The opinion of the court was delivered by: BERNARD WEISBERG
MEMORANDUM OPINION AND ORDER
These cases were filed by two candidates for judicial office in the State of Illinois. The cases were consolidated because both plaintiffs challenge the constitutionality of Rule 67(B)(1)(c) ("Rule 67(B)(1)(c)" or the "Rule") of the Illinois Code of Judicial Conduct (the "Code"). ILL. REV. STAT. ch. 110A, P 67(B)(1)(c).
Plaintiff Robert C. Buckley ("Justice Buckley") is a Justice of the Illinois Appellate Court. In 1990 Justice Buckley campaigned for election to the Illinois Supreme Court. The defendant Illinois Judicial Inquiry Board ("JIB") brought a complaint against Justice Buckley before the Illinois Courts Commission ("ICC") alleging that some of Justice Buckley's campaign statements violated Rule 67(B)(1)(c). Justice Buckley's defense was that Rule 67(B)(1)(c) is unconstitutional under both the United States Constitution and Illinois Constitution. The ICC found Justice Buckley's statements a violation of Rule 67(B)(1)(c) but declined to impose sanctions.
Plaintiff Anthony L. Young ("Young") is an attorney and a member of the Illinois General Assembly. Young is currently a candidate for Judge of the Circuit Court of Cook County. Young's complaint states that he wishes to make statements which presumably would violate Rule 67(B)(1)(c). Young asserts that he has refrained from making these campaign statements so as to avoid sanctions under Rule 67(B)(1)(c). Thus, Young believes his rights under the federal and state constitutions are being violated. Young has sued the JIB and the Illinois Attorney Registration and Disciplinary Commission ("ARDC"). Both plaintiffs seek declaratory and injunctive relief, which would in effect require a ruling by this court finding Rule 67(B)(1)(c) unconstitutional either on its face or in its application to plaintiffs, and an order enjoining defendants from enforcing the Rule. The Illinois Judges Association ("IJA") has moved to intervene on behalf of its members as plaintiff in the Justice Buckley case (No. 91 C 7635).
The IJA also seeks a declaratory judgment that Rule 67(B)(1)(c) is unconstitutional.
Plaintiffs have filed motions for summary judgment.
The motions were referred to Magistrate Judge Weisberg for a Report and Recommendation ("Report"). The Magistrate Judge has issued his Report. See Buckley v. Illinois Judicial Inquiry Board, et al., 1992 U.S. Dist. LEXIS 5728 (1992) (Weisberg, M.J.). The Magistrate Judge recommends denying plaintiffs' motions for summary judgment and recommends this court sua sponte grant summary judgment for defendants. Plaintiffs have filed timely objections to the Report. FED. R. CIV. P. 72(b). For the reasons discussed below, the court adopts the Magistrate Judge's Report and Recommendation, except that the court does not adopt the Report's conclusion regarding the court's jurisdiction over the IJA's intervening complaint. Accordingly, the court denies the plaintiffs' motions for summary judgment and sua sponte grants defendants summary judgment.
The facts and procedural history of these cases are discussed by Magistrate Judge Weisberg. See Report, at 2-9. As the Magistrate Judge correctly notes: "There are no disputed facts and the court has been asked to determine the constitutionality of [Rule 67(B)(1)(c)] as a matter of law." The parties do not object to this characterization. Therefore, we will not set forth the facts except as needed to support our analysis.
A district court judge is required to make a de novo review of any portion of a magistrate judge's recommendation on a dispositive motion. 28 U.S.C. § 636(b); FED. R. CIV. P. 72(b). Plaintiffs object to almost every legal conclusion made by the Magistrate Judge. Our review, then, is not limited to a single legal issue but extends to the entirety of plaintiffs' motions for summary judgment. A motion for summary judgment must be granted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). A party opposing a motion for summary judgment must set forth specific facts showing that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Schroeder v. Lufthansa German Airlines, 875 F.2d 613, 620 (7th Cir. 1989). A genuine issue of material fact exists only where there is sufficient evidence favoring the non-moving party to support a jury verdict for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). All reasonable factual inferences must be viewed in favor of the non-moving party. Holland v. Jefferson Nat'l. Life Ins. Co., 883 F.2d 1307, 1312 (7th Cir. 1989). If the evidence presented by the non-movant is merely colorable or is not sufficiently probative, summary judgment is appropriate. Wolf v. Fitchburg, 870 F.2d 1327, 1330 (7th Cir. 1989). The parties submit that this case does not involve disputed issues of material fact. Hence, the court's focus will be on which party is entitled to judgment as a matter of law.
B. Rule 67(B)(1)(c) and its application to Plaintiffs -- Standing and Case and Controversy.
Any discussion of these cases must begin with the regulation involved. Rule 67(B)(1)(c) states:
A candidate, including an incumbent judge, for a judicial office filed by election or retention
(c) should not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office; announce his views on disputed legal or political issues; or misrepresent his identity, qualifications, present position, or other fact; provided, however, that he may announce his views on measures to improve the law, the legal system, or the administration of justice, if, in doing so, he does not cast doubt on his capacity to decide impartially any issue that may come before him.
Rule 67(B)(1)(c) is enforced by two public agencies depending upon the position of the candidate involved. Against a sitting judge, such as Justice Buckley, Rule 67(B)(1)(c) is enforced by the JIB. The JIB brings charges of misconduct before the ICC, which is empowered to discipline and remove judges from office. ILL. CONST. art. IV, § 15(b)-(g). The ARDC enforces Rule 67(B)(1)(c) against a lawyer, such as Young, who is not a sitting judge running for judicial office.
Rule 67(B)(1)(c) may be divided into four sub-parts.
The opening clause of the Rule prohibits a candidate from pledging or promising specific conduct if elected, except that the candidate may promise "faithful and impartial performance" of his duties. We will refer to this clause as the pledge or promise provision. The second clause of the Rule prohibits a candidate from announcing views on disputed legal or political issues; we will refer to this clause as the disputed issues provision. The third clause prohibits a candidate from misrepresenting his
identity, qualifications or other facts. This provision will not be discussed as the plaintiffs have not raised any constitutional objections to this portion of the Rule. The last clause contains a proviso that a candidate may announce his views on measure to improve the law, the legal system, or the administration of justice so long as the candidate does not, by his announcement, cast doubt on his capacity to be impartial on any issue which may be presented to him while in office. We will refer to this clause as the proviso. The Magistrate Judge considered the constitutionality of each provision separately, which is as it should be. See Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 506-07, 86 L. Ed. 2d 394, 105 S. Ct. 2794 (1985).
