By DAVID R. MILLER

Constitutional ambiguity underlies judicial discipline confusion The 1970 Constitution set up the independent Judicial Inquiry Board to investigate misconduct by judges and report to another body established i by the Constitution: the Courts Commission, which has the power to discipline judges. The Constitution says the rulings of the commission are final. The system worked well until 1976 when the Illinois Supreme Court expunged a Courts Commission decision.

TEN YEARS ago a scandal caused the resignation of two Illinois Supreme Court judges. The 1970 Constitution set up a detailed judicial disciplinary system that was expected to deal with such problems. Instead, it has led to a battle between the judges and the disciplinary bodies with each side accusing the other of misreading the 1970 Constitution and grabbing power.

The issue was brought into sharp focus in 1977 when a trial judge was disciplined for, among other things, ordering long-haired male defendants to get short haircuts. In an unprecedented action, the Illinois Supreme Court directed the disciplinary order to be expunged, on the ground that the disciplinary commission had exceeded its constitutional mandate even though the 1970 Constitution states that the decisions of the commission are to be final.

The Supreme Court won that skirmish, but judicial policers have not given up in their attempt to bring the judges to closer account.

The old 1870 Constitution provided only one method of discipline for judges found guilty of misconduct: removal from office after a hearing and a vote of three-fourths of the total membership of each house of the General Assembly. Because this draconian remedy went unused, the 1962 revised Judicial Article for the 1870 Constitution, proposed by the General Assembly and approved by the voters, provided that a judge could be removed, retired for disability, or suspended without pay by a commission of Supreme, appellate and trial judges appointed by the Supreme and Appellate courts.

But this provision had serious shortcomings. The disciplinary commission had no independent staff to investigate charges of misconduct and could be convened only by order of the Supreme Court or at the request of the Senate. Thus, the commission could not consider charges against a judge without the consent of at least one of these two bodies.

An embarrassing situation
This led to an embarrassing situation in 1969 when a member of the public suggested in a letter to the Supreme Court that two Supreme Court judges had been influenced in a court decision by gifts to their families from persons involved in the case. Not only was there no independent body to investigate this charge, but one of the accused judges was the chairman of the disciplinary commission which would have considered

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the investigation. The Supreme Court solved the problem by going outside the established disciplinary system and appointing a blue-ribbon commission of lawyers. After investigating the facts, this commission recommended that the two judges resign. Although they did so, the scandal seemed to demonstrate the need for a disciplinary system that was independent of the Supreme Court.

The events of 1969 sparked a great deal of interest in judicial discipline at the 1970 Constitutional Convention. It quickly became clear that there were two opposing views on the subject. A majority of both the convention's Committee on Judiciary and the full convention felt that there were serious flaws in existing arrangements and wanted a more independent and effective disciplinary system. A minority thought the existing system adequate and accused the majority of trying to "get the judges."

As a result, the Judiciary Committee's proposals to the full convention suffered from a certain schizophrenia which was not cured in the finished Constitution. The committee decided to minimize the area of conflict by putting the noncontroversial parts of its proposed Judicial Article for the new Constitution into a Proposal Number 1 which was sent to the full convention in April 1970. This proposal included a provision that, with minor changes, became the present Constitution's Article VI, subsection 13(a) which states tersely: "The Supreme Court shall adopt rules of conduct for Judges and Associate Judges." This seems to imply that the Supreme Court should set the standards for discipline, and the committee's explanation accompanying Proposal Number 1 gave further support to that interpretation: "The Committee believes that legislative power to determine rules of conduct for the violation of which serious sanctions may be imposed upon judicial officers, would unduly threaten the independence of the judiciary [emphasis added]."

The committee's Proposal Number 2 issued in May, however, seemed to suggest the opposite. The committee had split on controversial issues including judicial disciplinary procedures, and Proposal Number 2 represented the views of the majority which wanted a strong disciplinary system. This proposal, which became Article VI, section 15 of the new Constitution, provides for two separate and independent disciplinary agencies: 1) a Judicial Inquiry Board composed of four non-lawyers and three lawyers (appointed by the governor) and two trial judges (appointed by the Supreme Court) and 2) a Courts Commission composed solely of judges. The Judicial Inquiry Board is charged with receiving and investigating allegations of misconduct by judges. It is to file a public complaint with the Courts Commission if a majority of its members find a reasonable basis to charge a judge with: "willful misconduct in office, persistent failure to perform his duties, or other conduct that is prejudicial to the administration of justice or that brings the judicial office into disrepute." The board is also responsible for declaring that a judge is unable to perform his duties.

