Opinion No. 01-03

May 1, 2001

Topic: Judge as a guest of honor at a non-fundraising event held by a non-profit organization whose employees regularly testify in adversary proceedings before that judge.

Digest: Judge may not be guest of honor at a non-fundraising event held by a non-profit organization whose employees regularly testify in adversary proceedings before that judge.

References: Illinois Supreme Court Rules 62A and 65B; Illinois Judicial Ethics Committee Opinion Nos. 93-4, 97-17 and 98-5; In re Corboy, 124 Ill.2d 29.

FACTS

A non-profit organization contracts with the Department of Children and Family Services to provide case management Services. The organization wishes to honor a judge, at a non-fundraising event, for the judge’s efforts to protect children. Caseworkers employed by the organization regularly testify in adversary proceedings before that judge.

QUESTION

Can a judge be a guest of honor at a non-fundraising event held by a non-profit organization whose employees regularly testify in adversary proceedings before that judge?

ANALYSIS

Supreme Court Rule 62A requires judges to conduct themselves "at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." (Emphasis added.) Rule 65B restates this admonition in the specific context of a judge’s civic activities as follows: "A judge may participate in civic and charitable activities that do not reflect adversely upon the judge’s impartiality or interfere with the performance of the judge’s judicial duties." (Emphasis added.)

These rules were addressed by the IJEC in Opinion No. 93-4. There, the Committee analyzed (1) whether a judge who presides over Domestic Violence Court could be a speaker or guest of honor at a non-fundraising dinner sponsored by an organization that supplies advocates to the Domestic Violence Court to provide support and information to women who are filing petitions for orders of protection, and (2) whether a judge who presides over criminal cases could be a speaker or guest of honor at a non-fundraising dinner sponsored by the Fraternal Order of Police.

With respect to the battered women’s advocacy group, the Committee opined that the judge should carefully consider whether the image of that group was partisan or service-oriented. The Committee indicated that the judge’s impartiality "may be compromised" if the group is partisan. Similarly, the Committee opined that the appearance of the judge’s impartiality "may be in jeopardy" if the Fraternal Order of Police "is controversial and advocate[s] particular positions on issues coming before judges…."

The issue in the present inquiry is whether accepting an honor from an organization whose employees regularly testify before the judge would reflect adversely upon the judge’s impartiality. As Opinion No. 93-4 indicates, ethical issues regarding the appearance of partiality or impropriety are particularly nettlesome because of the amorphous nature of that standard. Such appearances are often in the eye of the beholder. A cynical or suspicious observer might believe that a judge would be influenced by receiving any kind of benefit, monetary or otherwise, from an organization with an interest in cases before that judge. On the other hand, someone with a more flattering view of the judiciary or of human nature might believe that, as a practical matter, a judge would not be influenced by anything short of a significant financial benefit.

This Committee believes that a rule of reason is implicit in Rules 62A and 65B. The relevant observer, in terms of measuring the perceived effect of the judge’s actions, should be that fabled and favorite creature of the law: the reasonable person. The relevant inquiry should be whether the judge’s activity would undermine a reasonable person’s confidence in the impartiality of the judiciary generally or of that judge in particular. Cf. IJEC Opinion No. 97-17 (judge’s business dealings with city prosecutor would not cause judge’s impartiality to be reasonably questioned). In other words, a judge fails to "promote" public confidence in the impartiality of the judiciary under Rule 62A, and takes action that "reflects adversely" on the judge’s impartiality under Rule 65B, if the judge’s participation in civic or charitable activities causes public confidence (as measured from the perspective of the reasonable person) to be reduced. It should be emphasized that these rules are not limited to situations where the public or a reasonable person would conclude that a judge was probably not impartial. Judges cannot take actions that cause confidence in their impartiality or that of the judiciary generally to be undermined.

One factor in evaluating the reasonableness of any inference that acceptance of an honor might affect a judge’s impartiality is whether the organization’s recognition of the judge is accompanied by any financial benefit, such as an honorarium. Another consideration is the scale of the event. For example, a lavish, widely promoted event with hundreds of attendees would have a greater effect on a judge’s perceived impartiality than would a more modest, private function with perhaps a few dozen attendees.

This Committee believes the key consideration in this inquiry is that employees of the organization in question regularly appear before the judge and advocate positions in adversary proceedings. Under these circumstances, even though the award is not accompanied by any financial benefit and the scale of the event is presumably modest, a reasonable person would believe that, by accepting an award from that organization, the judge would be casting a cloud over his or her impartiality in cases in which employees of that organization are involved, particularly if the judge were to rule in favor of the position advocated by those employees. Accordingly, even though the organization’s principles may be laudable and its motive for honoring the judge innocent, the judge is precluded by Rules 62A and 65B from being that organization’s guest of honor. Cf. IJEC Opinion No. 98-5 (appearance of impropriety would be created by judge’s service on board of directors of charitable organization that administers program that judge routinely orders defendants to complete as a condition of probation); In re Corboy, 124 Ill.2d 29, 44, 528 N.E.2d 694, 701 (1988) ("The general public would certainly consider it an appearance of impropriety if a judge were to accept a gift from a lawyer who has matters in the court on which that judge sits").

OPINION

It is sometimes said that flattery will get one nowhere. It may well be that public praise from a non-profit organization that wishes to make a judge a guest of honor at a non-fundraising event will have no effect on the judge’s subsequent rulings. But where, as here, a reasonable person would believe that receiving such an honor might play a role in any ensuing rulings by the judge that happen to favor positions advocated by the organization’s employees, the honor should be declined.