1. Application of the Rule to Justice Buckley.
The JIB's complaint against Justice Buckley arises out of campaign materials distributed by Justice Buckley which stated that he had never authored an opinion reversing a rape conviction.
The JIB considered this an implicit pledge or promise to hold rape defendants to a higher standard of proof.
The ICC agreed but declined to sanction Justice Buckley because the statement, while "a violation of the Code, it is insubstantial, insignificant, and does not warrant the imposition of a reprimand." In re Justice Robert C. Buckley of the Illinois Appellate Court, No. 91-CC-1, slip op. at 4-5 (Oct. 25, 1991).
The ICC's opinion does not address Justice Buckley's constitutional defenses. The ICC denied the JIB's motion for reconsideration.
Justice Buckley sued in this court seeking a determination of the Rule's constitutionality and an injunction against its application. The Magistrate Judge found Justice Buckley had standing, a finding the parties do not dispute. See Report, at 9. The Magistrate Judge found Justice Buckley had a live case or controversy as to the pledge or promise provision, but did not have a live case or controversy as to the disputed issue provision. Justice Buckley contends that continued enforcement of Rule 67(B)(1)(c) "will . . . deprive . . . [him] of the opportunity to discuss issues [he] addressed as an Appellate Court Justice as they relate to [his] qualifications to sit on the Supreme Court of Illinois." Plaintiff's Motion for Summary Judgment, Affidavit of Robert C. Buckley, P 9. The Magistrate Judge concluded, however, that "since he has never been prosecuted for violating the disputed issues provision and Buckley has not identified any issue he wants to discuss, the record does not show 'an actual or imminent application of [that provision] sufficient to present the constitutional issues in "clean-cut and concrete form"'. Renne v. Geary, 111 S. Ct. , 2339 [(1991)]." Report, at 12-13.
A federal court is presumed to lack jurisdiction unless the contrary appears affirmatively from the record. Bender v. Williamsport Area School Dist., 475 U.S. 534, 546, 89 L. Ed. 2d 501, 106 S. Ct. 1326, reh'g denied, 476 U.S. 1132, 90 L. Ed. 2d 682, 106 S. Ct. 2003 (1986); King Bridge Co. v. Otoe County, 120 U.S. 225, 226, 30 L. Ed. 623, 7 S. Ct. 552 (1887). Article III of the Constitution limits the "judicial power" of a federal court to "cases" and "controversies." Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982).
The judicial power of the United States defined by Art. III is not an unconditioned authority to determine the constitutionality of legislative or executive acts. The power to declare the rights of individuals and to measure the authority of governments . . ., 'is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy.' Chicago & Grand Trunk R. Co. v. Wellman, 143 U.S. 339, 343, 36 L. Ed. 176, 12 S. Ct. 400 . . . (1892).
Valley Forge, 454 U.S. at 471. Thus, Article III requires a plaintiff to have "standing," see Warth v. Seldin, 422 U.S. 490, 498, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975), and an "actual injury redressable by the court," see Flast v. Cohen, 392 U.S. 83, 96, 20 L. Ed. 2d 947, 88 S. Ct. 1942 (1968). See also Valley Forge, 454 U.S. at 471-72. One who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of a the statute's operation or enforcement. Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298, 60 L. Ed. 2d 895, 99 S. Ct. 2301 (1979).
When [a] plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he "should not be required to await and undergo a criminal prosecution as the sole means of seeking relief." Doe v. Bolton, 410 U.S. 179, 188, 35 L. Ed. 2d 201, 93 S. Ct. 739 . . . (1973). But "persons having no fears of state prosecution except those that are imaginery or speculative, are not to be accepted as appropriate plaintiffs." Younger v. Harris, 401 U.S. 37, 42, 27 L. Ed. 2d 669, 91 S. Ct. 746 . . . (1971); Golden v. Zwickler, 394 U.S. 103, 22 L. Ed. 2d 113, 89 S. Ct. 956 . . . (1969).
Babbitt, 442 U.S. at 298.
Moreover, as a matter of prudential concern, federal courts require a plaintiff to assert only his own rights and interests and not base his claim on the rights and interest of third parties. Warth, 422 U.S. at 499. A plaintiff's complaint must fall within "'the zone of interest to be protected or regulated by the statute or constitutional guarantee in question.' Association of Data Processing Service Orgs. v. Camp, 397 U.S. 150, 153, 25 L. Ed. 2d 184, 90 S. Ct. 827 . . . (1970)." Valley Forge, 454 U.S. at 475. Finally, federal courts must "refrain . . . from adjudicating 'abstract questions of wide public significance' which amount to 'generalized grievances,' pervasively shared and most appropriately addressed in the representative branches." Valley Forge, 454 U.S. at 474-75. This having been said, "the usual rule that the courts should avoid constitutional adjudication whenever possible carries less weight in the First Amendment context." Sequoia Books, Inc. v. Ingemunson, 901 F.2d 630, 634 (7th Cir.), cert. denied, 112 L. Ed. 2d 398, 111 S. Ct. 387 (1990) (citing Secretary of Maryland v. J.H. Munson Co., 467 U.S. 947, 956, 81 L. Ed. 2d 786, 104 S. Ct. 2839 (1984)).
Justice Buckley objects to the Magistrate Judge's finding that he lacks a case or controversy with respect to the disputed issue provision. Justice Buckley notes that "it is exactly those issues which have come before him as an Appellate Court Justice (and which are likely to come before him in the future in his role as either an Appellate Court or Supreme Court Justice) which he has specifically identified as issues which he wishes to address in his campaign literature." Plaintiff Buckley's Objections to Magistrate Judge's Report and Recommendation on Plaintiffs' Motions for Summary Judgment, at 4 (emphasis original) [hereinafter Buckley Objections]. We think the Magistrate Judge has the better of this argument. That the JIB chose not to charge Justice Buckley under the disputed issue provisions is not dispositive. The JIB has shown no relunctance in enforcing the provisions of Rule 67(B)(1)(c). Nonetheless, Justice Buckley has not specifically identified what issues he wishes to discuss, which would place him within the ambit of the Rule. Justice Buckley points to campaign literature which states that "he 'consistently rules to protect the civil rights of working people on key issues of health, housing and employment,' and 'consistently rules to protect and expand womens' rights in the areas of health, domestic relations and sexual assault'. . . ." Buckley Objections, at 4. But these statements are not disputed issues so much as statements in the same vein as the rape opinion pledge. These statements implicitly indicate, if they indicate anything at all, that Justice Buckley will continue to rule in the manner suggested. The statements do not announce views on disputed legal or political issues and are not sufficient to present the constitutional issues in "clean-cut and concrete form". Justice Buckley's objection is overruled.