The explanation accompanying Proposal Number 2 implied that the Judicial Inquiry Board and the Courts Commission were to determine for themselves whether a judge had engaged in misconduct, basing their decisions on the standards just quoted:

Conflicting sections
Thus while one part of the proposed Judicial Article said the Supreme Court should adopt rules of conduct for judges, another part said judges were to be evaluated by the disciplinary bodies under standards set forth in the Constitution itself. A minority of the Judiciary Committee, composed of three Chicago Democrats, sent to the full convention its alternative Proposal Number2A which recommended a weaker disciplinary system similar to the one already in existence under the 1962 constitutional revisions. This proposal mentioned the same standards for judges as the majority proposal. But delegate Odas Nicholson, speaking for the minority proposal before the full convention on May 22, 1970, implied that the Supreme Court rules would really govern because decisions made by the Courts Commission would be based on those rules.

Although no one specifically contradicted that last sentence by delegate Nicholson quoted above, no one seeking a stronger disciplinary system espoused it either, and the minority proposal fora rather weak system was soundly defeated. The majority proposal, as approved by the convention and the voters, provided for both a Judicial Inquiry Board and a Courts Commission. Furthermore, unlike the minority proposal, the majority proposal stated flatly: "The decision of the Commission shall be final" (1970 Constitution, Article VI, subsection 15(f)).

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Lurking behind the new Constitution's apparent inconsistency regarding the source of rules to govern judges is a more basic philosophical disagreement between the advocates of weak and strong judicial discipline. Should the disciplinary system deal only with extreme abuses of power and grossly unethical acts such as taking bribes? Or should it be a more broadly educational and upgrading force on the judiciary, admonishing and disciplining eccentric and overbearing judges too?

Weak or strong?
Good arguments can be made for each position. Those who want a rather weak disciplinary system dealing only with extreme abuses point out that judges may be our most important protection against tyranny and violation of personal rights. If they can be disciplined for merely eccentric and cantankerous behavior on the bench, they could in another day and with different membership on the disciplinary bodies be disciplined for courageously upholding personal rights or otherwise taking unpopular, but just, positions. Those who want more stringent discipline of judges, on the other hand, point out that most people's only exposure to the judicial system is a rare visit to the local courthouse for jury duty or a traffic charge and that discourteous, cranky behavior by trial judges can do far more to destroy public respect for the law than an occasional bribe-taking scandal, even in the Illinois Supreme Court.

In short, the dispute is the familiar one between those who want to leave well enough alone for fear that the attempt to reach perfection will do more harm than good, and those who are never satisfied with "well enough." During the new disciplinary system's first several years of operation this issue stayed in the background. The Judicial Inquiry Board filed 20 complaints with the Courts Commission against judges, and 19 of these were upheld with at least some discipline imposed. But the unresolved conflict came to a head again in 1977.

At issue were the standards by which judges are to be measured, an issue not clearly delineated by the 1970 Constitutional Convention. The Judicial Inquiry Board in its rule 4(c) stated that "In determining whether a reasonable basis exists" for charging a judge with misconduct, "the Board may be guided by (but shall not be limited to)" the standards and rules adopted by the Illinois Supreme Court. In 1976 the board filed a complaint with the Courts Commission against trial Judge Samuel G. Harrod III of Eureka, a small town a few miles east of Peoria and county seat of Woodford County. The complaint, and a supporting bill of particulars filed later, charged that Harrod had, on a number of occasions: 1) ordered convicted male defendants with long hair to get their hair cut short, 2) ordered persons put on probation to surrender their drivers' licenses to the court, for which they received a card issued by the court that identified them as probationers to any police officers who happened to stop them, and 3) ordered persons convicted of illegally transporting alcohol to pick up bottles and cans along the roadway. The board charged that these orders violated Supreme Court rule 61(c) (18), which provides in part:

Judge Harrod argued that his orders had not violated this rule because they were authorized by section 5-6-3 of Illinois' Unified Code of Corrections which stated, in part:

The Harrod case
The Courts Commission of one Supreme, two appellate, and two trial judges upheld the Judicial Inquiry Board's complaint as to the haircut and surrender-of-driver's-license orders. Concerning the statute just quoted, the commission stated:

The commission then criticized Judge Harrod for failing to "look beyond his literal interpretation of the word 'other' in an effort to determine the extent of his authority" and stated that "the most perfunctory investigation" would have demonstrated to Harrod his lack of authority to issue some of his orders. Although the commission did not mention the decision, an Illinois Appellate Court decision a few months before the commission's order had similarly held one of Harrod's haircut orders unauthorized by statute, but had mentioned only one criterion for "other conditions": that they be related to the offense charged. The Courts Commission ordered Harrod suspended without pay for one month for what it considered repeated violations of the Supreme Court rule quoted above, and conduct prejudicial to the administration of justice and bringing the judicial office into disrepute. One member of the Courts Commission, a trial judge, dissented on the ground that Judge Harrod's orders had been within the limits of judicial discretion in interpreting a not entirely clear statute.

