2003-01: Candidate for Judicial Office Making Allegations About Opponent Unlikely to Cause Criminal or Disciplinary Action

DISCLAIMER:  This Opinion interprets the 1993 Illinois Code of Judicial Conduct, which was superseded on January 1, 2023, by the 2023 Illinois Code of Judicial Conduct.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. 2003-01

February 20, 2003

TOPIC

Candidate for judicial office making allegations about opponent unlikely to cause criminal or disciplinary action.

DIGEST

A judge or candidate for judicial office should not make allegations about an opponent’s purported private sexual conduct absent a likely criminal prosecution or judicial disciplinary violation.

REFERENCES

Illinois Supreme Court Rule 67A(3)(a), 67D

720 ILCS 5/11-7 and 5/11-8

In re Buckley, 997 F.2d 224

In re Dalessandro, 397 A.2d 743

Cincinnati Bar Assn. v. Heitzler, 291 N.E.2d 477

In re Tully Order No. 90-Cc-2 (Ill. Cts. Comm’n, Oct 25, 1991)

Deters v. Judicial Retirement and Removal Comm’n, 873 S.W.2d 200 (Ky. 1994)

Shaman, et al., Judicial Conduct and Ethics, 3rd Ed. 2000, §11.08

FACTS

A judicial candidate alleges possession of reliable information about his or her opponent’s background which includes private sexual conduct. The opponent is a sitting judge, and the candidate asserts the conduct could bring disrepute to the office of the judge.

QUESTION

May the judicial candidate disclose the alleged conduct to the public in the course of a campaign for judicial office?

OPINION

This question tests the boundaries of acceptable campaign conduct for judges and judicial candidates. This effort to reconcile conduct in a contested partisan political election process with conduct appropriate to the judiciary and aspirants thereto indicates the tension existing between the two.

Illinois Supreme Court Rule 67A(3)(a) states:

(3) A candidate for a judicial office:

(a) shall maintain the dignity appropriate to judicial office and act in a manner consistent with the integrity and independence of the judiciary, and shall encourage members of the candidate’s family to adhere to the same standards of political conduct in support of the candidate as apply to the candidate…

Rule 67D applies the standards for judicial campaigns to non-judge candidates as well as to judges seeking higher judicial office:

(D) Applicability. Canon 7 generally applies to all incumbent judges and judicial candidates. A successful candidate, whether or not an incumbent, is subject to judicial discipline for his or her campaign conduct; an unsuccessful candidate who is a lawyer is subject to lawyer discipline for his or her campaign conduct. A lawyer who is a candidate for judicial office is subject to Rule 8.2(b) of the Rules of Professional Conduct.

The problem of restricting the speech of candidates for judicial office was described in In re Buckley, 997 F.2d 224 at 231:

[T]he principle of impartial justice under law is strong enough to entitle government to restrict the freedom of speech of participants in the judicial process, including candidates for judicial office, but not so strong as to place that process completely outside the scope of the constitutional guaranty of freedom of speech.

The question before this Committee is whether Rule 67A(3)(a) would be violated by a judicial candidate disclosing during a campaign the sexual conduct of his or her opponent, where such conduct could bring disrepute to the office of judge, and whether a prohibition would in itself violate the candidate’s right of free speech.

The very phraseology of the question illustrates the tension that exists within a contested partisan political judicial campaign. There are no reported cases of a judge being disciplined in Illinois for sexual misconduct. One case in another jurisdiction involving an intimate relationship held that "since the respondent’s conduct was not prohibited by law there is no basis for discipline regardless of the private views of this Court." In re Dalessandro, 397 A.2d 743 [S.Ct., Pennsylvania, 1979]. Contr, Cincinnati Bar Association v. Heitzler, 291 N.E.2d 477 [S.Ct., Ohio, 1972] (decided under former Canons).

Dalessandro would seem to imply that the touchstone for campaign relevance is legality. Within the arcanum of the Illinois Compiled Statutes exists the offense of adultery as a Class A misdemeanor. The elements of the offense are contained in §720 ILCS 5/11-7:

Sec. 11-7. Adultery. (a) Any person who has sexual intercourse with another not his spouse commits adultery, if the behavior is open and notorious, and

(1) The person is married and the other person involved in such intercourse is not his spouse; and

(2) The person is not married and knows that the other person involved in such intercourse is married.

Similarly, fornication is also a Class B misdemeanor in Illinois, as set forth in §720 ILCS 5/11-8:

Sec. 11-8. Fornication. (a) Any person who has sexual intercourse with another not his spouse commits fornication if the behavior is open and notorious.

An essential element of both offenses is that the conduct be open and notorious. Although the Committee believes that a higher standard of judicial conduct is necessary than mere obedience to the law, the Committee is of the opinion that private relationships involving a judge, even if "open and notorious conduct" should not subject a judge to discipline. Yet, regardless of whether it is "open and notorious," there are many members of the electorate who would view such conduct as "immoral" reflecting adversely on the "dignity" of judicial office and, thus, bring the office into "disrepute." And many members of the electorate would vote accordingly.

The Court in Buckley, supra, acknowledged the reality that:

[t]he only time the public takes much interest in the ideas and opinions of judges or judicial candidates is when an important judicial office has to be filled; and in Illinois those offices are filled by election. It is basically only during the campaign that judicial aspirants have an audience. . . .

However, Buckley also recognized that "Judges remain different from legislators and executive officials, even when all are elected, in ways that bear on the strength of the state’s interest in restricting their freedom of speech." Ibid. at 228.

One need merely change the nature of the alleged private sexual conduct from sexual to any of a myriad of other perceived extreme behaviors or controversial beliefs to watch the tide of opinion shift. Even expressions of belief which are considered normal political fodder become open to ethical inquiry when present in judicial campaigns. For example, the Illinois Courts Commission held that statements made by a judge that he was "tough on crime" and "tough on taxes" were within the realm of general comment. In re Tully, Order No. 90-CC-2 (Ill. Cts. Comm’n, Oct. 25, 1991) cited in Shaman, et. al., Judicial Conduct and Ethics, 3rd Ed., 2000, §11.08, note 61, page 377. Contrast that with the Kentucky Supreme Court holding that Canon 7B(1)(c) was violated by a judicial candidate who characterized himself as a "pro-life candidate." Deters v. Judicial Retirement and Removal Commission, 873 S.W.2d 200 (Ky. 1994) cited in Shaman, et al., supra, §11.08, page 380.

The question remains whether publicly disclosing a judge’s alleged private sexual conduct is consistent with maintaining the "dignity appropriate to judicial office." If alleged conduct of the judge in all likelihood would not subject him or her to either criminal prosecution or judicial discipline, the inescapable conclusion is that the judicial-candidate is publicizing the alleged immoral conduct in the brevity of the campaign solely to gain political advantage, and not for any improvement of the legal system.

While Buckley may have expanded the range of comment allowed by judges, it did not reduce the heightened scrutiny of such a judicial candidate’s political speech. Thus, the revelation would detract from the dignity appropriate to judicial office and should subject the revealing candidate to discipline.

While such personal aspersions may be the currency of regular political campaign discourse, more is demanded of judicial candidates.

CONCLUSION

It is impermissible for a candidate in a campaign for judicial office to disclose factually accurate information about his or her opponent’s private sexual conduct absent a likely criminal or judicial disciplinary violation connected with such conduct.