2. Application of the Rule to Young.
Young is in somewhat the opposite position as Justice Buckley. Young is a candidate for judge on the Seventh Subcircuit of the Circuit Court of Cook County. The general election is scheduled for November 3, 1992. Young states: "During the time period of the general election campaign, I wish to express my view on the issues which I believe are important to the people and voters of Illinois. These issues include, without limitation: capital punishment, abortion, the state's budget, and public school education." Plaintiff's Motion for Summary Judgment, Exhibit 1, Declaration of Anthony L. Young, at P 4 [hereinafter Young Affidavit]. Young also states that he wishes to "pledge to voters that [he] will try to eliminate delays in the judicial process and that [he] will seek to ensure that everyone is fully able to understand the judicial proceedings in which they are involved." Young Affidavit, at P 6. Young has not yet made any such statements and therefore has not provided any basis for ARDC intervention. However, Young states that he fears that if he expresses his views, he will be subject to sanction under Rule 67(B)(1)(c). Young Affidavit, P 5.
As with Justice Buckley, the Magistrate Judge found Young had standing to sue, and the parties have not disputed this finding. See Report, at 9. Converse to the finding in regards Justice Buckley, however, the Magistrate Judge found Young had a live case or controversy as to the disputed issue provision, but lacked a live case or controversy as to the pledge or promise provision. See Report, at 14-16. Young objects to the Magistrate Judge's finding that he lacks a live case or controversy as to the pledge or promise provision. See Objections of Plaintiff Anthony L. Young to Magistrate's Report and Recommendation, at 2-5 [hereinafter Young Objections]. Magistrate Judge Weisberg concluded Young lacked a live case and controversy as to the pledge or promise provision because Young's statements were "entirely consistent with" the single pledge allowed by Rule 67(B)(1)(c): a candidate may pledge or promise to give "faithful and impartial performance of the duties of office." Report, at 15. We agree with the Magistrate Judge that Young's statements are compatible with the pledge or promise provision. Further, the court also believes Young's statements come within the proviso of Rule 67(B)(1)(c). Young's actions to reduce delay and ensure that litigants understand the judicial process would essentially promote fairness and help to avoid any appearance of impartiality, goals explicitly authorized by the pledge or promise provision. Moreover, Young's actions would certainly be authorized by Rule 67(B)(1)(c)'s proviso that a candidate may "announce his view on measures to improve the law, the legal system, or the administration of justice. . . ." The Magistrate Judge correctly concluded that the cases cited by Young did not substantiate a credible threat of prosecution should Young make the statements suggested. Young's statement that he has refrained from making statements, and therefore, his speech has been "chilled" is too speculative to create a "real, earnest and vital controversy" such that this court would have jurisdiction over the claim. Young's objection is overruled.
3. Application of the Rule to the IJA.
The Magistrate Judge concluded that although the IJA had standing to sue on behalf of its members, the IJA's complaint engendered no live case or controversy as required for our subject matter jurisdiction. The IJA objects to this finding on two grounds. First, the Magistrate Judge mistakenly concluded "the IJA does not allege that any of its members have been prosecuted for violations of the Rule." Report, at 13. Justice Buckley is a member of the IJA. Hence, the IJA's statement that its members have been subject to prosecution under Rule 67(B)(1)(c) is true. IJA's Amended Intervening Complaint, at P 14. Consequently, the IJA's complaint presents a live case or controversy, at least as to the pledge or promise provision. As to the disputed issue provision, the IJA states its members wish to disseminate information during campaigns for election or retention which would "make known their experience, qualifications, basic judicial philosophy and other important information . . ." Statement of Material Facts Pursuant to Rule 12(m) in Support of Intervening Plaintiff's Motion for Summary Judgment, at P 13 [hereinafter IJA's Rule 12(m) Statement]. The Magistrate Judge concluded that this statement was insufficient to satisfy the case and controversy requirement. The IJA represents the interests of over 800 Illinois judges, all of whom are subject to Rule 67(B)(1)(c). We cannot say, especially given the somewhat relaxed standing requirement noted above in Sequoia Books, that the IJA's complaint presents no live case or controversy requirement as to the disputed issue provision. While the IJA's complaint may be somewhat ambiguous, the court believes it is sufficient to convey jurisdiction over the dispute raised.
The IJA's objection is sustained. The IJA's complaint raises a live case or controversy concerning the JIB's enforcement of Rule 67(B)(1)(c).
C. Constitutional Challenges
Having disposed of the plaintiffs' objections to the Magistrate Judge's conclusions regarding jurisdiction and justiciability, we now turn to the constitutional challenges to Rule 67(B)(1)(c). The First Amendment guarantees that "Congress shall make no law . . . abridging the freedom of speech. . . ." U.S. CONST. amend. I, § 2. The First Amendment applies to the states through the Fourteenth Amendment. Edwards v. South Carolina, 372 U.S. 229, 237-38, 9 L. Ed. 2d 697, 83 S. Ct. 680 (1963). Speech uttered as part of a political campaign for election to office is unquestionably protected by the First Amendment. Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214, 223, 103 L. Ed. 2d 271, 109 S. Ct. 1013 (1989); Stretton v. Disciplinary Bd. of Sup. Ct. of Pa., 944 F.2d 137, 141 (3d Cir. 1991).
The candidate, no less than any other person, has a First Amendment right to engage in the discussion of public issues and vigorously and tirelessly to advocate his own election and the election of other candidates. Indeed, it is of particular importance that candidates have the unfettered opportunity to make their views known so that the electorate may intelligently evaluate the candidates' personal qualities and their positions on vital public issues before choosing among them on election day.
Buckley v. Valeo, 424 U.S. 1, 52-53, 46 L. Ed. 2d 659, 96 S. Ct. 612 (1976) (per curiam); see also Monitor Patriot Co. v. Roy, 401 U.S. 265, 272, 28 L. Ed. 2d 35, 91 S. Ct. 621 (1971) (the First amendment has its fullest and most urgent application to speech uttered during campaign for political office).