Judge Harrod then petitioned the Illinois Supreme Court for a writ of mandamus requiring the Courts Commission to expunge its disciplinary order. (A mandamus is a common-law writ from a high court to a lower official or court commanding some action. Harrod was not making a direct appeal because none is allowed by the 1970 Constitution.) The Supreme Court at first denied the petition; then it changed its mind and directed the commission to expunge its order. (Supreme Court Judge Walter V. Schaefer, who had been chairman of the Courts Commission, retired before Harrod's petition came to the Supreme Court.)

In its opinion in the case (People ex rel. Harrod v. Illinois Courts Commission),

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issued late in 1977, the Supreme Court acknowledged the 1970 Constitution's provision that "The decision of the Commission shall be final." However, the court asserted that it had the power to review the decision to determine whether the commission had exceeded the powers given it by the 1970 Constitution. The opinion noted that the record of the 1970 Constitutional Convention "discloses a surprising lack of discussion concerning the interrelationship" of sections 13 and 15 of the Judicial Article of the Constitution, which respectively 1) authorize the Supreme Court to set rules of conduct for judges and 2) set forth standards for the Judicial Inquiry Board to use in deciding whether to file a complaint against a judge. Despite this admitted unclarity in the record, the Supreme Court reached the following crucial conclusion:

Having held that the Judicial Inquiry Board and Courts Commission had no power to act against a judge for any conduct not violating a Supreme Court rule, the court similarly stated that the board and commission had no power to interpret an ambiguous statute, but could only "apply the facts to the determined law" (emphasis in original). Although the commission had found Judge Harrod to have violated a Supreme Court rule, its decision on that issue had been based on its interpretation of the sentencing statute and thus, according to the court, was unauthorized. The court did not state whether the commission could or should rehear the case based on the Appellate Court decision which had held one of Harrod's haircut orders unauthorized. Thus the board and commission found themselves stripped of much of their power and uncertain of its extent.

The decision provoked a storm of criticism from the Judicial Inquiry Board. In a press release the board called the Harrod decision "an extraordinary misreading" of the Constitution which "rests upon a clearly erroneous analysis" and creates "a disciplinary system quite different from that intended by the Constitution." A member of the board in a press conference said the decision showed "the continuing hostility of the entire judiciary to the board and the very idea of effective discharge" of its authority. On the other hand, some lawyers leapt to the aid of the Supreme Court and, in at least one bar association publication, accused the lawyer members of the Judicial Inquiry Board of violating legal ethics by having the audacity to criticize the court. The article also hinted that the govenor has the power to remove the non-judge members of the board for malfeasance and that the General Assembly could cut the board's appropriation. State Rep. Anne Wilier (D., Hillside), a delegate at the 1970 Constitutional Convention and a member of the Judiciary Committee majority that had pushed for the strong disciplinary system, introduced in the House a resolution proposing a constitutional amendment to strengthen the independence of the system. The proposed amendment states explicitly that the board and commission should apply the standards set forth in the Constitution and that decisions of the commission "shall not be judicially reviewable directly or collaterally except as to charges that the Board or Commission has acted clearly without lawful authority."

Eventually the storm subsided. No lawyers were disbarred or judges removed from office; the board's appropriation was not cut, and the Constitution was not amended. Since then, the judicial disciplinary process has continued, and the Illinois Supreme Court (perhaps concerned lest it appear hostile to the Judicial Inquiry Board) has supported the board's right to conduct investigations of judges. Twice in 1978, associate judges of the Cook County trial court who were under investigation by the board went to court and obtained orders hampering the board's investigation; twice the board went to the Illinois Supreme Court and had those orders overturned. More recently the Judicial Inquiry Board has attempted to discipline judges for holding in contempt spectators who wore naughty T-shirts and for excluding from court news reporters who attempted to sketch undercover narcotics agents.

Basic question
Although many would argue that the Supreme Court's Harrod decision was wrong, it may have been beneficial in at least one respect. It avoids the potential problem that the Judicial Inquiry Board and Courts Commission might interpret a statute one way and the appellate courts another, leaving trial judges between Scylla and Charybdis. And it seems likely that any really outrageous behavior by a judge will violate a Supreme Court rule under anybody's interpretation (except, presumably, that of the judge in question). But the basic question still remains. Can a disciplinary system which has been reduced to trying to fit judges' behavior into categories already declared bad by a court be the strong, independent judicial disciplinary system envisioned by the majority of delegates at the 1970 Constitutional Convention and approved by the voters? Indeed it can be argued that although Odas Nicholson and others favoring a weaker system lost their battle in the convention, they have won in the courts.□

David R. Miller has been an assistant attorney general and is now a staff attorney for the Illinois Legislative Council.

12/ December 1979/ Illinois Issues