The Courts Commission as we know it today was created in Article VI, Section 15(e) of the 1970 Illinois Constitution. It provides as follows:
(e) An independent Courts Commission is created consisting of one Supreme Court Judge selected by that Court as a member and one as an alternate, two Appellate Court Judges selected by that Court as members and three as alternates, two Circuit Judges selected by the Supreme Court as members and three as alternates, and two citizens selected by the Governor as members and two as alternates. Members and alternates who are Appellate Court Judges must each be from a different Judicial District. Members and alternates who are Circuit Judges must each be from a different Judicial District. Members and alternates of the Commission shall not be members of the Judicial Inquiry Board. The members of the Commission shall select a chairperson to serve a two-year term.
The Commission shall be convened permanently to hear complaints filed by the Judicial Inquiry Board. The Commission shall have authority after notice and public hearing, (1) to remove from office, suspend without pay, censure or reprimand a Judge or Associate Judge for willful misconduct in office, persistent failure to perform his or her duties, or other conduct that is prejudicial to the administration of justice or that brings the judicial office into disrepute, or (2) to suspend, with or without pay, or retire a Judge or Associate Judge who is physically or mentally unable to perform his or her duties.
Ill. Const. 1970, art. VI, § 15(e).
Prior to 1964, the 1870 Constitution had provided two seldom-used methods for removing judges from office during their term: impeachment (Ill. Const. 1870, art. IV, sec. 24, and art. V, sec. 15) and concurrent resolution of the Senate and House (Ill. Const. 1870, art. VI, sec. 30). Due to the inadequacy of these two methods, the 1964 judicial article adopted provisions for the establishment of a judicial disciplinary commission (Ill. Const. 1870, art. VI (1964), sec. 18). The commission was subject to the rules of procedure promulgated by this court and was to be convened only upon order of the chief justice or the Senate. (Ill. Const. 1870, art. VI (1964), sec. 18.) Pursuant to section 18 of the 1964 judicial article, this court promulgated Rule 51 (36 Ill.2d R. 51), which established the Illinois Courts Commission and prescribed the procedure by which the commission was to receive and hear complaints. Specifically, Rule 51(b) provided:
"If the Supreme Court determines there is reason to convene the commission, or upon request of the Senate, the Chief Justice shall order the commission to convene." (36 Ill.2d R. 51(b).)
The commission, therefore, was virtually subject to the complete discretion and control of this court.
Within a few years, it was recognized that the constitutional provisions were structurally and procedurally inadequate in that the commission had no authority or continuity of existence, and it lacked the administrative, investigative and enforcement staff necessary for its efficient operation. In June of 1969, a special joint committee of the Illinois and Chicago bar associations recommended revisions to Rule 51, and those recommendations were adopted by this court. (43 Ill.2d R. 51.) The revised Rule 51 provided that the commission be convened on a permanent basis. It assigned the Director of the Administrative Office of the Illinois Courts as permanent secretary for the commission with specified powers to receive and investigate charges and to direct the filing of complaints, and it also established procedures for hearing of the charges. The commission, however, was still subject to this court's supervision by virtue of the rule-making authority of the court.
Several months later, in Cusack v. Howlett
(1969), 44 Ill. 2d 233, an action which challenged the legislature's authority to promulgate standards of judicial ethics, the court held that, pursuant to the judicial article of 1964, the exclusive authority to prescribe standards of judicial conduct rested with the supreme court. Cusack was a clear and unambiguous recognition of this court's authority to regulate the conduct of judges, on and off the bench. Shortly thereafter, a special committee was formed by this court to develop extensive standards for judicial conduct and ethics. On January 30, 1970, this court, by order, adopted the rules recommended by that committee. (43 Ill.2d Rules 61 through 71.) These rules and standards, in large part, are the same rules and standards in effect today. See 65 Ill.2d Rules 61 through 71.
Against this background, the constitutional convention's Committee on Judiciary (Committee) considered the future interrelationship of the judicial disciplinary system and this court's authority to determine the rules of judicial conduct.
Recognizing the need to maintain an independent judiciary, the Committee recommended that this court, through its rule-making authority, continue to have the power to promulgate the rules of conduct by which all judges would be guided. (6 Record of Proceedings, Sixth Illinois Constitutional Convention 830-33 (Proceedings).) The Committee expressly concurred with the ruling in Cusack on this point and noted that it followed the "long standing tradition of internally imposed professional standards upon the entire legal profession." (6 Proceedings 831.) The Committee specifically observed the following:
"It should be noted that the Supreme Court, on January 30, 1970, adopted an order containing standards of judicial conduct and rules relating to non-judicial activities and interests, which it has been said, are the most comprehensive and all-inclusive limitations upon any judicial officers in this country. They were based upon a report of a special committee of distinguished lawyers, chaired by Dean John E. Cribbet of the University of Illinois College of Law. That report, as well as other professional judgment, views the principle of judicial self-regulation as essential to the integrity and independence of the judiciary. With that conclusion this Committee agrees." (6 Proceedings 833.)
After rejecting an attempt to vest the rule-making authority in the legislature (2 Proceedings 948), the convention delegates unanimously adopted the Committee's recommendation (2 Proceedings 960). This court was thereby vested with the exclusive authority to promulgate rules of judicial conduct for the judges of this State.
