Original petition for mandamus.
MR. JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 26, 1978.
This is a petition for an original writ of mandamus filed with leave of this court by petitioner, Samuel G. Harrod III, a judge of the Eleventh Judicial Circuit, against respondents, members of the Illinois Courts> Commission (Commission), praying that the respondents be directed to expunge an order they entered which suspended petitioner from his judicial duties for one month without pay.
A disciplinary action was initiated by a complaint filed with the Commission by the Illinois Judicial Inquiry Board (Board). A hearing was held, and the Commission filed its final order on December 3, 1976. On December 13, 1976, the petitioner filed a motion for a rehearing and for a stay of the suspension order for 60 days, pending the filing of an action in this court. Petitioner, however, commenced serving his suspended term on December 15, pursuant to the Commission's order. On December 20, 1976, petitioner here filed a petition for leave to file for an original writ of prohibition, or, alternatively, for a writ of mandamus or for a writ of certiorari. On January 12, 1977, the Commission denied petitioner's motion for rehearing and, on January 14, 1977, he completed serving his period of suspension. We allowed petitioner leave to file for an original writ of mandamus. Leave was also granted for the filing of amicus curiae briefs by the Illinois State Bar Association, the Chicago Bar Association and the Illinois Judges Association on behalf of the petitioner, and by the Chicago Council of Lawyers on behalf of the Commission. The Board was granted leave to join in the action as an intervenor.
The judicial article of the 1970 Constitution provides, in part:
"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 duties, or other conduct that is prejudicial to the administration of justice or that brings the judicial office into disrepute * * *. Ill. Const. 1970, art. VI, sec. 15(e).
The complaint filed against petitioner charged him with willful misconduct in office, conduct prejudicial to the administration of justice, and conduct that brought the judicial office into disrepute. Specifically, it charged that petitioner, in sentencing male defendants, would, from time to time, in addition to imposing the payment of a fine and costs, order the defendants to obtain a haircut and to appear again in court for observation. Further, petitioner was charged with ordering persons placed on probation to surrender their driver's license to the clerk of the court and in return receive a card, which was to be carried with them at all times, identifying them as probationers. Petitioner also was charged with entering other unspecified sentences without authority of law. It was alleged that, in entering these sentences, the petitioner had willfully disregarded and had deliberately refused to follow the law, thereby repeatedly violating Supreme Court Rule 61(c)(18), which provides:
"In imposing sentence, a judge should follow the law and should not compel persons brought before him to submit to some act or discipline without authority of law, whether or not he may think it would have a beneficial corrective influence. He should endeavor to conform to a reasonable standard of punishment and should not seek popularity or publicity either by exceptional severity or by undue leniency." 58 Ill.2d R. 61(c)(18).
At the petitioner's request, the Board filed a bill of particulars. In addition to enumerating the sentencing orders set forth in the complaint, the bill cited three cases in which petitioner ordered defendants to collect discarded bottles and cans along the roadway as a sentence for convictions involving the illegal transportation of alcohol. The bill also cited two cases which did not involve the issuance of an order upon conviction. In People v. Whelan, No. 75-TR-1629, as part of an order requiring the defendant to appear in court and to show cause why his probation should not be revoked, the petitioner ordered the defendant to obtain a short haircut. In People v. Micheletti, No. 76-TR-2306, petitioner ordered the defendant, charged with driving while intoxicated and driving with a suspended or revoked license, to be held without bail on the grounds that, within a two-month period, he had twice been released on bail on identical charges and was still awaiting trial thereon. (Prior to the hearing before the Commission, petitioner stipulated that, in addition to the cases cited in the bill, there were 26 "haircut," 15 "driver's license," and 5 "bottle and can" sentencing orders.)
Petitioner filed an amended answer admitting the alleged facts, but denied the allegation that the orders were entered without authority of law. He moved to dismiss the complaint on the grounds that the Commission was without jurisdiction.
Petitioner and the Board thereafter submitted briefs to the Commission on the jurisdictional issue. Petitioner contended that the conditions ordered as part of either probation or conditional discharge were premised on his interpretation of the authority granted him pursuant to section 5-6-3(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005-6-3(b)), which provides, in part:
"(a) The conditions of probation and of conditional discharge shall be that the person:
(1) not violate any criminal statute of any jurisdiction; and
(2) make a report to and appear in person before such person or agency as directed by the court.
