Before you run, know the rules and prepare yourself … it may be a bumpy ride!
For decades, scholars, professors, members of the judiciary, and the legal community have questioned whether judges should be elected by the public or be appointed based on merit. There certainly are pros and cons to both approaches. Many will argue that the judiciary, as the third equal branch of government, should be appointed to ensure isolation from political influence, while maintaining a commitment to judicial independence. Others will argue that the voters should be the ones to decide which judges they want to preside over the intimate details of a case that may forever impact their lives. Until there is a change, Illinois judges and judicial candidates remain subject to the electoral process and should note that the political climate can be unpredictable, callous, and merciless depending upon one’s party affiliation, geographic location, and practice area. In addition, all judicial candidates, whether sitting judges or attorneys, are subject to stringent ethical rules, which must be followed. Failure to do so may result in disciplinary action, as illustrated below.
Before turning to specific case examples, we will examine some top basic rules that all candidates should be aware of. First, if you are an attorney and are considering running for a judicial office, not only are you bound by the Rules of Professional Responsibility, but you are also bound by the Code of Judicial Conduct. (See Rule 8.2(b), which provides: “A lawyer who is a candidate for judicial office shall comply with the applicable provisions of the Code of Judicial Conduct.”) Often times, attorneys do not realize they have committed an ethical violation until it is brought to their attention. Sitting judges already know this rule but, for instance, lawyers running for judicial office may not personally ask for and may not personally receive financial contributions. This means you, individually, cannot ask people to attend your fundraiser, nor may you indirectly ask them to attend by posting the event on your personal Facebook/social media page or by personally handing them an invitation. If someone wants to hand you a check in support of your election, you may not personally accept it. You must direct that person (as uncomfortable as it may be) to forward the check to your campaign committee or someone other than you who may then forward it to your committee. Under no circumstance, whether anyone is watching or not, should you tell yourself it is okay to violate this rule. If you start to tell yourself that story, then perhaps you need to ask yourself if you are truly ready for the responsibilities that accompany this honorable position. Judges are held to a higher standard and your integrity must be impeccable.
Second, if you are fortunate, or unfortunate, enough to have an opponent, realize that regardless of your qualifications and experience, the opposition may try to minimize those qualifications and convince the general public that you are not worthy to hold the prestigious office of judge. This applies equally to sitting judges, who may already hold that position due to a merit-based appointment. Thus, if you have an opponent and choose to run commercials and/or ads or distribute mailers or post on social media websites, you and your committee have to decide whether you are going to run on your own credentials, experience, and record, or whether you are going to treat this judicial election like most other political elections and take the negative, “win at all cost” approach by primarily criticizing your opponent, personally and professionally.
Regardless of which approach you choose, make sure your content is 100 percent accurate and make sure you are able to look at yourself each day in the mirror and feel proud of the approach you have selected. Be forewarned though, that if you and/or your committee make any misrepresentation and/or are dishonest, your conduct may require members of the legal community (and your opponent) to report your misconduct. (See Rule 8.3 and Rule 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentations) of the Illinois Rules of Professional Responsibility.)
The beckoning beam of light that should guide all attorneys running for a judgeship is found in Rule 8.2(a) of the Code of Professional Conduct, which states “[a] lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory office or public legal officer, or of a candidate for election or appointment to judicial or legal office.” All judicial candidates shall also follow Rule 67, Canon 7 (A), which reads “... (3) A candidate for 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; … [and] (d) shall not: ... (ii) knowingly misrepresent the identity, qualifications, present position or other fact concerning the candidate or an opponent."
Thus, if you state and/or print/post something misleading and/or inaccurate about your opponent or your opponent’s record, not only must that conduct be reported, but you may also be subject to a defamation lawsuit, depending upon the severity. Remember… most reported misconduct to the Attorney Registration Disciplinary Commission (ARDC) is based on an attorney’s negligent misrepresentation about his/her own candidacy or some flagrant misrepresentation about the opponent. This is a judicial race. You are held to the highest level of integrity and ethical standards. You should expect nothing less from your committee and those supporting you. So if you choose to be a “Negative-Nelly,” proceed with caution because once you choose the path of attack, your opponent may have no choice but to defend him/herself and in so doing, may perhaps have to reveal negative things that have happened in your legal career. In the end, it is best to just stick to your record, your credentials, and your qualifications. Leave the rest to the voters.
