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Unclear on the concept

Thursday, May 26, 2022 - Posted by Rich Miller

* Background is here if you need it. From Illinois Supreme Court Rule 67 - Canon 7 of the Code of Judicial Conduct...

A candidate for a judicial office … shall not:

(i) make statements that commit or appear to commit the candidate with respect to cases, controversies or issues within cases that are likely to come before the court

* With that in mind, notice the Supreme Court candidate’s use of a #ProChoice hashtag…


* And Rotering isn’t the only Supreme Court candidate who’s trying to get the message out on this particular topic. This example from the 3rd District a few weeks ago doesn’t appear to be an obvious violation of the canon, but it’s why Personal PAC and other groups are so anxious about the court’s balance…

       

29 Comments
  1. - downstate dem - Thursday, May 26, 22 @ 12:17 pm:

    “…cases that are likely to come before the court”

    constitutional challenges to abortion are in federal court.


  2. - Rich Miller - Thursday, May 26, 22 @ 12:21 pm:

    ===abortion are in federal court===

    The Illinois Supreme Court has heard abortion cases.


  3. - Rich Miller - Thursday, May 26, 22 @ 12:22 pm:

    Also, too, if this wasn’t a potential Illinois judicial issue, then Personal PAC wouldn’t be involved whatsoever in the race.


  4. - Moe Berg - Thursday, May 26, 22 @ 12:28 pm:

    It’s a very quaint idea that judges are not every bit as politically partisan as executive and legislative branch officials.

    That’s true from the US Supreme Court through the Illinois Supreme Court all the way down to the county traffic court judge.

    The laws themselves are partisan and constructed by partisans. They are neither holy writ nor scientific principles of the universe.


  5. - Ron Burgundy - Thursday, May 26, 22 @ 12:30 pm:

    -Also, too, if this wasn’t a potential Illinois judicial issue, then Personal PAC wouldn’t be involved whatsoever in the race.-

    Right. Won’t they be relieved that abortion is not likely to come before the Illinois Supreme Court in the next decade? Same some time and money.


  6. - vern - Thursday, May 26, 22 @ 12:30 pm:

    from the canon: “shall prohibit employees and officials who serve at the pleasure of the candidate, and shall discourage other employees and officials subject to the candidate’s direction and control from doing on the candidate’s behalf what the candidate is prohibited from doing under the provisions of this Canon”

    One of Rochford’s prominent endorsers was in an earlier comments section announcing that Rochford is pro-choice (in all caps, even). Rochford’s campaign released two statements today with the words “pro-choice” in them. I think we’re deep into distinction-without-a-difference land here.

    But I actually think that’s all ok. I understand the purpose of the rule, but I personally would like to know which candidates would force my wife to give birth against her will before I vote for them. Pretty silly to elect judges but force all the candidates to be mystery boxes to voters.


  7. - Red Ketcher - Thursday, May 26, 22 @ 12:32 pm:

    https://www.chicagotribune.com/news/ct-xpm-2000-03-11-0003110039-story.html

    Former Bear Bob Thomas used the same approach to get elected to IL Sup Ct in 2000 and was on that Bench until 2020. Ethics Rules be darned.


  8. - Sue - Thursday, May 26, 22 @ 12:36 pm:

    Running as a pro- choice candidate for a Supreme Court vacancy in Illinois is akin to be in favor of Apple pie and motherhood. What are the chances the Illinois legislature would pass a bill impairing abortion rights. Every day Rotering is evidencing she has no qualification to be on the State S Court. Nancy - you aren’t running for a legislative office - maybe no one has informed her


  9. - Ron Burgundy - Thursday, May 26, 22 @ 12:43 pm:

    -What are the chances the Illinois legislature would pass a bill impairing abortion rights.-

    Not very good, but what are the chances of a conservative trial judge in some part of the state ruling that an existing Illinois law protecting reproductive rights violates the state constitution, and that case making its way up? Not zero.


