1997-02: Disciplinary Action Against Judge on the Basis of (1) Testimony Given by the Judge to a Grand Jury Under a Grant of Immunity and (2) Alleged Wrongdoing that Occurred Before the Judge Assumed the Bench DISCLAIMER: This Opinion interprets the 1993 Illinois Code of Judicial Conduct, which was superseded on January 1, 2023, by the 2023 Illinois Code of Judicial Conduct. This Opinion does not consider or address whether the 2023 Code affects the analysis or conclusion of the Opinion. A table cross-referencing the 1993 Code to the 2023 Code can be found at IJEC CORRELATION TABLE. IJEC Opinion No. 1997-02 January 13, 1997 TOPIC Disciplinary action against judge on the basis of (1) testimony given by the judge to a grand jury under a grant of immunity and (2) alleged wrongdoing that occurred before the judge assumed the bench. DIGEST Testimony provided by a judge to a grand jury under a grant of immunity may be used against the judge in subsequent judicial discipline proceedings. An early Courts Commission decision holds that it lacks jurisdiction to discipline a judge for misconduct that occurred before the judge assumed the bench. REFERENCES U.S. Const. amend. V; 18 U.S.C. §§6001-6003; Murphy v. Waterfront Comm'n, 378 U.S. 52 (1964); Kastigar v. United States, 406 U.S. 441 (1972); Napolitano v. Ward, 457 F.2d 279 (7th Cir.), cert. denied, 409 U.S. 1037 (1972); In re Daley, 549 F.2d 469 (7th Cir.), cert. denied, 434 U.S. 829 (1977); Ill. Const. art. VI, §§11, 15(c) and 15(e); Ill. Const. art. XIII, §1; 725 ILCS 5/106-1; Illinois Supreme Court Rules of the Code of Judicial Conduct, Canon 1 (145 Ill.2d R. 61), Canon 2 (145 Ill.2d R. 62), Canon 3 (145 Ill.2d R. 63); In re McGarry, 380 Ill. 359, 44 N.E.2d 7 (1942); In re Schwarz, 51 Ill.2d 334, 282 N.E.2d 689, cert. denied, 409 U.S. 1047 (1972); In re Witt, 145 Ill.2d 380, 583 N.E.2d 526 (1991); In re Kaye, 1 Ill. Cts. Com. 36 (1974); Illinois Judicial Ethics Committee Opinion No. 97-1; In re Ryman, 232 N.W.2d 178 (Mich. 1975); In re Gillard, 271 N.W.2d 785 (Minn. 1978); Sarisohn v. Appellate Div. of Supreme Court, 233 N.E.2d 276 (N.Y. 1967); In re Greenberg, 280 A.2d 370 (Pa. 1971). FACTS A judge is subpoenaed to appear before a grand jury. Testifying under a grant of immunity, the judge admits to misconduct that took place before assuming the bench. The misconduct would have violated the Code of Judicial Conduct if it had been committed by a judge. QUESTIONS 1. Can a judge be disciplined for misconduct revealed when testifying under a grant of immunity? 2. Can a judge be disciplined for acts that occurred before the judge assumed the bench? OPINIONS Question 1 In Illinois Judicial Ethics Committee Opinion 97-1, this Committee concluded that a judge would violate the Code of Judicial Conduct by bargaining for immunity in connection with the judge's testimony before a grand jury concerning the performance of the judge's official functions, but that a judge would not violate the Code by accepting an unrequested grant of immunity. This inquiry goes a step further and addresses whether a judge can be disciplined if testimony given under a grant of immunity reveals actions by the judge that violate the Code of Judicial Conduct.
Question 2
"Of the standards specified in the Constitution, the only one that could by any possible stretch be thought to apply to conduct before a man becomes a judge is 'conduct that tends to bring the judicial office into disrepute.' Conduct that occurred before a man became a judge may bring the man into disrepute, but it can hardly be said to bring the judicial office into disrepute." Id. at 50, 53-54.
Contrary to Kaye, courts in various other jurisdictions have concluded that misconduct committed before assuming the bench can constitute a basis for judicial discipline. See, e.g., In re Ryman, 232 N.W.2d 178, 180 (Mich. 1975) ("misconduct, although unrelated to the performance of judicial duties, and even if occurring before the lawyer becomes a judge, may be conduct that is clearly prejudicial to the administration of justice"); In re Gillard, 271 N.W.2d 785 (Minn. 1978) (upholding the removal of a judge for acts of professional misconduct that occurred while he was acting as an attorney); In re Greenberg, 280 A.2d 370 (Pa. 1971) (mail fraud was grounds for removal from the bench even though the fraudulent acts were committed before becoming a judge); Sarisohn v. Appellate Div. of Supreme Court, 233 N.E.2d 276, 281 (N.Y. 1967) (judicial discipline is warranted by misconduct occurring before becoming a judge that would justify debarment from future office or which relates to general character and fitness for office). The Illinois Supreme Court has never addressed whether a judge can be disciplined for misconduct committed before assuming the bench. Nor, in the 20 years since Kaye was decided, has the Courts Commission had occasion to revisit that issue. However, Kaye constitutes the law in Illinois at the present time.
CONCLUSION Testimony provided by a judge to a grand jury under a grant of immunity may be used against the judge in subsequent judicial discipline proceedings. However, to the extent that the immunized testimony relates to misconduct that occurred before the judge assumed the bench, under current law an Illinois judge cannot be disciplined for violating the Code of Judicial Conduct in connection with that misconduct. [1] The Committee expresses no opinion on the scope of immunity statutes in states other than Illinois. [2] An individual may be disciplined as an attorney for acts of "immorality, dishonesty, fraud or crime" committed while serving as a judge. In re Witt, 145 Ill.2d 380, 394, 583 N.E.2d 526 (1991). See also In re McGarry, 380 Ill. 359, 369, 44 N.E.2d 7 (1942) (judges may be disciplined "in their profession for any conduct exhibiting turpitude or the loss of that good character which was essential to admission and which must be deemed equally essential to continuance at the bar").
|