With respect to the judicial disciplinary system's investigative, prosecutorial, and adjudicative functions, the Committee and convention delegates expressly indicated that this court was to have no involvement. Two Committee proposals dealing with the judicial disciplinary system were submitted to the delegates. (6 Proceedings 849.) The majority proposal which, with minor revisions, became section 15 of article VI, took the position that, unlike the pre-1970 Courts Commission, an effective disciplinary system required that the prosecutorial and investigative functions be separate from the adjudicative function. (6 Proceedings 872-73.) The majority proposal therefore recommended the establishment of the Judicial Inquiry Board, which would receive or initiate complaints concerning any judge, conduct investigations, and file complaints with the Commission. (6 Proceedings 866.) Unlike the prior Courts Commission, the Board is completely independent of this court and its administrative director and staff. It has the authority to promulgate its own rules of procedure, appoint and direct its staff, and issue subpoenaes. Its budgetary appropriation is fully independent from that of this court. (Ill. Const. 1970, art. VI, sec. 15(d).) Under the majority proposal, the present Courts Commission was designed to perform the adjudicative function. Although it was initially recommended that this court prescribe the rules of procedure under which the Commission would operate, that recommendation was rejected by the delegates, and the Commission was thereafter vested with the authority to determine its own rules of procedure. (2 Proceedings 1189-90.) Also, as earlier noted, it was provided that the Commission's decisions be final and nonreviewable.
The minority proposal favored divorcing this court from any part of the adjudicative, prosecutorial, and investigative functions, but it strongly opposed the creation of a Judicial Inquiry Board. It charged that the creation of the Board, consisting of lawyers, judges and laymen, would erode public confidence in the judiciary "by enshrining in the Constitution a mechanism which clearly establishes a presumption that judicial officers cannot be trusted and that there must be a continuing, ongoing surveillance of the judicial system by an investigative body whose sole and only responsibility is to receive, initiate and investigate complaints against judicial officers." (6 Proceedings 915.) It was feared that the Board would become inquisitorial and accusatorial in a manner wholly unwarranted by the circumstances, and that great injustice would result from placing in the hands of laymen, not conversant with the factors and criteria by which complaints should be evaluated, the power to render judgment. (6 Proceedings 913, 916.)
In answer to the minority's expressed fears, the majority proposal stated that, by requiring the Board to focus on the standards set forth in section 15(c)(1) to determine whether the evidence warranted the filing of a complaint, the Board would become neither inquisitorial nor improperly accusatorial. (6 Proceedings 870.) The majority proposal specifically stated:
"Indeed the Committee envisions the informal resolution of many complaints by understandings reached with the judge or magistrate which are adequately remedial and where there will be no cause to proceed to a formal complaint. In these, as in other instances, the standards will be both helpful and necessary." (6 Proceedings 871.)
Significantly, the majority proposal further noted that, although the standards appeared general, the canons of judicial ethics, implemented by the courts, give judicial officers adequate notice of the kinds of conduct proscribed. (6 Proceedings 871.)
The standards set forth in section 15(c)(1) were not intended to serve as the grounds upon which a complaint would originate, as suggested by the Board herein, but, rather, were intended to serve only as a guide to the Board in determining whether an alleged violation of rules warranted the filing of a formal complaint. The grounds for a complaint are to be found within the framework of this court's rules of judicial conduct, while the determination of whether the evidence warrants the filing of a complaint rests with the Board. As quoted above, the Committee recognized that not all technical violations warrant the filing of a formal complaint, and the Board, as well as the Commission, were given stringent standards to assist them in determining when rule violations deserve discipline. (See also 65 Ill.2d R. 62, which recognizes inadvertent violations may be too insignificant to call for official action.) Also, as noted above, the Committee recognized that, absent rules defining the conduct which is subject to discipline, the standards, standing alone, could be subject to a constitutional attack on grounds of vagueness. The reality of this possibility was presented in Halleck. There the plaintiff argued that the phrase, "conduct which is prejudicial to the administration of justice or which brings the judicial office into disrepute," was unconstitutionally vague and overly broad. The court rejected this contention for the following reason:
"The provisions of section 11-1526(a)(2)(C) do not stand alone. The ABA Code of Judicial Conduct has been adopted by the Joint Committee on Judicial Administration in the District of Columbia. The Canons of that Code supply judges with ethical standards expected of them. Arguments in other jurisdictions that constitutional and statutory provisions for the discipline of judges were vague or overbroad have been rejected primarily on the ground that the Code of Judicial Conduct furnished sufficient specification of the judicial conduct which warrants disciplinary action. [Citations.] In the case at bar, the Commission's `Notice of Formal Proceedings,' stated that plaintiff's alleged conduct would, if proved, violate Canons 2A and 3A(3) of the Code of Judicial Conduct. This court concludes that the provisions of section 11-1526(a)(2)(C) are supplemented by the Code of Judicial Conduct, and so supplemented are not unconstitutionally vague or overbroad in violation of the Due Process Clause." (Halleck v. Berliner
(D.D.C. 1977), 427 F. Supp. 1225, 1240.)
Here, as in Halleck, absent the adoption of rules defining the conduct which is subject to discipline, the standards, standing alone, could be subject to a successful constitutional attack. The Committee recognized the need for greater specificity, and deliberately referred judicial officers to the court-adopted rules on judicial conduct. If judicial officers are to rely on the rules for guidance, then disciplinary actions should be limited to the conduct that violates the rules' expressed requirements and prohibitions.
Not only do we believe that this construction of section 15(c)(1) is completely consistent with the delegates' intent, but we feel that any other construction would effectively nullify section 13(a) of article VI, eliminate the decision-making function which the delegates unanimously intended this court to have, and jeopardize the integrity and independence of the judiciary which the delegates sought to protect. The Board has cited this court to no debates which indicate a contrary intent, and our research has disclosed none.
Accordingly, we hold that only conduct violative of the Supreme Court Rules of judicial conduct may be the subject of a complaint before the Commission.
People ex rel. Harrod v. Ill. Courts Com., 69 Ill. 2d 445, 464-470, 372 N.E.2d 53 (1977).