August 2017 • Volume 105 • Number 8 • Page 12
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Yes, you must report judicial misconduct
An attorney's duty to report attorney misconduct under Rule of Professional Conduct 8.3 extends to judges, too.
LawPulse recently covered what happens when attorneys baselessly accuse judges of improper conduct. See May 2017 LawPulse at http://bit.ly/2u4L5LU. But what about when a judge does something improper? Is there an obligation to report? What triggers that obligation? Where do you report the comment? The Judicial Inquiry Board can answer all of those questions.
The board is an independent agency created by Article VI, Section 15(b) of the 1970 Illinois Constitution. Its mandate is to investigate and prosecute allegations of judicial misconduct or incapacity against Illinois state court judges (http://bit.ly/2taFVcR). The board is not part of the Illinois Courts Commission. That is a separate entity tasked with hearing evidence and deciding whether there is merit to charges brought against judges by the board.
The duty to report
But is there a duty to report? The simple answer is yes. An attorney's duty to report attorney misconduct under Rule of Professional Conduct 8.3 extends to judges as well (http://bit.ly/2u50X19.) Rule 8.3(b) states, "A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's fitness for office shall inform the appropriate authority." Note, however, that Comment  to the Rule provides that a "measure of judgment" is required when a lawyer seeks to comply with the reporting requirement and that not all violations may trigger it.
Illinois Supreme Court Rules 61 through 68 establish the Canons of the Code of Judicial Conduct. Violations of the Code include, among others: impropriety and the appearance of impropriety; improper communication with only one of the parties in a case; injudicious temperament (such as rudeness, profanity, or yelling); inappropriate political activity; or delay in performing judicial duties.
So, you believe that a judge engaged in reportable misconduct. What next? That's where the Judicial Inquiry Board comes in. Attorneys and litigants can request a complaint form via phone, fax, or download it from the board's website (http://bit.ly/2uNkMrh). Once the completed complaint form is received, the form and attached documents are analyzed by staff and then given to board members for review before the next monthly meeting. The board makes a determination whether it will close the complaint, investigate further, or require the judge to appear before it.
Once the board chooses to investigate, it can close the complaint because there is insufficient reason to take further action. It might also decide to close the complaint but monitor the judge's court room or send a private letter of admonishment or caution to the judge. The board can also elect to require the judge to appear before it and respond to the complaint's allegations.
If the board decides to immediately bring the judge in to respond to questions about the allegations, then it can take the same actions as after an investigation, but instead of compelling the judge to appear again, the board can elect to file formal charges with the courts commission.
The board then prosecutes the complaint. If the Illinois Courts Commission sustains the complaint, it can issue the following sanctions: reprimand, censure, suspension with or without pay, removal from office, or mandatory retirement.
The board's website notes that although many filed grievances do not result in charges being brought before the commission, every complaint counts (http://bit.ly/2sMzldj). Maybe one complaint isn't enough to establish judicial misconduct. However, each complaint is retained by the board. If multiple, similar complaints about the same judge keep being filed, it may give the board a basis to act down the line.
Complaints are confidential
Are complaints confidential? Absolutely. The board accepts anonymous complaints. Rule 5 of the Rules of Procedure of the Judicial Inquiry Board states that the proceedings of and information and materials received by the board are confidential.
If the board chooses not to bring charges against a judge, only the judge and the complaining party are notified. The only time the board may disclose is when it is necessary to prosecute perjury or contempt issues in court. What's more, any unauthorized disclosure violates Article V, Section 15(c) of the 1970 Constitution of the State of Illinois, which mandates that all proceedings shall be confidential with the exception of complaints to the Commission.
Those complaints are available in summary form dating back to 1972. Orders issued by the commission dating back to 1997 are available as well. (http://bit.ly/2taB7UT.)