December 27, 2017

As the holiday season draws to a close and we prepare to greet the New Year, attention will soon turn to the upcoming elections. For the Illinois judiciary, this is an especially important time. Earlier this month I completed certification of the vacancies to be submitted to the Illinois State Board of Elections by the Court and reviewed certification of an additional vacancy from the Courts Commission. Those documents show that more than 80 circuit court vacancies will appear on primary ballots this March. That figure represents nearly 16% of our total circuit court bench. By the time of the general election in the fall, retentions will have pushed that percentage even higher. What that means is that when voters go to polls on November 6, 2018, they will be called upon to determine the composition of a substantial portion of the Illinois judiciary.

This, of course, is precisely how the framers of the Illinois Constitution, and the citizens who ratified it, hoped the process would work. The current Illinois Constitution, as with the Constitutions that preceded it, embodies the conviction that the best way to ensure a fair and independent judiciary is through open elections in which the people themselves, rather than political leadership from the other branches of government, determine who will sit in judgment of them if and when they come before the courts. A ballot filled with judicial candidates, as next year’s ballots will be, is an opportunity to reaffirm these principles. Illinoisans should welcome it.

What Illinoisans may not welcome, and in some parts of the state have come to dread, is the intense and incessant campaign advertising that now often accompanies judicial races. In a free society, citizens must be granted broad rights to express their views. The First Amendment demands it, and an informed electorate depends on it. But it comes at a price. During the past dozen years or so, our state has witnessed some of the costliest and most negative judicial campaigning in U.S. history.

The implications of this trend are not good. As I have noted on many occasions in the past, when judicial candidates are unjustly attacked to advance the personal political or financial interests of their opponents, the integrity of the judiciary is jeopardized. Instead of seeing the courts as what Harper Lee described as “the great levelers,” citizens may become convinced that we are merely the agents of particular political factions, business interests or special interest groups. Faith in the rule of law will be lost to suspicion and cynicism. That is not just bad news for the courts. It is disastrous for the system of checks and balances on which our system of government depends.

Rule 8.2(a) of the Code of Professional Conduct provides one means to combat the problem. It provides:  “[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.” Unfortunately, that prohibition is limited to lawyers. It does not reach falsehoods leveled against judges or candidates for judicial office by individuals, businesses or groups who lie beyond the reach of bar disciplinary authorities. And even as to lawyers, history has shown it to be an ineffective deterrent.

Since I first joined the Supreme Court well over a decade ago, various legal associations and other groups have talked about strategies for de-politicizing the judicial selection process. A number of proposals have been put forward, including overhauling the retention process, changing the length of judicial terms, and establishing a system of public financing of judicial elections. So far, none of the proposals has gained traction.

Whether reform will ever come is open to question. One thing we do know for sure is that it will not come soon enough to help in the current election cycle. We may therefore be in for another bumpy ride. Accordingly, I hope that everyone associated with the judicial branch, including the attorneys who appear before us, will do their utmost to defend judges, judicial candidates and court against unjust criticism and to refrain from engaging in such criticism themselves. In an era some have characterized as “post truth,” reassuring the public that it can still have confidence in the dedicated women and men who serve the Illinois judiciary has never been more important.

As the court system’s chief administrative officer, there are two final points I would like to make before the election season moves into full swing. First, I want to encourage all judges and candidates for judicial office to review Canon 7 of the Code of Judicial Conduct before engaging in political activity. That rule delineates what judges and judicial candidates may and may not do in terms of political activity and makes important distinctions based on whether or not the judge is running for judicial office in the current election cycle. The restrictions on soliciting campaign contributions for a candidate and publicly endorsing or publicly opposing candidates for public office warrant particular attention. Additional guidance, though not binding, may be found by consulting the ethics opinions issued by the Illinois Judges Association. These are available at www.ija.org/opinion-list.

Second, it is important that all state-paid employees serving the Supreme, Appellate and Circuit Courts be aware that they are subject to the Policy on Political Activities first adopted by the Supreme Court in 1993 and reaffirmed when we adopted the employees’ Code of Conduct in 2013. That policy provides:

“State-paid Judicial Branch employees serving the Supreme, Appellate and Circuit Courts shall not:

(1) become a candidate for nomination, or election to, or accept appointment to any public office;

(2) hold any office in, or solicit funds for any political organization; or,

(3) publicly endorse, publicly oppose, or solicit funds for candidates for public office.

This policy applies only to employees who stand for election by the public electorate at the state, county, municipal or other level of local government. (Emphasis in original.)

Except as indicated below, any employee who engages in any of the above activity shall
be deemed to have vacated his or her position and shall be discharged.

Employees subject to this policy may request a leave of absence to become a candidate for public office. Such requests shall be made to the Director of the Administrative Office of the Illinois Courts and shall not be unreasonably denied. A request for such leave of absence may, however, be denied if the leave would substantially interfere with the operational needs of the courts or the Administrative Office. Any leave granted under this paragraph shall be without pay. The decision of the Director to grant or deny a request for leave of absence to become a candidate is reviewable by the Supreme Court.”

Judges and judicial branch managers should take care to insure that their subordinates understand the policy’s provisions.

Happy New Year everyone, and if you are a candidate in one of the many 2018 judicial races, all best wishes.