The first count of the complaint charged basically that the six respondents violated specified disciplinary rules by their conduct through a political committee that allegedly distributed false statements concerning two Judges who are Judges of the third judicial circuit and who were, as of August 1980, candidates for retention in office at the November 4, 1980, election. One of the Judges was assigned to hear matters in Madison County and the other to matters in Bond County. It was charged that through the respondents a committee had been formed to oppose the retention of the two Judges.
SUPREME COURT OF ILLINOIS
517 N.E.2d 1065, 118 Ill. 2d 489, 115 Ill. Dec. 379 1987.IL.1893
JUSTICE WARD delivered the opinion of the court.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WARD
The Administrator of the Attorney Registration and Disciplinary Commission filed a two-count complaint on April 6, 1984, charging William Starnes Beatty, Morris B. Chapman, John Gordon Carlson, Lowell Thomas Lakin, William Wallace Schooley, Jr., and Leon G. Scroggins, with violating the Illinois Code of Professional Responsibility.
Count I charged that the six attorneys violated Rule 1 -- 101(a)(2) by circumventing a disciplinary rule through the actions of another; engaged in conduct involving fraud, deceit, or misrepresentation in violation of Rule 1 -- 102(a)(4); engaged in conduct which is prejudicial to the administration of Justice in violation of Rule 1 -- 102(a)(5); violated Rule 8 -- 102(a) by knowingly making false statements concerning the qualifications of a candidate for election or appointment to a judicial office; violated Rule 8 -- 102(b) by knowingly making false accusations against a Judge; violated canon 9 by engaging in conduct involving the appearance of impropriety; and engaged in conduct which brings the court and judicial profession into disrepute.
Count II of the complaint charged that respondents Chapman and Carlson hired an investigator to conduct a surveillance of an appellate court Judge before whom they had appeals pending and that they sent the confidential report of the surveillance to the administrator of the Illinois courts. This count charged that respondents Chapman and Carlson, in violation of Rule 1 -- 102(a)(5), engaged in conduct which was prejudicial to the administration of Justice; that they violated Rule 9 -- 101 by engaging in conduct involving the appearance of impropriety, and in conduct which brought the court and the legal profession into disrepute.
On March 1, 1985, on the respondents' motion, a panel of the Hearing Board of the Commission dismissed the complaint for failure to state a cause of action and granted the Administrator leave to file an amended complaint. On April 15, 1985, the Administrator filed a first amended complaint and the respondents again moved to dismiss the complaint. The hearing panel Judged that this complaint, too, failed to state a cause of action and dismissed the amended complaint with prejudice on September 11, 1985. The Administrator filed exceptions with the Review Board to the hearing panel's action, and after briefing and argument the Board entered an order stating that it "affirms the Memorandum Opinion and Order of the Hearing Board that the First Amended Complaint be dismissed with prejudice and adopts the rationale of the Memorandum Opinion and Order of the Hearing Board which is attached hereto." The chairman and three members of the Review Board joined in entering that order; two members recommended that the complaint be remanded for hearing and three members did not participate. (We would note that the Administrator, in discussing the nature of the case in his brief, makes a brief statement that the order of the Review Board was not the decision of the Board, as Attorney Registration and Disciplinary Commission Rule 753(d) states that the concurrence of not less than five members of the Board is necessary for a decision. It is not necessary that here we examine and discuss exhaustively the circumstances under which the rule will be literally applied and what is a "decision." It will be sufficient to state that under circumstances that appear here, including, as the panel's opinion put it, the "pendency of charges for an inordinate period of time," the question is whether the complaint did state a cause of action, and this court will examine and decide the question.)
Count I of the complaint set out that in August or September 1980 each of the respondents attended one or more meetings in the office of respondent Schooley and it was decided to oppose the retention of two circuit court Judges. One Judge was to be opposed upon their claim that he was overly lenient in sentencing in criminal cases and the other on the claimed ground he was not a productive Judge. The respondents decided to form a committee of non-lawyers to prepare anti-retention statements based on the records of the clerk of the third circuit. Edward Nalefski, who was the office manager for the Chapman and Carlson law firm, was directed by the respondents to organize and operate the anti-retention activity of the committee, which was named the "Committee for an Improved Judiciary." Nalefski, after September 18, 1980, when the committee was named, indicated to voters of Madison and Bond Counties that the membership of the committee consisted of himself and six other nonlawyers. Count I alleged that Nalefski held himself out as the secretary-treasurer of the committee and the other members of the committee included individuals recommended by the respondents. Most of the funds, $26,900 of $27,930 in cash contributions, were provided by respondents Schooley, Lakin, Scroggins, Chapman and Carlson. On October 12, 1980, respondent Lakin hired Michael Manning to assist Nalefski and Manning and Nalefski prepared and disseminated statements in furtherance of the anti-retention efforts. Respondent Beatty allegedly, on October 22, 1980, assisted Nalefski in the preparation of one such statement. It alleged that on October 17, 1980, Nalefski complained that he was having difficulty in gaining access to records of cases over which one of the Judges presided and that Chapman prepared a petition for a writ of mandamus. On October 30 when the petition was denied, Carlson appeared in behalf of the petitioner Nalefski.
The complaint further stated that between October 22, 1980, and November 4, 1980, under the direction of respondents, Nalefski disseminated various statements in opposition to the two Judges' campaigns for retention. These included letters to voters and statements to the media. The complaint charged that the statements were false in that they purported to be statements of a committee of nonlawyers. The complaint charged that the statements issued included ones that falsely represented one of the Judge's sentencing record, including a failure to disclose that in many of the cases the sentence was imposed at the recommendation of the State's Attorney pursuant to a plea agreement and that the complaint charged some of the statements falsely stated the percentage of convictions in which the Judge had imposed probation rather than incarceration.
The statements included a claim that the other Judge had tried only 13 cases to verdict in Bond County over the prior six years. It was said that the statement was false in that that number referred only to civil cases in which money damages were sought and did not include other matters over which the Judge had presided.
The complaint alleged that Nalefski played recordings of certain of the statements referred to "for certain of the respondents, including but not limited to Chapman, Carlson, Schooley and Beatty." The complaint said that supporters of one of the Judges issued press releases criticizing the accuracy of the statements and Manning was a participant at a press conference at which he expressed concern regarding the accuracy of the statistics in the committee's statements. The complaint said that on or before 1980 the respondents became aware of this criticism and that Schooley, Lakin and Beatty talked with Nalefski or Manning "regarding the matter"; that was the extent of the allegation. As of the date of the election, the respondents had not taken any action to correct the statements described and the complaints concluded that, "[a]s a result of the above outlined direction, the authorization and support given by the respondents to the activities of Nalefski outlined above, the respondents ...