  10. - Shytown - Thursday, May 26, 22 @ 12:49 pm:

    We should respect what sanctity we have left in our judicial system. Anyone running for judge should respect the canons as well as the oath that is taken as a judge. Hashtagging pro-choice is one thing if you’re running for mayor or governor state rep or senator or take any other pick of a legislative body. But for the Illinois Supreme Court? The highest court in the state? I think it speaks to what little Rotering knows about this office. it’s one thing to have pro-choice leaders like a planned Parenthood supporting rotering or these other pro-choice legislators coming out for Rochford to speak about their bonafides. But those seeking to sit on the bench should do a hard stop on publicly advocating on issues that they might have to adjudicate at some point when they sit in that seat.


  11. - SaulGoodman - Thursday, May 26, 22 @ 12:49 pm:

    Also, Sue, at least two others running in the same district are also running on abortion. Rochford literally out out a statement today touting her pro-choice supporters and the Repubs are talking about how anti-choice they are.


  12. - ;) - Thursday, May 26, 22 @ 1:27 pm:

    I smell and ARDC and JIB complaint, justifiably, being filed against Nancy Rotering. Appalling display of contempt and disregard for the judicial canons.


  13. - Kane County Cougar - Thursday, May 26, 22 @ 1:33 pm:

    I have said this before - Nancy Rotering is not only NOT a judge so has no experience to suggest she should be voted in for the Supreme Court but she also has NOT been in a courtroom as a practicing Attorney. For the person who wrote Nancy maybe thinks she is running for the legislative position is right but then again she tried that - multiple times and lost.


  14. - Amalia - Thursday, May 26, 22 @ 1:37 pm:

    wait, Rotering has not been in a courtroom as a practicing attorney? wow. as for the ARDC and JIB complaint, those things take forever. We are still waiting for Kim Foxx from Dan Webb’s referral and a decision on a judicial candidate who made a terrible error with blabbing on a website lying in 2008 was not decided until 2012.


  15. - Ron Burgundy - Thursday, May 26, 22 @ 1:43 pm:

    -wow. as for the ARDC and JIB complaint, those things take forever.-

    Yep. Most anyone will get out of that angle is to have a “concerned citizen” surrogate file them and maybe get a press pop out of it. Not likely to result in anything and certainly not in time to matter.


  16. - Homebody - Thursday, May 26, 22 @ 1:52 pm:

    On the other hand, I’ve always thought that was a dumb rule for judicial candidates. You absolutely should know who you’re voting for and where they stand on issues. I don’t want to vote for someone whose views on a particular legal issue are absolutely antithetical to mine.


  17. - illinifan - Thursday, May 26, 22 @ 2:02 pm:

    Homebody, judges in Illinois are supposed to be impartial according to the Code of Judicial Conduct. I don’t care what their personal views are, what is important is do they make decisions based on existing law. They also are required to file annual ethics disclosures and if there is a conflict of interest they are to recuse themselves from the case. The only court that I know of that does not have that requirement is the US Supreme Court and that should be fixed. Campaigning with a fixed view on a topic is the very opposite of this requirement and is disqualifying.


  18. - Rich Miller - Thursday, May 26, 22 @ 2:19 pm:

    ===I’ve always thought that was a dumb rule===

    Maybe so, but it’s a Supreme Court rule nonetheless.


  19. - Three Dimensional Checkers - Thursday, May 26, 22 @ 2:22 pm:

    I don’t think this is an ethics violation. The rule says “cases, controversies or issues within cases.” Legal cases and controversies are matters with specific facts and issues within cases are specific issues within the context of those facts. Judges write about their beliefs about the law all the time and being pro choice doesn’t even necessarily say anything one’s views about constitutional law. It is possible to believe that the right to an abortion should be protected by democracy and not the constitution. I can’t identify ISBA’s problem with Rotering, but I hope it is not this.


  20. - ;) - Thursday, May 26, 22 @ 2:42 pm:

    It’s is without a doubt a violation. And I’d say Nancy knows that and has been made aware of that by the fact she is now editing and deleting problematic parts from her tweets. And this is not the first instance of her running afoul of the rules the rest of us attorneys and other would be candidates are bound by.


  21. - exhausted - Thursday, May 26, 22 @ 3:05 pm:

    Abortion is very much an issue that is and will continue to be litigated in Illinois and require rulings by the Supreme Court. The leaked Alito opinion made it clear that the issue returns to the states. State legislatures will pass laws and state supreme courts will review them.


