1999-08: Judge's response to inquiry from a bar association regarding the qualifications of fellow judge for retention or elective judicial office.

Opinion No. 99-8

April 14, 1999

TOPIC: Judge's response to inquiry from a bar association regarding the qualifications of fellow judge for retention or elective judicial office.

DIGEST: A judge may, in confidential communication to a bar association, express an opinion regarding the qualifications of a fellow judge for retention or elective judicial office.

REFERENCES: Illinois Supreme Court Rules 62A, 67A(1)(b) and 67B(1)(b)(iv); Illinois Judicial Ethics Opinion No. 94-11; In re Petition of Judicial Inquiry Board, 128 Ill.App.3d 798, 802; 471 N.E.2d 601, 604 (1st Dist., lst Div. 1984).

FACTS

A bar association has asked the opinion of a judge regarding the qualifications of a fellow judge for retention or elective judicial office.

QUESTION

May a judge respond to questions from a bar association regarding the qualifications of a fellow judge for retention or elective judicial office?

OPINION

The bar association, in a confidential communication, is seeking information concerning the qualifications of a judge for retention or elective judicial office. The bar association may use this opinion in the judicial evaluation process. The result of this process is to generate an "evaluation" or "rating" of the candidate for public use.

This communication is confidential; therefore, there is no conflict with Illinois Supreme Court Rule 67A(1) which provides that a judge who is not a candidate for election or retention "shall not publicly endorse or publicly oppose another candidate for public office." See IJEC Opinion No. 94-11 (although a judge running for election or retention may publicly support other candidates, a judge who is not a candidate may not publicly support candidates, including judicial candidates.)

If we were to view this communication as a public endorsement, then, when the judge who is offering the information to the bar association also happens to be a candidate for election or retention, there would be no problem with such communication since Rule 67 allows that judge as an individual to endorse or oppose other candidates in the same election.

Rule 67A(1)(b) states the general rule as follows:

(1) Except as authorized in subsection[s] B(1)(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(1)(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.

However, the Committee is of the opinion that providing input to a bar association as to the qualifications of a fellow judge for retention or judicial election is not the same as a public endorsement. The nature of the communication is confidential. Moreover, the act of answering the questions posed by the bar association is not an endorsement, but simply confidential opinion regarding qualifications of that fellow judge for retention or judicial election.

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". Communication by a judge in a confidential manner to a bar association regarding the qualifications of a fellow judge for retention or election in no way diminishes the confidence of the public in the integrity and impartiality of the judiciary.

The argument can be made that since the bar association generates evaluations for use by the public, we are permitting a judge to do indirectly through a committee, what the judge cannot do directly, i.e. publicly endorse. However, the expression of opinion regarding qualifications is one of the many opinions solicited by the bar association during the evaluation process. The final rating is the result of many factors and may not even reflect the particular single opinion of the judge who was solicited for input. As such, the nature of the evaluation process sufficiently insulates the opinion of the judge from becoming an indirect public endorsement.

The confidentiality of this communication distinguishes it from public participation in judicial evaluation. Rule 67 forbids public participation in judicial evaluation. (IJEC Opinion No. 96-15) Public participation unlike private communication raises concerns about public perception. Thus, the Code of Judicial Conduct bars sitting on a civic organization's judicial evaluation committee, but allows giving confidential answers to a questionnaire. Rule 67 bars non-candidate judges from public endorsement or opposition, not confidential participation.

The confidentiality of these communications is well-established. Subpoenas seeking access to the confidential communications gathered in the judicial evaluation will be quashed because of the "crucial" importance to the public that judges and lawyers may offer "candid and frank evaluations of their colleagues..." In re Petition of Judicial Inquiry Board.

In conclusion, a judge may confidentially communicate his or her opinion regarding a judicial candidate to a bar association.