Political speech, even that uttered by a candidate in an election, is not absolutely free of restriction by the state. United States Civil Serv. Comm'n v. National Ass'n of Letter Carriers, 413 U.S. 548, 556, 37 L. Ed. 2d 796, 93 S. Ct. 2880 (1973) (upholding Hatch Act prohibiting federal employees from being a partisan candidate for public office); Broadrick v. Oklahoma, 413 U.S. 601, 616-17, 37 L. Ed. 2d 830, 93 S. Ct. 2908 (1973) (upholding prohibition on state employees becoming candidates for paid public office); Morial v. Judiciary Comm'n of Louisiana, 565 F.2d 295, 306-07 (5th Cir. 1977), cert. denied, 435 U.S. 1013, 56 L. Ed. 2d 395, 98 S. Ct. 1887 (1978) (upholding Louisiana statute and judicial canon of conduct requiring state judges to resign their offices prior to becoming candidates for non-judicial office). But state restrictions on political speech are subject to exacting scrutiny by the courts. A restriction on a candidate's right to speak in the context of an election must overcome several hurdles. First, the restriction on First Amendment rights must be balanced against a state's legitimate and compelling interest in regulating the activity. Second, the restriction may not be so overbroad so as to prohibit protected speech. Last, the restriction may not be so vague as to not provide notice to persons that their conduct violates the restriction or to not provide a sufficiently clear standard to allow enforcement on a non-selective basis. Not surprisingly, the plaintiffs' objections center on these requirements and thus require discussion of each.
When a state regulation implicates First Amendment rights, a court must balance those interests against the state's legitimate interest in regulating the activity in question. Gentile v. State Bar of Nevada, 115 L. Ed. 2d 888, 111 S. Ct. 2720, 2745 (1991). Because Rule 67(B)(1)(c) restricts political speech, "achieving a balance requires the state to establish a compelling interest and [requires] the restriction to be narrowly tailored to serve that interest." Stretton, 944 F.2d at 141 (citing Brown v. Hartlage, 456 U.S. 45, 53, 71 L. Ed. 2d 732, 102 S. Ct. 1523 (1982)).
The Magistrate Judge identified several interest advanced by Rule 67(B)(1)(c): the right of litigants to an impartial judiciary; the right of litigants to an uninterested judiciary (in the sense that a judge does not owe financial or political allegiance to any outside concern). Report, at 18. Hence, the Magistrate Judge concluded that the State of Illinois has a compelling interest in regulating judicial elections so as to maintain "public confidence in judicial impartiality and integrity, since the perception of judicial partiality and corruption, whether true or not, breeds disrespect for the law and extralegal self-help." Report, at 18. The plaintiffs do not object to this portion of the Magistrate Judge's analysis. The plaintiffs do state that there are other compelling interest which should be considered and balanced with those stated in the Report. Justice Buckley, citing American Civil Liberties Union, Inc. v. The Florida Bar, 744 F. Supp. 1094 (N.D. Fla. 1990) among other authorities, argues that the state must protect the rights of voters to make "well-informed and well-reasoned voting decisions." Buckley Objections, at 7. Young suggests that the Magistrate Judge overstates the perils of leaving unprotected the public perception of judicial impartiality and integrity. Young Objections, at 17-19 (citing United States v. Grace, 461 U.S. 171, 75 L. Ed. 2d 736, 103 S. Ct. 1702 (1983)). These concerns were raised before Magistrate Judge Weisberg and were eloquently addressed in his Report. See Report, at 23. Justice Buckley's and Young's positions ignore the historical and practical difference between the judiciary and the other branches of government. Candidates for office in the executive or legislative branches of government represent people and interests markedly different from that embodied by a judicial office. The candidate for legislature who makes a promise which is later broken may be (and perhaps should be) turned out by the voters at the next election. "By contrast, the judicial system is based on the concept of individualized decisions on challenged conduct and interpretation of law enacted by the other branches of government." Stretton, 944 F.2d at 142. When making a decision resolving a dispute between parties to a lawsuit, a judge cannot allow himself to be swayed by public opinion on a disputed issue or to be controlled by a promise made to the electorate when campaigning for office. Our system of dispute resolution requires a judge to research and examine the precedents, apply the facts as presented by the lawsuit and then render an independent and objective decision.
The plaintiffs' citations do not support a contrary conclusion. In Grace, the Supreme Court held unconstitutional a statute prohibiting picketing and leafletting in or on the grounds of the United States Supreme Court building. The Court rejected the government's argument that the statute was justified on the grounds that "it [would] appear to the public that the Supreme Court is subject to outside influence or that picketing or marching, singly or in groups, is an acceptable or proper way of appealing to or influencing the Supreme Court." Grace, 461 U.S. at 183. The Court "seriously doubted" that picketing before the court building was any different from other forms of protected political expression and that, in any case, such picketing would not raise any public perception of influence on the Court. Grace, 461 U.S. at 183. The instant case is, of course, readily distinguishable. Here, we are concerned with the very real possibility that a promise or announcement of views by a judicial candidate will prevent or influence the resolution of a case before the judge. The Court distinctly recognized in Grace:
The federal courts represent an independent branch of the Government and that their decisionmaking process are different from those of the other branches. Court decisions are made on the record before them and in accordance with the applicable law. The views of the parties and of others are to be presented by briefs and oral argument. Courts are not subject to lobbying, judges do not entertain visitors in their chambers for the purpose of urging that cases be resolved one way or another, and they do not and should not respond to parades, picketing, or pressure groups.
Grace, 461 U.S. at 183. Justice Buckley's citation to American Civil Liberties Union v. The Florida Bar is equally unpersuasive. The district court in that case declared unconstitutional a judicial canon on campaign conduct identical to Rule 67(B)(1)(c) except for one important point: Rule 67(B)(1)(c)'s proviso allows a judicial candidate to announce his views on measures to improve the law, the legal system, or the administration of justice without fear of sanction. The Florida canon did not contain a similar proviso. The Florida canon "proscribed announcements on almost every issue that might be of interest to the public and the candidates in a judicial race," such that the district court found it was not the least restrictive means of effectively ensuring a fair and impartial judiciary. ACLU v. The Florida Bar, 744 F. Supp. at 1098-99. Clearly, Rule 67(B)(1)(c) is not an absolute prohibition on a judicial candidate's political speech. The Rule allows discussion on all the issues listed in the proviso. Moreover, when the Rule is subject to the narrow construction advanced by the Magistrate Judge, a subject which the court will more fully discuss below, it is clear that the Rule's disputed issue provision is to be applied only to statements concerning issues likely to come before the judge.