  22. - Sue - Thursday, May 26, 22 @ 3:13 pm:

    Thursday- you hit the nail on the head- the rest of us attorneys- sure Nancy retains her license and is in good standing/ but as far as being a full time practicing attorney- nope


  23. - Jake From Elwood - Thursday, May 26, 22 @ 3:39 pm:

    Cannot count number of signatures needed for her petition.
    Cannot avoid close calla on judicial ethics issues.
    Cannot demonstrate any recent legal or courtroom experience.
    Cannot expect my vote.


  24. - Yellow Dog Democrat - Thursday, May 26, 22 @ 4:22 pm:

    The SC rule barring judicial candidates from stating their judicial philosophy or where they stand on the issues was tossed 20 years ago, in Republican Party of Minnesota v. White.

    You do not give up your First Amendment right when you run for judge.

    You will still end up in an ethical quagmire if you state your opinion on how you would rule in a specific case that might come before you.

    But there is nothing wrong with saying “I am pro-gun” or “I am pro-life” or “I am Pro-choice”, “pro death penalty”, “pro-environment” or whatever. Frankly, I rather they just come out and say “I am pro-consumer” or “I am pro-business.”


  25. - duck duck goose - Thursday, May 26, 22 @ 4:27 pm:

    There is a lot of vagueness in Rule 67’s use of the word “issue” and in the phrase “likely to come before the court.” A political issue and a legal issue are seldom the same thing. I would think that a candidate can support or oppose abortion as a general political question without intimating how he or she would rule on a specific legal question coming before the court. After all, I doubt that it’s a violation to go to church on Sunday because might one day hear a religious expression case.

    On the other hand…come on[banned punctuation]. Can’t we expect our judicial candidates to at least try not to look bent?


  26. - lake county democrat - Thursday, May 26, 22 @ 4:35 pm:

    State court can rule on the U.S. Constitution, they just aren’t the final word.

    I think it violates at least the spirit of the rule and probably the letter. Then again, Clarence Thomas brazenly violates a federal *law* without consequence so…


  27. - Three Dimensional Checkers - Thursday, May 26, 22 @ 4:40 pm:

    ===The SC rule barring judicial candidates from stating their judicial philosophy or where they stand on the issues was tossed 20 years ago, in Republican Party of Minnesota v. White.===

    Good lawyering.

    If you don’t like Rotering, don’t vote for her. It’s undemocratic to try to bootstrap an ethics complaint because you don’t like her though.


  28. - Lakeview Lawyer - Thursday, May 26, 22 @ 5:07 pm:

    The state canon is limited by the Supreme Court’s decision noted by Yellow Dog, which ruled on the constitutionality of a similar judicial canon in Minnesota:

    Republican Party v. White, 536 U.S. 765 (2002)

    “the notion that the special context of electioneering justifies an abridgment of the right to speak out on disputed issues sets our First Amendment jurisprudence on its head. “Debate on the qualifications of candidates” is “at the core of our electoral process and of the First Amendment freedoms,” not at the edges.  Eu, 489 U.S. at 222-223 (internal quotation marks omitted). “The role that elected officials play in our society makes it all the more imperative that they be allowed freely to express themselves on matters of current public importance.” Wood v. Georgia, 370 U.S. 375, 395, 8 L. Ed. 2d 569, 82 S. Ct. 1364 (1962). “It is simply not the function of government to select which issues are worth discussing or debating in the course of a political campaign.” Brown, 456 U.S. at 60 (internal quotation marks omitted). We have never allowed the government to prohibit candidates from communicating relevant information to voters during an election.


  29. - Lawyers? Where? Here? - Thursday, May 26, 22 @ 10:43 pm:

    Seems to be a lot of self-professed lawyer-types here ignoring fundamental constitutional law. Political speech is at the apex of protected speech. You’re a candidate for a government position? That’s political. You’re speaking relative to that candidacy? That’s political speech. Judicial canons and codes of ethics are all well and good—but, imposing a prior restraint on political speech? Not quite. They may *furrow brows* and frown upon it, fine; but, restricting pure, content-based, *political* speech, through law? Come on, folks… that’s fundamental. I’d prefer to hear what those we elect have to say on as many topics as they’re inclined to address. We often seem to hear more in the silence.


Sorry, comments for this post are now closed.


* Today's number: 19
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