2012-02: Propriety of Judge Standing for Retention Endorsing a Candidate for Judicial or Other Elective Office in the Primary Election Immediately Preceding the General Election 

DISCLAIMER:  This Opinion interprets the 1993 Illinois Code of Judicial Conduct, which was superseded on January 1, 2023, by the 2023 Illinois Code of Judicial Conduct.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. 2012-02

September 14, 2012

TOPIC

Propriety of judge standing for retention endorsing a candidate for judicial or other elective office in the primary election immediately preceding the general election.

DIGEST

A judge standing for retention may not publicly endorse or oppose a candidate for judicial or other elective office in a primary election.

REFERENCES

Article V; Section 12 (a) and (d), Illinois Constitution of 1970; Illinois Supreme Court Rules 62B, 67B (1)(a) (iv), 67B (3); Rule 8.2 (b) Illinois Rules of Professional Conduct of 2010; Hossfield v. Illinois State Board of Elections, 238 Ill. 2d418 (2010); O’Brien v. White, 219 Ill. 2d 86 (2006).

FACTS

A judge, standing for retention in November, is approached by a lawyer who has often practiced before the judge. The lawyer is held in high regard in the legal community. This attorney is running for election as a circuit judge in a contested primary to be held in March. The lawyer requests that the judge publicly endorse her candidacy in the primary election.

QUESTION PRESENTED

Can the judge endorse the lawyer’s candidacy in the contested primary election?

OPINION

Illinois Supreme Court Rule 67 regulates the political activities of sitting judges, as well as, candidates for judicial office.[1] Rule 67B (1) (a) (iv) provides, in part: “A judge… may, … publicly endorse or publicly oppose other candidates in a public election in which the judge … is running.” This provision is a natural corollary to the prohibition against lending the prestige of judicial to advance the private interests of others found in Rule 62B.

It would appear, from the language of Rule 67, that the question can only be answered by determining the relationship between the primary election and the retention election. Thus, if the primary and retention election were a “public election,” such an endorsement would be permissible under the Rule. If, however, the primary and retention elections were two separate “public elections,” such an endorsement would be contrary to the Rule.

Article V Section 12 of the Illinois Constitution of 1970 establishes the procedure for the election and retention of judges. In order to hold office as a Circuit, Appellate or Supreme Court judge, an individual must be elected to that office in a general or judicial election.[2] The Constitution further provides that nomination to appear on the election ballot must be by nomination in a primary election or by petition. This latter provision applies to candidates who are not affiliated with a political party. 

It is the usual practice in Illinois, that candidates for judicial office seek the nomination of a political party in the primary election. If successful, the individual is identified as the political party’s candidate in the general election. This process has been recently described as an “election cycle” by the Supreme Court. Hossfield v. Illinois State Board of Elections, 238 Ill. 2d 418, 428-429 (2010). Holding that a person who declared himself or herself a primary voter in a primary election was free to change party affiliation for all purposes once the ensuing general election had been held.

A different process applies to judges seeking retention in office. This procedure is set out in Article V; Section 12 (d) of the Constitution. In order to stand for retention, the judge must timely file his or her intention to seek retention with the Secretary of State.[3]

After the Secretary of State certifies that the judge has properly declared his or her desire to be retained, the issue of retention is submitted to the voters. The manner in which this is done is found in Section 12 (d), which provides in part:

…The names of Judges seeking retention shall be submitted to the electors, separately and without party designation, on the sole question whether each Judge shall be retained in office for another term. The retention elections shall be conducted at general elections in the appropriate Judicial District, for Supreme and Appellate Judges, and in the circuit for Circuit Judges. The affirmative vote of three-fifths of the electors voting on the question shall elect the Judge to the office for a term commencing on the first Monday in December following his election.

A plain reading of this language yields that the retention election is not part of the election cycle of a primary followed by a general election. It is a separate, non-partisan election that is held at the same time as the general election.

As the issue of judicial retention is put before the voters on the same day as the general election, it is the Committee’s opinion that the term “public election” used in Supreme Rule 67B (1) (a) (iv) is inclusive of both the general election and retention processes. Consequently, it is our opinion that a judge seeking retention may only endorse or oppose candidates in the general election. This interpretation allows the judge to fully participate in the general election yet avoids the potential abuse of lending the prestige of judicial office to a candidate whose qualifications are only relevant to partisan electors in a primary election. This result also acknowledges that a judge is permitted by Rule 67B (3) to allow his or her name to appear on election materials with other candidates for elective office and to appear in promotion of the ticket.