We conclude, therefore, the plaintiffs' objections to the Magistrate Judge's compelling interest analysis are without merit. The objections are overruled.
Perhaps the plaintiffs' most strenuous objections are directed at the Magistrate Judge's application of a narrow construction of Rule 67(B)(1)(c).
When a statute or regulation is challenged, it should be interpreted to avoid constitutional difficulties. "The elementary rule is that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality." Edward J. De Bartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575, 99 L. Ed. 2d 645, 108 S. Ct. 1392 . . . (1988) (quoting Hooper v. California, 155 U.S. 648, 657, 39 L. Ed. 297, 15 S. Ct. 207 . . . (1895); Frisby v. Schultz, 487 U.S. 474, 483, 101 L. Ed. 2d 420, 108 S. Ct. 2495 . . . (1988). In fact, courts routinely narrow statutes to avoid a potentially overbroad reach. Osborne v. Ohio, 495 U.S. 103, 109 L. Ed. 2d 98, 110 S. Ct. 1691 . . . (1990).
Stretton, 944 F.2d at 144; see also Virginia v. American Booksellers Ass'n, 484 U.S. 383, 397, 98 L. Ed. 2d 782, 108 S. Ct. 636 (1988); United States v. Marshall, 908 F.2d 1312, 1318 (7th Cir. 1990), cert. denied, 115 L. Ed. 2d 970, 111 S. Ct. 2796 (1991) (a preference for giving statutes a constitutional meaning is a reason to construe, not to rewrite or "improve"). Rule 67(B)(1)(c) has not been the subject of construction under the First Amendment by either the ICC or the Illinois Supreme Court.
We are required to follow whatever construction the Illinois Supreme Court would put on the rule. Similar to this court, the Illinois Supreme Court, when examining an act for constitutional infirmity, will seek a construction which preserves constitutionality. People v. Anderson, 148 Ill. 2d 15, 591 N.E.2d 461, 465, 169 Ill. Dec. 288 (Ill. 1992), petition for cert. filed (July 14, 1992); Continental Ill. Nat'l Bank & Trust Co. v. Illinois State Toll Highway Authority Comm'n, 42 Ill. 2d 385, 251 N.E.2d 253, 257 (Ill. 1969). The Magistrate Judge concluded that if the Illinois Supreme Court was called upon to construe Rule 67(B)(1)(c), it would limit the disputed issue provision to issues likely to come before the court. Report, at 30. All three plaintiffs object to this construction. The plaintiffs argue that the Magistrate Judge's construction is "strained" or an "invented concept." See IJA Objections, at 6; Young Objections, at 7. The plaintiffs also attack the Magistrate Judge's reliance on the Third Circuit's construction of a rule similar to Rule 67(B)(1)(c) in the Stretton decision. As explained below, none of these objections have merit.
For several reasons, the court agrees with the Magistrate Judge that Rule 67(B)(1)(c) is "readily susceptible" to a narrow construction limiting its scope to statements made on issues which are likely to come before the judicial candidate when sitting as a judge. First the structure of Rule 67(B)(1)(c) itself requires this narrow construction. The trailing language of the proviso, that a candidate may announce his position on certain issues of court administration "if, in doing so, he does not cast doubt on his capacity to decide impartially any issue that may come before him[,]" logically applies to the disputed issue provision. It would make no sense, and clearly the Illinois Supreme Court in enacting the Rule did not mean, for a judicial candidate to be restricted from voicing his views on a disputed issue which bore no likelihood of ever being presented to him in the context of a lawsuit. Similarly, it is unlikely that the Rule is meant to restrict a candidate from pledging to increase the efficiency of the court system. Plaintiffs have not advanced any reasons which would persuade this court to the contrary.
Second, the structure of the Illinois Code of Judicial Conduct supports a construction which requires the highest degree of judicial impartiality and integrity. Rule 61 of the Code requires that "the provisions of this Code should be construed and applied to further [the] objective" of upholding "the integrity and independence of the judiciary." ILL. REV. STAT. ch. 110A, P 61. Other portions of the Code are consistent with this purpose. For instance, Rule 63 states:
A. Adjudicative Responsibilities
(1) A judge should be faithful to the law and maintain professional competence in it. He should be unswayed by partisan interest, public clamor, or fear of criticism.
(4) A judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to law, and except as authorized by law, shall not permit ex parte or other communications concerning pending or impending proceedings.
(6) A judge should abstain from public comment about a pending or impending proceeding in any court. . . . This subsection does not prohibit judges from making public statement in the course of their official duties or from explaining for public information the procedures of the court.
ILL. REV. STAT. ch 110A, P 63 (emphasis added). These sections strongly support a narrow construction of Rule 67(B)(1)(c) which, while preserving a judicial candidate's First Amendment right to speak, limit that speech when it pertains to issues that would be a part of "pending or impending proceedings."
Last, the case law supports a narrow construction of Rule 67(B)(1)(c). Very recently, in a case with facts almost identical to the instant facts, Judge Beatty of the United States District Court for the Southern District of Illinois was called upon to rule on the constitutional validity of Rule 67(B)(1)(c). See Weber v. The Judicial Inquiry Board, et al., No. 92-329WLB (S.D. Ill. July 31, 1992). Finding the Rule constitutional, Judge Beatty stated:
This Court believes that the Supreme Court of Illinois would read Rule 67 to mean that 'disputed legal or political issues' refers to those issues which are likely to come before the Court.
The same reasoning would apply to the pledges and promises provisions of the Rule. Thus, the prohibition against making 'pledges and promises' would apply only to those issues likely to come before the Court.
