Opinion No. 98-16
November 10, 1998
TOPIC: Campaigning judge's appointment as deputy voter registrar.
DIGEST: A judge who is campaigning for election cannot serve as a deputy voter registrar.
REFERENCES: Ill. Constitution Article VI §13(b); 10 ILCS 5/6-50.2; Livingston v. Ogilvie, 43 Ill.2d 9, 250 N.E.2d 138 (1969); In re Law, 1 Ill. Courts Commission 23 (1974); In re McDonnell, 1 Ill. Courts Commission 16 (1973); In re Staege, 476 N.W.2d 876 (Wis. 1991); Illinois Supreme Court Rules 62 and 65; Illinois Judicial Ethics Committee Opinion Nos. 95-13, 96-15, 96-21, 97-13;
Am. Jur.2d § 45.
FACTS
A judge who is campaigning for election would like to be appointed to serve as a deputy voter registrar. The judge would like to be able to register potential voters whom the judge meets while campaigning door-to-door. The judge would not be compensated for serving as a deputy voter registrar.
QUESTION
Can a judge who is running for election serve as a deputy voter registrar?
OPINION
The Committee believes that a candidate-judge's service as a deputy voter registrar would violate the Code of Judicial Conduct, the Election Code, and the Illinois Constitution. Each of these considerations is addressed below.
I
Rule 67C of the Code of Judicial Conduct states:
A judge shall not engage in any political activity except (i) as authorized under any other provision of this Code, (ii) on behalf of measures to improve the law, the legal system or the administration of justice, or (iii) as expressly authorized by law.
The threshold question raised by Rule 67C is whether a candidate-judge's service as a deputy voter registrar constitutes "political activity." The Committee believes that it does. The judge wishes to serve as a deputy registrar to promote the judge's own candidacy, not for any altruistic desire to increase voter participation. Efforts to increase voter turnout in support of a particular candidate or cause constitutes a quintessential form of political activity.
Rule 67C prohibits judges from engaging in political activity unless the specific activity in question falls within one of the three stated exceptions. The Committee believes that none of these exceptions is applicable:
First, there is no other provision of the Code of Judicial Conduct which authorizes judges to serve as deputy voter registrars. The general authorization contained in Rule65B for judges to engage in "civic activities" does not extend to efforts designed to promote the judge's candidacy for office. Cf. Illinois Judicial Ethics Committee (IJEC) Opinion No. 95-13 (judge's service on co-op board of directors does not constitute "civic activity" authorized by Rule 67B); IJEC Opinion No. 96-15 (Rule 65B does not authorize judge to serve on civic organization's judicial evaluation committee); IJEC Opinion No.97-13 (Rule 65B generally authorizes judge to serve as officer or board member of not-for-profit economic development corporation).
Second, because the judge's desire to serve as a voter registrar is intended to promote the judge's own candidacy, it does not constitute the kind of public-spirited activity that falls within the exception for activities intended to improve the law, the legal system, or the administration of justice.
Third, there is no other law that expressly authorizes judges to serve as deputy voter registrars.
Because none of the exceptions to the prohibition against engaging in political activity is applicable, a candidate-judge's service as a deputy voter registrar would violate Rule 67C.(1)
II
The Committee also believes that the candidate-judge's efforts as a deputy voter registrar to promote the judge's own candidacy would violate 10 ILCS 5/6-50.2(e). That provision prohibits deputy voter registrars from "any electioneering or the promotion of any cause during the performance of [deputy voter registrar] duties." The judge's registration of potential voters whom the judge encounters while campaigning would clearly violate this statutory prohibition.(2)
III
At common law, judges were prohibited from holding any offices that were "incompatible" with serving as a judge. See generally Am. Jur.2d § 45. However, the 1970 Illinois Constitution expanded the common law prohibition to preclude judges from holding any office:
Judges and Associate Judgesshall not practice law, hold a position of profit, hold office under the United States or this State or unit of local government or school district or in a political party.
Ill. Const. Art. VI, §13(b) (emphasis added).
The question thus becomes whether the position of deputy voter registrar constitutes an "office" within the meaning of this constitutional provision. The Committee believes that it is. The statutory oath required for appointment as a deputy voter registrar expressly recognizes that such service involves an office. Deputy registrars must take and subscribe to the following oath or affirmation:
I do solemnly swear (or affirm, as the case may be) that I will support the Constitution of the United States, and the Constitution of the State of Illinois, and that I will faithfully discharge the duties of the office of registration officer to the best of my ability and that I will register no person nor cause the registration of any person except upon his personal application before me.
10 ILCS 5/6-50.2(a) (emphasis added).
See also Livingston v. Ogilvie, 43 Ill.2d 9, 250 N.E.2d 138 (1969) ("[a]n office is a public position created by constitution or law, continuing during the pleasure of the appointing power, or a fixed time, with a successor elected or appointed.")
Because persons who serve as deputy voter registrars hold an "office", a judge's service in that capacity would violate the Constitution. It should be noted that this prohibition is broader than the ethical and statutory restrictions discussed in Sections I and II of this opinion, in that the Constitution prohibits a judge from serving as a deputy voter registrar even if the judge does not do so to further the judge's own candidacy.
CONCLUSION
A judge who is running for office would violate Supreme Court Rule 67C and 10 ILCS 5/6-50.2(c) by serving as a deputy voter registrar to further the judge's candidacy. All judges, even those who are not running for office, are precluded by Article VI, Section 13(b) of the Constitution from serving as a deputy voter registrar.
1. 1 The judge's service as a deputy voter registrar would not violate the prohibition in Rule 65G against appointment to governmental positions "concerned with issues of fact or policy on matters other than the improvement of the law, the legal system, or the administration of justice." Service as a deputy voter registrar would not concern issues of fact or policy. See generally IJEC Opinion No. 96-21 (Rule 65G prevents judge from accepting appointment to school district's advisory council).
2. 2 The Committee notes, but need not decide, the issue whether any violation of 10 ILCS 5/6-50.2(e) would also constitute a violation of the admonition in Supreme Court Rule 62A that judges should "comply with the law". That issue would appear to turn on whether this portion of Rule 62A is limited to criminal misconduct or, instead, encompasses violations of civil statutory provisions and/or the Constitution. In re Law,.1 Ill.Cts.Comm'n 23 (1974) (disciplining judge for driving while intoxicated); In re McDonnell, 1 Ill.Cts.Comm'n 16 (1973) (disciplining judge for handgun violations); In re Staege, 476 N.W.2d 876 (Wis. 1991) (disciplining judge who was found in contempt for ignoring court order requiring compliance with zoning ordinance).
