee on the Code of Judicial Conduct Opinion 96-01.  The rationale for that opinion was that there was no language in its Judicial Conduct Code specifically prohibiting the activity.  Although Illinois’ Code also does not contain specific language, the Committee believes that the prohibition on circulating nominating petitions is adequately supported by the prohibitions against endorsements and political activity.  



[1] Whether it is appropriate for a judge to serve on a bar association judicial evaluation committee that ultimately issues recommendations on judicial candidates, as opposed to a civic organization, is not a question before the Committee nor addressed in this opinion.