Weber, supra, slip op. at 7 (citing Stretton, 944 F.2d at 144). While not bound by another district court's decision, we agree with Judge Beatty's conclusion. The plaintiffs' attack on Stretton, cited by both Judge Beatty and Magistrate Judge Weisberg in support of a narrow construction, is not compelling. The plaintiffs point to the fact that in Stretton the Pennsylvania Judicial Inquiry Board explicitly bound itself to enforcing the canon in question when a judicial candidate made a statement related to an issue that could come before the court. Stretton, 944 F.2d at 142-143. The Illinois JIB has not indicated that its enforcement of Rule 67(B)(1)(c) is so narrowed. In Young's words, "this Court should reject vague 'predictions' that the defendants would be unlikely to prosecute Young, or that the Courts Commission would be unlikely to find him in violation of the Rule, unless his speech was on a matter likely to come before him as a judge." Young Objections, at 11-12. It is clear, however, the Third Circuit in Stretton did not rely solely on the narrow enforcement philosophy of the Pennsylvania Judicial Inquiry Board. The court state:
Stretton, 944 F.2d at 144. Illinois shares the same compelling state interest identified by the Stretton court. The Illinois Supreme Court would follow the same rule of construction in narrowing the Rule as would the Pennsylvania Supreme Court. A narrow construction of Rule 67(B)(1)(c) is even more justifiable given the proviso, which the Pennsylvania canon did not contain. We conclude the Magistrate Judge's narrow construction of Rule 67(B)(1)(c), limiting the Rule's application to issues that are likely to come before the court, is correct. The plaintiffs' objections, in this regard, are overruled.
Having come to the conclusion that Rule 67(B)(1)(c) should be narrowly construed, questions of nexus and overbreadth are disposed of easily. A statute regulating speech must be narrowly tailored to the compelling state interest, or in other words, there must be sufficient nexus between the compelling state interest and the regulation imposed. Frisby, 487 U.S. at 487 (regulation must target and eliminate no more than the exact source of the "evil" it seeks to remedy). Young argues: "Defendants simply make the assumption that the rule enhances the impartiality of the judiciary. . . . . But that, like the Report's false analogy, does not carry the burden of demonstrating nexus. Simply put, a partial judge is a partial regardless of whether he makes public statements that demonstrate his particularity. And a judge lacking in integrity will, unfortunately, lack integrity regardless of whether she states and discusses her views of disputed political issues." Young Objections, at 14. Young misses the point. Rule 67(B)(1)(c) cannot, and does not attempt to, eradicate partiality in the judiciary. Rule 67(B)(1)(c) does promote integrity and impartiality in the judiciary.
All candidates for elective office, including judicial candidates, presumably come equipped with opinions and predilections which are the result of their life experience. A judge, however, must cast these aside, saving only his or her intrinsic notion of fundamental fairness. The canon
recognizes that pre-election commitments by judicial candidates impair the integrity of the court by making the candidate appear to have pre-judged and issue without benefit of argument of counsel, applicable law, and the particular facts presented in each case.
Ackerson, 776 F. Supp. at 315. Rule 67(B)(1)(c) prohibits pre-election promises or pledges on issues likely to come before the court. The rule prohibits a candidate from announcing a position on a disputed issue likely to come before the court. These regulations are narrowly tailored to prevent prejudgment by a candidate, and thus preserve the judiciary's role as an impartial forum for dispute resolution. Rule 67(B)(1)(c) does not prohibit a judicial candidate from commenting on issues of court administration and other issues not likely to be presented to him as a judge. The Rule certainly does not prohibit a candidate from commenting on his experience, background and character. Therefore, the Rule maintains its nexus with the compelling state interest in maintaining a judiciary free from bias and imbued with integrity. The Rules does not prohibit speech which is not related to this goal. The plaintiffs' objections as to nexus are overruled.
Even when a state does have the power to regulate an area of speech, the regulation "must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom." Cantwell v. Connecticut, 310 U.S. 296, 304, 84 L. Ed. 1213, 60 S. Ct. 900 (1940). If a statute, while validly prohibiting one form of expression, unreasonably restricts speech which is protected by the First Amendment, the statute is overbroad and constitutionally invalid. Thornhill v. Alabama, 310 U.S. 88, 97-98, 84 L. Ed. 1093, 60 S. Ct. 736 (1940). In National Association for the Advancement of Colored People v. Button, Justice Brennan noted that the standards for permissible statutory vagueness were strict:
Furthermore, the [statute] may be invalid if it prohibits privileged exercises of First Amendment rights whether or not the record discloses that the petitioner has engaged in privileged conduct. For in appraising a statute's inhibitory effect upon such rights, this Court has not hesitated to take into account possible applications of the statute in other factual contexts besides that at bar.
N.A.A.C.P. v. Button, 371 U.S. 415, 432, 9 L. Ed. 2d 405, 83 S. Ct. 328 (1963).
The Magistrate Judge found neither the pledge or promise provision nor the disputed issue provision overbroad. See Report, at 37-38. The court agrees with the Magistrate Judge's conclusion. Having concluded that the Magistrate Judge's narrow construction of Rule 67(B)(1)(c) is appropriate, there can be no question that Rule 67(B)(1)(c) does not substantially restrict constitutionally protected speech. The Rule restricts only those statements which would cast doubt upon the impartiality of a judge to decide an issue on which the judge had previously announced his position. The Rule does not foreclose comment on subjects unlikely to be litigated before the judge, on issues of court administration, or on character or experience issues which are part of the campaign. The parties objections based upon overbreadth are overruled.
The plaintiffs' last challenge to Rule 67(B)(1)(c) is that it is void for vagueness. The void-for-vagueness doctrine is closely related to overbreadth and, in many ways, based upon similar principles. See Dombrowski, 380 U.S. at 486 (statutes which are vague and overbroad lend themselves too readily to denial of First Amendment rights); Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 71 L. Ed. 2d 362, 102 S. Ct. 1186 (1982) (when a facial challenge is made, court's first task is to determine if statute is overbroad; court's next inquiry is whether statute is impermissibly vague); see generally NOWAK & ROTUNDA, supra note 12, at § 16.9, at 950. Explaining the vagueness standard, the Court has said:
Flipside, Hoffman Estates, Inc., 455 U.S. at 498 (quoting Grayned v. City of Rockford, 408 U.S. 104, 108-09, 33 L. Ed. 2d 222, 92 S. Ct. 2294 (1972)). When a law inhibits expression protected by the First Amendment, a more strict vagueness standard applies. Flipside, Hoffman Estates, Inc., 455 U.S. at 499 (citing Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 31 L. Ed. 2d 110, 92 S. Ct. 839 (1972); Grayned, 408 U.S. at 109). The Magistrate Judge concluded that Rule 67(B)(1)(c) was neither facially vague or vague as applied. Report, at 36-41. The court has examined Rule 67(B)(1)(c) for impermissible vagueness. We find we must agree with the Magistrate Judge's conclusion: Rule 67(B)(1)(c) is not void for vagueness.
