As AbusiveDiscretion‘s staff writers reported in July, Illinois is receiving a new Code of Judicial Conduct based substantially on the ABA’s Model Code of Judicial Conduct. The new code goes further to control its judges and is a direct rebuke against the state’s own judicial oversight system which has allowed an oppressive and dangerous culture of judicial retaliation.
The model code section 2.16(B) was adopted by Illinois without any substantial change and to which there is no counterpart in the existing-soon-to-be-former rules:
“(B) A judge shall not retaliate, directly or indirectly, against a person known or suspected to have assisted or cooperated with an investigation of a judge or lawyer.”
The model code section 2.3 for “Rule 2.3: Bias, Prejudice, and Harassment” has subparagraphs (A) through (D). So does the new one in the Lincoln state. But Illinois adds subparagraph (E):
“(E) A judge shall not retaliate against those who report violations of Rule 2.3.”
AbusiveDiscretion is not alone in its observance of the retributive nature of piqued judges who are reported. Even the powers-that-be had to augment the rules to control the otherwise out-of-control judiciary. Not once, but twice!
That’s because current complaints about Illinois judges generally fall into the abyss of the oversight body, the Judicial Inquiry Board (“JIB”). Well-known Illinois legal writer and podcaster, Dan Cotter gave his understanding from the Illinois legal community in 2020 in a LinkedIn comment that the “[JIB is not] very effective…”
The feckless JIB has created a huge disincentive to report judges to the JIB because the judges can – and absolutely do – retaliate against those who report them. The Illinois Supreme Court has had enough and forbade retaliation. Twice.
Alas, the new rules have highlighted two major issues. First, the anti-retaliation rule should be obvious and not require a new rule at all. Should a litigant report a judge, naturally the judge should know not to retaliate. That is a matter of basic fairness. Attorneys have had a tougher choice. They are required to report Illinois judges for violations of conduct based on Illinois Rule of Professional Conduct 8.3(b). Thus, Illinois’ retaliatory judiciary has forced attorneys between professional retaliation and professional misconduct for failure to report. It is precisely the very public backlash of one such case that led to the naming and creation of AbusiveDiscretion (¶¶ 58, 59, 75, 89(d)). The new rules became effective just after these issues were publicized. This may in small part be thanks to AbusiveDiscretion, but that part is infinitesimal relative to the pains visited upon those whom Illinois judges have punished, with impunity, for daring to hold them to judicial standards.
The second issue is more troublesome. Are Illinois judges this bad that they need to be told not to retaliate twice? Once for anything and another time for specific allegations?
Maybe Illinois didn’t need just new judicial rules but rather also new judges.