The Illinois Supreme Court has adopted a new Code of Judicial Conduct which will go into effect on January 1, 2023. The opinions listed here were published under the prior code, and are now subject to potential changes. The IJEC is currently in the process of reevaluating each of these opinions in light of the new Code of Judicial Conduct, and will be updating the opinions on a rolling basis.

Opinion No. 2016-03

November 1, 2016

Topic:   Judge serving on a Law Section Council of a statewide bar association.

Digest: A judge may serve on a Law Section Council of a statewide bar association and participate in discussions and votes concerning proposed legislation.

References: Illinois Supreme Court Rules 62B and 64; Committee Commentary to Rule 64; Buell v. Mitchell, 274 F.3d 337, 345 (6th Cir. 2001); Illinois Judicial Ethics Committee Opinion Nos. 1994-05 (1994) & 1994-17 (1994); E. Wayne Thode, Reporter’s Notes to the Code of Judicial Conduct 74 (1973).

Facts

A judge serves as a member of one of several Law Section Councils of a statewide bar association. Each Law Section Council consists of lawyers and judges who belong to the bar association and have an interest in a particular area of the law. From time to time, a Law Section Council may receive inquiries from other Law Section Councils and from the governing bodies of the association, inquiring whether a Law Section Council supports or opposes proposed legislation pending in the state legislature. When a Law Section Council receives such an inquiry, the Law Section Council’s secretary polls each member of that Law Section Council as to whether the member supports or opposes the pending bill. The secretary tallies the votes and informs the inquiring entity whether the Law Section Council supports or opposes the legislation. Neither the votes of the individual members of the Law Section Council nor the vote total is disclosed. The judge does not take a public position on the proposed legislation or lobby for or against the passage of any bill reviewed by the Law Section Council.

Issue

Is the judge’s service on the Law Section Council, including voting in favor of or in opposition to proposed legislation, consistent with the Code of Judicial Conduct?

Opinion

Illinois Supreme Court Rule 64 allows judges considerable leeway in engaging in activities concerning the law, the legal system, and the administration of justice. According to Rule 64, a judge may write, teach, and speak on law-related matters, testify at legislative and executive hearings, consult with executive and legislative officials, and serve as a member, officer, or director of a bar association. Ill. S. Ct. R. 64. The Committee Commentary to Rule 64 explains the rationale behind the Code’s encouragement of extrajudicial, law-related activities.

As a judicial officer and person specially learned in the law, a judge is in a unique position to contribute to the improvement of the law, the legal system, and the administration of justice, including revision of substantive and procedural law and improvement of criminal and juvenile justice.

Committee Commentary to Ill. S. Ct. R. 64.

Rule 64 limits a judge’s participation in extrajudicial activities concerning the law, the legal system, and the administration of justice by providing that (1) a law-related activity cannot interfere with the proper performance of judicial duties, and (2) the judge’s activity must “not cast doubt on his or her impartiality on any issue that may come before him or her.” Ill. S. Ct. R 64. The Committee Commentary to Rule 64 also cautions judges that any effort to improve the law, the legal system, or the administration of justice should be performed through “appropriate channels.” Committee Commentary to Ill. S. Ct. R. 64. Illinois Supreme Court Rule 62 is also relevant to the inquiry because it prohibits a judge from “lend[ing] the prestige of judicial office to advance the private interests of others,” including bar associations. Ill. S. Ct. R. 62B.  In the opinion of the Illinois Judicial Ethics Committee, the judge’s participation as member of a Law Section Council including expressing his or her opinion on pending law-related legislation, does not implicate any limitation on a judge’s law-related, extrajudicial activities.

First, nothing in the inquiry indicates that attending Law Section Council meetings in person or remotely, or preparing for meetings or votes or other council business, will interfere with the judge’s attendance in court or the timely disposition of court business.

Second, the Committee cannot conclude that voting on proposed legislation as a member of a section council would “cast doubt” on the judge’s impartiality. As previously recognized by the Committee, the Code of Judicial Conduct permits judges to privately and publically speak about proposed legislation and express their views on substantive and procedural aspects of the law so long as the judge does not express or imply an intent to disregard the law in favor of the judge’s personal opinion. See Ill. Judicial Ethics Comm. Op. 1994-17 (1994) (“Judges may speak regarding the merits of proposed or enacted legislation so long as they do not cast doubt on their capacity to later decide impartially any cases involving the legislation.”); Ill. Judicial Ethics Comm. Op. 1994-05 (1994) (advising that a judge may publish his views on gun control provided it is clear that the judge will impartially apply the law in deciding cases involving guns). In discussing Canon 4C of the 1972 ABA Code of Judicial Conduct (upon which Illinois Rule 64C is based), the Reporter for the 1972 ABA Code emphasized the ability of judges to suggest changes in the law without compromising their impartiality.

The line between appropriate quasi-judicial activities and those that are likely to lead to a judge’s disqualification is not as difficult to draw as may first appear. For example, a judge may write or lecture on a legal issue, analyzing the present law and its history, its virtues and its shortcomings; he may commend the present law or propose legal reform without compromising his capacity to decide impartially the very issue on which he has spoken or written.

E. Wayne Thode, Reporter’s Notes to the Code of Judicial Conduct 74 (1973) (emphasis added); see also Buell v. Mitchell, 274 F.3d 337, 345 (6th Cir. 2001) (holding that a judge, who as a state legislator sponsored legislation restoring the death penalty in Ohio, was not disqualified from presiding over death penalty cases).

Third, a general membership bar association would appear to qualify as an “appropriate channel” by which to engage in law-related activities especially in light of the fact that Rule 64C specifically permits a judge to hold office in law-related organizations, including associations of lawyers. See Vt. Judicial Ethics Comm. Op. 2728-13 (2008) (“[T]here is a consensus that generalized state bar associations are appropriate law-minded endeavors.”)

Lastly, a judge’s service on a bar association’s Law Section Council does not lend judicial prestige to the bar association, the section council, or the proposed legislation reviewed by the council. This conclusion is inescapable since the Code of Judicial Conduct expressly permits, and indeed encourages, judges to hold much more visible and influential positions in bar associations. See Ill. S. Ct. R. 64 (permitting a judge to “serve as a member, officer, or director of a bar association . . . .”). Moreover, here the votes of a Law Section Council’s members are not made public or used to promote or oppose legislation. Only other members of the Law Section Council are privy to the judge’s position on legislation considered by the Council.

Conclusion

A judge’s participation in a general membership bar association’s committee work is an appropriate vehicle by which to advance the law, the legal system, and the administration of justice. Under the facts presented, the judge’s service on a Law Section Council will not interfere with the performance of judicial duties or misuse the prestige of judicial office. Nor will it compromise judicial impartiality. Each member of a Law Section Council is acutely aware of a judge’s responsibility to separate his or her personal opinions concerning a law from the judicial decision-making process.