Magistrate Judge Weisberg examined the pledge or promise provision and disputed issue provision separately. The plaintiffs' objections are essentially a rehash of the arguments presented to the Magistrate Judge. We have reviewed de novo these arguments and they do not require extensive discussion here. First, it is clear a person of ordinary intelligence would know when a statement is prohibited by Rule 67(B)(1)(c). Justice Buckley argues:
An example of a statement which the rule could be construed to prohibit, but which a reasonable person would not consider impermissible under the rule is, "In my rulings I have always zealously protected the rights of citizens/individuals." Although such a comment might be meant to reflect a candidate's interest in safeguarding constitutional rights, it could be construed as an implied promise to accord preferential treatment to "citizens" in cases involving U.S. citizens and immigrants from other countries or as an implied promise to accord preferential treatment to "individuals" involved in disputes with corporations.
Buckley Objections, at 12. Justice Buckley's argument fails because the ambiguity raised by his argument is not in the Rule but in the example suggested. Rule 67(B)(1)(c) prohibits pledges or promises unambiguously. The ordinary person, even a person without the extensive legal training of a lawyer or judge, is capable of knowing, after reading the rule, that the conduct prohibited is the making of a pledge or promise on an issue likely to come before the court.
Rule 67(B)(1)(c) is not void for vagueness even when applied to the specific statement made by Justice Buckley. Justice Buckley makes much of the fact that the statement, "I have never written an opinion reversing a rape conviction," was described by both the JIB and Magistrate Judge Weisberg, as an implied promise. Report, at 36. But as the Magistrate Judge notes: "'Enactments need not provide "meticulous specifics" or mathematical precision; they are permitted "flexibility and reasonable breadth."' Berg v. Health and Hospital Corporation, 865 F.2d 797, 805 (7th Cir. 1989) (quoting Grayned, 408 U.S. at 110)." Report, at 36. Rule 67(B)(1)(c) can be construed to apply to implied as well as express promises. Buckley contends that the statement is not even an implied promise so much as a statement of his record. This position ignores the context of Justice Buckley's statement. The court believes that a person of ordinary intelligence would know that, a statement made in the context of a political campaign, singling out a specific issue of high emotional appeal, conveys implications beyond the bare words of the statement. For what other reason would a candidate comment on the consistency of his record on an issue except to imply to the electorate his continued consistency. Justice Buckley's objection is overruled.
Young attacks the rule on the second element of the Grayned standard, stating that Rule 67(B)(1)(c)'s vagueness results in arbitrary enforcement. Young points to several cases, some of which were decided by non-Illinois courts, as evidence of arbitrary enforcement of Rule 67(B)(1)(c). Young compares In re Kaiser, 111 Wash. 2d 275, 759 P.2d 392 (Wash. 1988) (en banc), which held that a statement by a judicial candidate that he was "tough on drunk driving" as a violation of the pledge or promise provision, with In re Tully, No. 90-CC-2 (Oct. 25, 1991), an order by the ICC which held Judge Tully's (now Justice Tully) statements that he was "tough on crime" and "tough on taxes" as non-violative of the pledge or promise provision. Young Objections, at 26. Young implies that these cases are inconsistent and prove arbitrary enforcement of the rule. Notwithstanding that these cases involve different jurisdictions, the court believes the cases are entirely consistent. The statement in In re Kaiser ("tough on drunk driving") clearly implies a predisposition against a particular class of criminal defendant, much like Justice Buckley's statement on rape convictions. The statement in In re Tully ("tough on taxes" and "tough on crime") do not single out any particular class of litigant. At most, these statements indicate a general intent to strictly enforce certain legal codes, a judicial philosophy entirely consistent with the Rule's allowance that a judge may promise to give "faithful and impartial performance of the duties of the office." ILL. REV. STAT. ch. 110A, P 67(B)(1)(c).
The IJA's objections on vagueness grounds fall somewhere between those raised by Justice Buckley and Young. The IJA posits:
Suppose the candidates states, "I think that the Illinois Supreme Court's position on endless death penalty appeals is far too liberal". Is that an unlawful implicit pledge to be tough on death penalty appeals, or is the candidate merely announcing her views on a measure to improve the legal system and the administration of justice by streamlining death penalty appeals? If so, can reasonable people disagree as to whether this casts doubt upon the candidate's ability to decide specific death penalty cases impartially?
IJA Objections, at 11. The court believes the answer to the IJA's last question is no. Like Justice Buckley, the IJA constructs a statement purposefully ambiguous while ignoring the clarity of Rule 67(B)(1)(c). Even in the suggested statement's ambiguity, however, it is clear that the speaker of the suggested statement is taking a position on an issue likely to come before him or her as a sitting Illinois Circuit, Appellate, or Supreme Court judge. Whether the statement is a pledge or an announcement of a view on a disputed issue is of no import since Rule 67(B)(1)(c) clearly prohibits both. The candidate who wishes to avoid sanction but still comment on the permissible subject of court administration need only remove the offending reference to a disputed legal issue--death penalty appeal. The IJA's objection Rule 67(B)(1)(c) on vagueness grounds is overruled.
D. Sua Sponte Summary Judgment
The court concludes summary judgment is not appropriate in the plaintiffs' favor. Summary judgement is appropriate in defendants' favor, but defendants have not so moved. Therefore, the court moves sua sponte for summary judgment in the defendants' favor and grants the motion.
Granting summary judgment sua sponte warrants special caution. Summary judgment may be granted by a district court "for a party without motion, when the outcome is clear, so long as the opposing party has had an adequate opportunity to respond." Smith v. DeBartoli, 769 F.2d 451, 452 (7th Cir. 1985), cert. denied, 475 U.S. 1067, 89 L. Ed. 2d 606, 106 S. Ct. 1380 . . . (1986) citing, Macon v. Youngstown Sheet & Tube Co., 698 F.2d 858, 861 (7th Cir. 1983); Malak v. Associated Physicians, Inc., 784 F.2d 277, 280-81 (7th Cir. 1986)[)]. Indeed, we have held that "sua sponte dismissals without prior notice or opportunity, to be heard on the issue underlying the dismissal . . . 'generally may considered hazardous.'" Doe On Behalf of Doe v. St. Joseph's Hospital, 788 F.2d 411, 415 (7th Cir. 1986) (quoting, Tamari v. Bache & Co. (Lebanon) S.A.L., 565 F.2d 1194, 1198 (7th Cir. 1977), cert. denied, 435 U.S. 905, 55 L. Ed. 2d 495, 98 S. Ct. 1450 . . . (1978).
