Tuesday, June 19, 2018

Judicial Inquiry Board files complaint against Judge Jessica O'Brien

When the Illinois Supreme Court suspended Judge Jessica A. O'Brien's law license on April 26 it did not remove her from the bench. Instead, the Court referred the matter to the Judicial Inquiry Board.

And, today, the Judicial Inquiry Board filed a Complaint before the Illinois Courts Commission seeking Judge O'Brien's suspension from office without pay pending further order of the commission.

O'Brien's federal conviction on mortgage fraud charges is not the immediate cause of today's complaint. Rather, today's action is probably best seen as an attempt to resolve something of a constitutional crisis.

Article 6, Section 11 of the 1970 Illinois Constitution provides, in pertinent part, "No person shall be eligible to be a Judge or Associate Judge unless he is a United States citizen, a licensed attorney-at-law of this State, and a resident of the unit which selects him." That language would have been sufficient to prevent O'Brien from becoming a judge (as it in fact prevented the late Rhonda Crawford from taking judicial office) -- but O'Brien became a judge years before federal charges were brought against her. And, according to Article 6, Section 15 of the Illinois Constitution, only the Illinois Courts Commission, acting on a complaint brought by the Judicial Inquiry Board, can remove a judge from the bench.

O'Brien clearly does not want to resign, at least not while her post-trial motions remain pending.

And her post-trial motions are still pending. Just today, in fact, the government filed a motion seeking a seven day extension (to July 2) for it to respond to O'Brien's 70 page post-trial motion. Assuming that the motion will be granted (the government represents that the motion is unopposed), O'Brien's reply in support of her motion will be due on August 1.

And November is coming.

First elected in 2012, O'Brien would be up for retention this November -- and she has filed for retention. Indeed, according to today's complaint by the JIB, O'Brien filed for retention after her law license was suspended on April 26 (complaint, par. 13).

Thus, the JIB alleges, in its complaint (par. 15), that the basis for removing O'Brien from office is that:
Respondent's continued presence as a member of the Illinois judiciary, despite the Illinois Supreme Court's suspension of her license to practice law in response to a jury verdict of guilty on two federal criminal charges, is prohibited by the Illinois Constitution and undermines public confidence in the judicial system. As such, it is prejudicial to the administration of justice and has brought the judicial office into disrepute.
Specifically, the JIB complaint against O'Brien alleges that, by remaining in office after her law license has been suspended, O'Brien violates two of the Canons of Judicial Ethics (Supreme Court Rules 61 et seq.).

First, the JIB charges that O'Brien violates Rule 61 (Canon 1) by her continuation in office. Rule 61 provides:
A Judge Should Uphold the Integrity and Independence of the Judiciary

An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should personally observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.
The JIB also charges that, by remaining in office, O'Brien violates Rule 62 (Canon 2) The portion of Rule 62 cited by the JIB provides:
A Judge Should Avoid Impropriety and the Appearance of Impropriety in All of the Judge's Activities

(A) A judge should respect and comply with the law and should conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
O'Brien's attorneys have argued (in response to the ARDC's petition in the Supreme Court):
Respondent is currently pursuing post-trial remedies in the federal court. The process she is due is clearly set forth in the Federal Rules of Criminal Procedure. At this time, there is no final judgment, and Respondent still has the opportunity to be found innocent under those Rules. See, Berman v. United States, 302 U.S. 211, 212 (1937) (holding, "[f]inal judgment in a criminal case means sentence. The sentence is the judgment.") This Court should allow Respondent to exhaust her due process rights before making any determinations related to her law license or judicial office.
Today's complaint would appear to be an effort to sidestep the ultimate question of O'Brien's guilt or innocence on the bank fraud charges. The issue framed for the Courts Commission is whether O'Brien's remaining in office after the jury verdict undermines public confidence in the judiciary and is consistent with the high standards of conduct that citizens are to expect from judicial officers. Significantly, the JIB complaint does not necessarily seek to remove O'Brien from the bench, only from the payroll.

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