Third, recognize you should not misuse or misconstrue information from the bar poll results, nor should you bank your entire campaign on the bar polls, which are often times viewed as a popularity contest, unreliable, and a sword in contested elections. Surely you have more to rely upon than just percentage points from a small group of individuals who chose to take the time to complete them. While the anonymous bar polls can provide valuable information to the voters, the polls can also create a lot of confusion and/or leave unanswered questions, especially when a sitting judge is running against a non-sitting judge. For instance, the anonymous bar poll asks the individual completing the bar poll if that person has sufficient, first-hand information about the candidate. What the bar poll does not ask is the following: 1) whether the individual has ever appeared before the sitting judge and if so, how many times; 2) whether the surveyor has ever had any cases with or against the attorney running for judicial office, and if so how many cases; 3) how many years of legal experience the surveyor has; 4) what is the surveyor’s primary practice of law, and 5) whether the surveyor has ever sought out or applied for a judicial office. Why does any of this matter? It matters because there is no way to gauge the validity of the responses or how much weight should be given, yet a candidate in a contested election can distort the findings to his/her advantage and/or recruit others from outside the circuit to complete a ballot without any repercussions as to the truthfulness of those responses.
More specifically, what does first-hand knowledge mean? Does it mean the responses are based on actual court appearances before the judge and/or having had a case with or against the attorney candidate; or … are the responses based on hearsay without any direct involvement with the candidate? And if it is based on first-hand knowledge, is the surveyor’s response based on a one-time favorable or unfavorable encounter, or is it based on multiple appearances/dealings? Also, when asked to survey the candidates’ legal ability, it is important to know the surveyor’s primary practice area. For instance, if a candidate primarily handles criminal law matters but the vacancy is to fill a family/domestic relations call, then a family law attorney might mark “no” under legal ability because the applicant has zero experience in that particular field. Another defect with the bar poll is that it only allows the surveyor to indicate “yes” or “no” under each category. Lawyers and judges are trained to analyze and consider many different scenarios. Forcing the surveyor to select either “yes” or “no” deprives that person from exercising a more careful, thorough analysis of each category.
One final point with regard to the bar polls. Remember … ISBA Judicial Advisory Polls Manual and Committee meetings make it clear that the polls are not to be used to compare candidates and to rank them against one another, but to rate individuals on his/her own merit. Often times, a candidate will send out literature or run a commercial stating, “Attorney X or Judge Y scored higher than his/her opponent in all categories.” This is not an appropriate use of the bar polls, especially if and when both candidates receive the minimum score to be “recommended.” (Keep in mind, a candidate needs only 65% favorable responses to be recommended for the position, compared to 60% of the vote to be retained in a general election.) Thus, do not be tempted to violate this policy by comparing your scores with other candidates, especially considering most bar polls are done before the primary election and before the list of candidates has been narrowed down. Think about this - if the goal is to truly educate the public, a subsequent poll closer to the election should be done once some of the political jockeying has been removed. So, again… if you choose to run your entire campaign on your bar poll results and use abusive, misleading tactics, just know that your opponent may be inclined to further educate the public and media by pointing out all these other perceived defects.
Examples of Disciplinary Cases
While there have only been a few formal disciplinary cases involving misconduct by judicial candidates during the course of an election, the ARDC receives a fair number of complaints and reports about election conduct during each election period. The disciplinary cases involving conduct by lawyers in judicial campaigns are summarized below:
False Statement in Campaign Mailer
In In re Duebbert, M.R. 27475, 2013PR00127 (September 21, 2015), an attorney running for judge in the 20th Judicial Circuit was charged with violating the rules when he sent a campaign flyer out that contained false and misleading statements about Duebbert’s opponent, a former assistant public defender and current associate judge. The campaign flyer stated that a man served 12 years in prison for a crime he did not commit due to his opponent’s “negligent” representation of the man. In fact, the opponent never represented the man and the flyer misquoted the findings of the 7th Circuit Court of Appeals in the wrongful conviction case. The hearing panel found that Duebbert violated Rule 8.4(c) by making a false statement; Rule 8.2(a) by making a false or reckless statement about a judge; and Rule 8.2(b) for violating the Code of Judicial Conduct as a candidate for judicial office. He was censured by the Illinois Supreme Court.