For several reasons, the court believes summary judgment sua sponte is especially appropriate in the instant case. First, the parties are on notice that summary judgment sua sponte may be granted. Magistrate Judge Weisberg specifically suggested summary judgment be granted defendants sua sponte. See Report, at 41-42. Second, the parties agree there are no issues of material fact in dispute. Plaintiffs will not be prejudiced by not proceeding to trial since there is no need for a trier of fact. Last, the parties have had adequate time and opportunity to brief the issues presented by this case. Three separate motions for summary judgment, one by each of the plaintiffs, were presented to the Magistrate Judge. The defendants responded at length. The Magistrate Judge's Report spans forty-two pages of scholarly analysis and garnered more than sixty-two pages of objections. Clearly, the plaintiffs have had an opportunity to present their side of the story. The court concludes that plaintiffs will not be prejudiced by the entry of summary judgment sua sponte for the defendants.
II. The JIB's Motion to Dismiss
Prior to the plaintiffs' filing their motions for summary judgment, the JIB and the ICC filed motions to dismiss Justice Buckley's complaint. This motion was also referred to Magistrate Judge Weisberg for a Report and Recommendation. See Buckley v. Illinois Judicial Inquiry Board, et al., No. 91 C 7635 (Feb. 24, 1992) (Weisberg, M.J.) [hereinafter "Report and Recommendation on the Motion to Dismiss"]. The Magistrate Judge recommended that the JIB's motion to dismiss be denied, but that the ICC's motion to dismiss be granted. The JIB has filed objections to the Magistrate Judge's Report and Recommendation on the Motion to Dismiss. 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). As stated above, we review de novo those portions of the Magistrate Judge's Report and Recommendation to which the JIB objects. For the reasons discussed below, we overrule the JIB's objections and adopt the Magistrate Judge's Report and Recommendation in its entirety.
The JIB objects to the Magistrate Judge's conclusion that the ICC is not a "court" within the meaning of 28 U.S.C. § 1738 (the "full faith and credit statute"). The full faith and credit statute requires that "judicial proceedings [of any State, Territory, or Possession the United States] shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken." 28 U.S.C. § 1738. The JIB's contention to the Magistrate Judge was thus: Justice Buckley presented his constitutional challenge to the ICC and, therefore, the ICC's decision must be given preclusive effect by this court. The Magistrate Judge concluded that while the ICC's function was "judicial in nature," it was not a "court" within the meaning of the full faith and credit statute. Report and Recommendation on the Motion to Dismiss, at 10 (citing Pincham v. Illinois Judicial Inquiry Board, 681 F. Supp. 1309, 1323 (N.D. Ill. 1988), aff'd, 872 F.2d 1341 (7th Cir. 1989). Therefore, the Magistrate Judge concluded Justice Buckley's claim was not barred.
The JIB seizes upon a statement made by Judge Rovner in Pincham as supporting its position. Judge Rovner stated: "The Court concludes that the Courts Commission is, in fact, an independent state court with very limited jurisdiction." Pincham, 681 F. Supp. at 1309. In affirming Judge Rovner's decision, the Seventh Circuit implicitly approved this statement. Pincham, 872 F.2d at 1345. The fault in the JIB's position is that neither Judge Rovner nor the Seventh Circuit was speaking in terms of the full faith and credit statute. Pincham was resolved on the basis of the Younger abstention doctrine. Briefly, the Younger abstention doctrine requires a federal court to abstain when there exists an "ongoing state judicial proceeding," implicating important state interests and the state proceedings afford an adequate opportunity to raise constitutional challenges. Pincham, 872 F.2d at 1346 (citing Middlesex County Ethics Committee v. Garden State Bar Ass'n, 457 U.S. 423, 432, 73 L. Ed. 2d 116, 102 S. Ct. 2515 (1982)). In other words, the Pincham courts were not required to conclude that the ICC was a court so much as it was necessary that an "ongoing state judicial proceeding" be present. As the Magistrate Judge notes: "'Judicial' and 'court' are not synonyms, and the Younger abstention doctrine applies to state quasi-judicial administrative proceedings as well as court proceedings. Ohio Civil Rights Commission v. Dayton Christian Schools, 477 U.S. 619, 91 L. Ed. 2d 512, 106 S. Ct. 2718 (1986)." Report and Recommendation on the Motion to Dismiss, at 10. The Illinois Constitution article creating the JIB and the ICC does not describe the ICC as a court. ILL. CONST. art. VI, § 15(e). The ICC is not an administrative agency under the control of the executive branch. The Illinois Supreme Court has concluded that the ICC is not a court. People ex rel Harrod, 372 N.E.2d at 65-66. The court does not believe the dicta in the Pincham decisions requires a contrary result. The JIB's objection is overruled.
The Court has been called upon to consider the constitutionality of a rule limiting the speech of judicial candidates. We do so with great apprehension since "competition in ideas and governmental policies is at the core of our electoral process and of the First Amendment freedoms." Williams v. Rhodes, 393 U.S. 23, 32, 21 L. Ed. 2d 24, 89 S. Ct. 5 (1968). These freedoms were secured at great cost and must be jealously guarded. See Whitney v. California, 274 U.S. 357, 375-77, 71 L. Ed. 1095, 47 S. Ct. 641 (1927) (Brandeis, J., concurring) ("Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary.").
Illinois chooses to select its judges by means of election. The wisdom of this choice is not subject to this court's commendation or criticism. The Supreme Court of Illinois has wisely chosen to enact rules which will preserve the impartiality and integrity of the Illinois judiciary no matter what method of selection is employed. The Rule is not arbitrary. Under the analysis discussed above, Rule 67(B)(1)(c) would be constitutional regardless of whether Illinois chose to elect its judges or fill judicial vacancies by other means, such as appointment. to maintain the impartiality and integrity of the judiciary, judicial candidates must be prevented from discussing, whether by announcement or pledge, issues which will require impartial resolution in the courts these candidates hope to occupy. Judicial candidates cannot be allowed to appeal to popular sentiment in the hopes of being elected, appointed, or retained. To permit otherwise would deprive litigants of the expectation of an impartial judiciary.
For the forgoing reasons, the Judicial Inquiry Board's motion to dismiss is denied. The Illinois Courts Commission's motion to dismiss is granted. Justice Buckley's, Anthony Young's and the Illinois Judges Association's motions for summary judgment are denied. The court grants summary judgment sua sponte for the Illinois Judicial Inquiry Board, the Illinois Courts Commission and the Attorney Registration and Disciplinary Commission.