(b) The Court may in addition to other conditions require that the person: * * * [the section thereafter sets forth 10 other permissible conditions]." (Emphasis added.) (Ill. Rev. Stat. 1973, ch. 38, pars. 1005-6-3(a) and (b).)
At the time the complaint was filed, no appellate court had judicially interpreted the meaning of the phrase "in addition to other conditions." Petitioner argued that, based on his literal interpretation of these words, a court is permitted, in the exercise of its judicial discretion, to impose conditions other than those specifically enumerated. He contended that, at most, his orders were the result of an erroneous interpretation of the statute, appealable through the normal appellate process, and, therefore, not subject to a disciplinary action. With respect to the Micheletti case, petitioner stated that his refusal to grant bail was premised on the authority of People ex rel. Hemingway v. Elrod (1975), 60 Ill.2d 74.
It was also argued that the Commission was without jurisdiction to entertain an action which involved the actual exercise of judicial discretion, especially in cases, such as this, where the exercise of that discretion involved a statute which had never before been interpreted by an appellate court and which was, at the time, the subject of a pending appeal. See People v. Dunn (1976), 43 Ill. App.3d 94, a case involving one of the petitioner's haircut orders.
The Board, on the other hand, argued that the Commission had jurisdiction to discipline any misconduct which it found to be "willful" or "prejudicial to the administration of justice" or that "brings the judicial office into disrepute." The Board contended that petitioner's haircut orders were without authority of law in that they were imposed as punishment to remedy what petitioner considered to be the defendants' antisocial attitudes. The Board rejected petitioner's interpretation of section 5-6-3(b) and offered its own. Under its first construction, the Board argued that the word "other" simply referred to the two mandatory conditions set forth in paragraph (a), making the 10 permissible conditions additional to the two mandatory conditions. Under the alternative construction, the Board argued that the phrase "other conditions" meant conditions additional to the two mandatory and 10 permissive conditions, but of the same type as the 10 itemized conditions and directly related to the offenses involved. Pursuant to these interpretations, the Board contended that none of the petitioner's orders were issued with the authority of law. Finally, the Board argued that the mere fact that the orders were appealable did not prevent the Commission from entertaining the complaint, for, in some instances, the manner in which petitioner had enforced the haircut orders actually thwarted a meaningful appeal.
Following the filing of briefs, the Commission conducted a separate hearing on the jurisdictional question, but deferred its ruling pending the hearing of the evidence. In its final order, the Commission indicated that it recognized the importance of maintaining an independent judiciary, that the Commission was not a court of review, and that the appellate or supreme court might not agree with its decision as to a specific order or judgment. It held, however, that the mere fact the orders were appealable should not deprive it of jurisdiction, for many serious injustices can occur which the right of appeal cannot cure. The Commission concluded that it had jurisdiction to entertain a complaint based on orders which were subject to appellate review, when, as here, it determines that a gross abuse of judicial power had been demonstrated.
The Commission ordered dismissed the charge based upon the Micheletti case, finding it did not merit the imposition of discipline.
In considering petitioner's argument that his orders were premised on the authority granted him pursuant to section 5-6-3(b) of the Unified Code of Corrections, the Commission, at the outset, rejected both the Board's and the petitioner's interpretations of that section. Without citing People v. Dunn, which at that time had been decided, the Commission found, based on its own "sensible construction," that section 5-6-3(b) permitted the imposition of conditions other than those particularly enumerated, but that such additional conditions had to be directed toward rehabilitation, be reasonably related to the offense for which the probation was imposed, and not be unduly restrictive of personal liberties. In Dunn, the court held that other conditions were permitted under section 5-6-3(b), but such conditions had to be related to the crime charged. The court did not hold, as the Commission did, that the conditions had to be directed toward rehabilitation and not be unduly restrictive of personal liberties.
After declaring what the law was by its interpretation of the section, the Commission evaluated the evidence and dismissed the charges involving the "bottle-and-can" orders, but found the "haircut" and "driver's license" orders to be impermissible and without authority of law. It, therefore, found the charges of the complaint to have been proved, concluding that petitioner was "guilty of repeated violations of Supreme Court Rule 61(c)(18), as well as of conduct prejudicial to the administration of justice and conduct that brings the judicial office into disrepute." One of the Commission's five members dissented. The dissent opined the Commission was without jurisdiction in that the statute in question was subject to various interpretations, ...