Opinion No. 94-14

June 17, 1994

TOPIC: Sitting judge as applicant for appointment to a non-judicial office.

DIGEST: Sitting judge may be an applicant for appointment to a non-judicial office by fellow judges in the same circuit.

REFERENCES: Illinois Supreme Court Rule 67A(2) of the Code of Judicial Conduct, Canon 7 (145 Ill.2d R.67); Illinois Supreme Court Rule 63 of the Code of Judicial Conduct, Canon 3 (145 Ill.2d R. 63); Illinois Supreme Court Rule 63B(1) of the Code of Judicial Conduct, Canon 3 (145 Ill.2d R. 63); Illinois Supreme Court Rule 63B(4) of the Code of Judicial Conduct, Canon 3 (145 Ill.2d R. 63).

FACTS

A sitting circuit judge is an applicant for a part-time public defender position. The judge has consulted with the other circuit judges about such an appointment, both formally and informally. The appointment is to be made by the elected judges in the circuit. The applicant will resign the judicial office if appointed.

QUESTIONS

1. Is the sitting judge barred from making the application because of the judicial office held, given that the application is conditioned upon retirement from the judiciary?

2. Should the appointing circuit judges refuse to appoint a fellow judge to a non-judicial position because the applicant is a sitting judge?

OPINION

QUESTION #1

A sitting judge is not barred from making an application for an appointment to a part-time public defender position. A sitting judge may not be a "candidate" for a non-judicial office. The office in question here, however, is to be filled by appointment and not in a primary or general election. Therefore resignation from judicial office, prior to applying for the position of public defender, is not mandated by Illinois Supreme Court Rule 67A(2). To demand resignation from judicial office prior to making application for such an appointment would be unfair to the applicant. In any case, resignation from judicial office contemporaneous with being appointed to the non-judicial office would avoid any judicial misconduct or other ethical improprieties.

QUESTION #2

In addition, it is ethically proper for fellow judges to vote to appoint one of their own to the office of public defender. Illinois Supreme Court Rule 63 provides: "The judge's judicial duties include all the duties of the judge's office prescribed by law." The duties of the judge include making various appointments, for example, probation officers and such. Judges are not barred from making the appointment in question here, and in fact are obligated to perform their administrative duties of the judicial office unless bias or some other conflict suggests that the judicial appointing officers should be disqualified. Illinois Supreme Court Rule 63B(1) provides:

A judge should diligently discharge the judge's administrative responsibilities, maintain professional competence in judicial administration, and facilitate the performance of the administrative responsibilities of other judges and court officials.

And Illinois Supreme Court Rule 63B(4) specifically mandates: "A judge should exercise the power of appointment on the basis of merit, avoiding nepotism and favoritism." The judges of the circuit can be expected to adhere to this ethical standard and their compliance with it will be facilitated to the extent the public is informed of the appointment process.