2003-03: Whether a Judge is Disqualified from Hearing Cases in Which a Relative of the Judge is Sued in His or Her Capacity as a Government Official

DISCLAIMER:  This Opinion interprets the 1993 Illinois Code of Judicial Conduct, which was superseded on January 1, 2023, by the 2023 Illinois Code of Judicial Conduct.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. 2003-03

September 19, 2003

TOPIC

Whether a judge is disqualified from hearing cases in which a relative of the judge is sued in his or her capacity as a government official.

DIGEST

A judge is disqualified from hearing a case in which a relative within the third degree of relationship is sued in his or her official capacity as a government official.

REFERENCES

Supreme Court Rule 63(C)(1)(e)(i); Supreme Court Rule 63C(1)(e)(iii); Supreme Court Rule 63D; Szajna v. General Motors Corp., 115 Ill.2d 294, 503 N.E.2d 760 (1986); County of Knox v. Highlands, L.L.C., 188 Ill.2d 546, 723 N.E.2d 256 (1999); Irwin v. McMillan, 322 Ill.App.3d 861, 750 N.E.2d 1246 (1st Dist. 2001); Jeffrey M. Shaman, et al., "Judicial Conduct and Ethics," § 5.11 at p. 117 (1990).

FACTS

The head of a certain government agency is frequently named, in his or her official capacity, as a defendant in lawsuits. The government official generally has no direct involvement in or firsthand knowledge about these disputes. The official currently holding that position is a relative within the third degree of relationship to a judge in the county where those lawsuits are filed.

QUESTION

Is the judge disqualified from hearing such lawsuits involving the judge’s relative?

OPINION

This inquiry raises the question whether a government official named as a party to a lawsuit in their official capacity is necessarily considered a "party" for purposes of the judge’s duty to disqualify in cases involving a party who is a relative within the third degree of relationship./ If such an official is necessarily considered a party, then the inquiring judge is disqualified pursuant to Supreme Court Rule 63(C)(1)(e)(i) unless the parties remit the judge’s disqualification pursuant to Supreme Court Rule 63D.

On its face, Rule 63C(1)(e)(i) does not distinguish between parties sued in their official capacity and any other parties. If that rule is interpreted literally, such an official is a party and disqualification is required.

On the other hand, just as the fundamental imperative of statutory interpretation is to effectuate the Legislature’s intent, court rules should be interpreted in accordance with their drafters’ intent. See Irwin v. McMillan, 322 Ill.App.3d 861, 868, 750 N.E.2d 1246, 1252 (1st Dist. 2001) ("When interpreting the supreme court rules, we must ascertain and give effect to the supreme court’s intent"). The language of such rules is often the best, but not necessarily the only, evidence of that intent. Here, especially in light of the apparent absence of any precedent or commentary addressing this issue in Illinois or elsewhere, it is questionable whether the drafters of Rule 63C(1)(e)(i) had situations in mind in which a party related to a judge is a government official sued in their official capacity. Accordingly, it is appropriate to consider whether a strict literal interpretation of the Rule would be consistent with the Rule’s underlying purpose.

Rule 63C(1)(e)(i) is intended to prevent judges from hearing cases in which they are biased or could reasonably appear to be biased. "[T]he judicial office should not be used as a vehicle for promoting family interests. Additionally, a judge should know … that presiding over cases which involve a relative is improper and diminishes public confidence in the judiciary." Jeffrey M. Shaman, et al., "Judicial Conduct and Ethics," § 5.11 at p. 117 (1990). These objectives would not appear to be implicated in cases involving relatives sued in their official capacity as a government employee so long as:

1. The judge’s relative is named as a party in his or her official capacity only;

2. The judge’s relative does not have any direct involvement with, or firsthand information bearing upon, the subject of the controversy; and

3. The judge’s relative has no more than a de minimus interest that could be affected by the outcome of the litigation (e.g., the litigation would not adversely affect the operation of the government agency or reflect unfavorably on the government official). Cf. Supreme Court Rule 63C(1)(e)(iii) (judge is disqualified if person within third degree of relationship "is known by the judge to have a more than de minimus interest that could be substantially affected by the proceeding").

As evidenced by these three conditions, precise line-drawing would be needed to determine whether the concerns underlying Rule 63C(1)(e)(i) are implicated in a case in which a party sued in their official capacity is a relative of the judge. The Committee believes that such line-drawing is the province of the drafters of the Rule. Cf. Szajna v. General Motors Corp., 115 Ill.2d 294, 310-311, 503 N.E.2d 760, 767 (1986) (interpreting UCC to permit non-privity consumer purchasers to recover direct, but not consequential, economic loss would constitute impermissible judicial legislation); County of Knox v. Highlands, L.L.C., 188 Ill.2d 546, 559, 723 N.E.2d 256, 264 (1999) ("an exercise in line-drawing [is] classically meant for the Legislature"). That kind of interpretive gloss is especially inappropriate for a committee whose non-binding opinion suggesting such an exception not found in the text of the Rule might offer little protection to judges who rely on it.

The conclusion that Rule 63C(1)(e)(i) disqualifies judges from hearing cases involving relatives within the third degree of relationship sued in their official capacity is reinforced by the fact that, even if satisfaction of the three conditions stated above would remove any risk that the concerns underlying Rule 63C(1)(e)(i) warrant disqualification, there would be significant practical obstacles to a judge’s ability to make that determination. The difficulty of gathering the necessary information would be particularly vexing. If the judge attempts to make that determination from the face of the complaint, there would be a risk that the judge might not be aware of facts indicating that the relative will have more than a nominal role in the lawsuit. If those facts later become apparent--for example, if the relative would be a witness at trial--the basis of the judge’s decision that the relative was not a party for purposes of Rule 63C(1)(e)(i) would be undermined and the judge would be required to disqualify himself or herself at that time. Such a belated disqualification could, at a minimum, create an appearance of impropriety associated with the judge’s prior rulings in the case.

Attempting to avoid the possibility of a belated disqualification would engender problems of its own. If a judge, before deciding the disqualification issue, discloses his or her familial relationship with a defendant and seeks information from the parties regarding whether that individual is sued solely in his or her official capacity and has any direct involvement or firsthand information regarding the facts giving rise to the controversy, this would effectively invite the parties’ counsel, if they perceived a tactical advantage in doing so, to characterize the nature of the litigation (and, hence, the relative’s role) in a manner that would require the judge’s disqualification. A judge would be hard-pressed, under those circumstances, not to disqualify himself or herself if a party (most likely the plaintiff) alleges that the relative is more than a nominal party. If the judge initially discounts those allegations, the judge may be forced to reconsider if the party who made the allegations attempts to take the deposition of the government official or to call that person as a witness at trial.

Under these circumstances, the Committee believes that the mere possibility the concerns underlying Rule 63C(1)(e)(i) are absent when government officials are sued in their official capacity does not warrant creating an exception to the plain language of the Rule requiring disqualification whenever relatives within the third degree of relationship are parties. Instead, if a judge concludes that this kind of situation would not affect the judge’s ability to render an impartial decision, the Committee recommends that the judge consider offering the parties the opportunity to remit the judge’s disqualification in accordance with Supreme Court Rule 63D.

CONCLUSION

A judge is disqualified from a case in which a relative within the third degree of relationship is sued in their capacity as a government official regardless of whether the relative was involved in, or has firsthand knowledge of, the facts giving rise to the controversy.