Disclosure of Confidential Information
The conduct which gave rise to the disciplinary case in In re Gregorich, M.R. 12998, 1995PR00436 (January 30, 1997) was the disclosure of confidential information by a judicial candidate. Gregorich had worked as a staff attorney for the Illinois Appellate Court before he declared his candidacy to run in the primary against a sitting appellate court justice in the district where he had previously worked as a staff attorney. During the campaign, Gregorich disclosed to the press an internal memo that had been circulated by the justices and obtained by Gregorich while he was employed at the court. At a press conference, Gregorich used the memo to claim that the justice he was running against was “inept” at handling civil cases. The hearing board found a number of disciplinary violations including dishonesty and conduct prejudicial to the administration of justice. Gregorich did not participate in the disciplinary proceedings and he was suspended for four years and until further order of the Court.
False Statements in Response to a “Not Qualified” Rating
In In re Morask, M.R. 26061, 2010PR00136 (September 25, 2013), a judicial candidate was disqualified for making false statements during a judicial campaign in response to a negative rating from the Chicago Council of Lawyers. The Council found Morask “not qualified” in part because, as an assistant state’s attorney, she had been criticized on a number of occasions by reviewing courts for possible prosecutorial misconduct. In response, she sent out an email to a blogger in which she claimed that she had a hearing before the ARDC and was “completely cleared” of any prosecutorial misconduct. The blogger posted the email on his blog. Some of the statements in Morask’s email were false including the fact that she had not been completely cleared by the ARDC; she had been admonished. She was suspended for 30 days for the false statements and other misconduct.
Improper Judicial Campaign Contributions
In In re Fazioli, M.R. 19580, 2001PR00019 (September 27, 2004) an attorney who was interested in becoming a judge, persuaded two attorneys to make $5,000 contributions for the campaign of a candidate for Illinois Supreme Court Justice. Fazioli then reimbursed each attorney for their contributions, and one of the attorneys told the Judge’s campaign manager that the contributions were actually from Fazioli. The contributions were returned, and Fazioli and the attorneys were charged by the ARDC. The findings against Fazioli included criminal conduct for violating election laws, dishonesty and conduct prejudicial to the administration of justice. Fazioli was suspended for three years.
As the country becomes more politically divided, current judges and judicial candidates need to remember that as the third equal—independent—branch of government, our decisions cannot be lobbied, bought, and/or negotiated for on behalf of special interest groups. We cannot personally accept financial contributions, nor can we show favoritism toward certain political leaders. We take a solemn oath to uphold the laws of the land and the Constitution—even if doing so makes us “unpopular.” That is what judicial independence looks like. But as we approach election cycles, we quickly realize that politics do play a role. It is up to us, the candidates, though to decide to what degree. Will you be the candidate that lets selfish desires, revenge, and the “win at all costs” attitude guide your campaign or will you turn toward your moral, ethical compass to point you in the right direction?
As you wrestle with that question, make sure you study and know the Professional Rules of Responsibility and the Judicial Code of Conduct as you decide whether to run for judicial office or not. As explained herein, depending upon where you reside, what your political party affiliation is, and whether you are a sitting or a non-sitting judge, the electoral process can be a bumpy ride. Give the voters something to be proud of. Give them a reason to trust the judiciary’s independence and impartiality.
If you have any concerns or questions about running for judicial office, you may review the judicial ethics opinions on the Illinois Judges Association’s website at www.ija.org/opinion-list. Alternatively, you may contact a member of the Illinois Judicial Ethics Committee or the ARDC Ethics Inquiry Program for guidance. Best Wishes...