Judge's passenger, also a judge, did not cooperate with DUI investigation: Hinsdale Police

That's what Dan Mihalopoulous reported last week on the WBEZ website.

A reader alerted me to the WBEZ story the morning it appeared; Charlie Meyerson had a link up promptly on Chicago Public Square. A number of persons, all named Anonymous, have offered their takes in my comment queue. Not all of them are defamatory; none are very nice. (No, I haven't passed any through so far.)

So you already know the story -- but to analyze some of the ethical issues that may arise therefrom, it is necessary to provide a brief recap.

While the second judge, a passenger (and the owner of the vehicle that the other judge was driving), did not cooperate with the police investigation, the police were able to put a case together against the driver anyway. The judge who was driving ultimately pleaded guilty to driving under the influence, according to the WBEZ story. He has been in "judge's jail" since December 1. An attorney, also in the car at the time of the crash, allegedly told police he did not know who was driving because he thought he was in an Uber.

Since her involvement was revealed, the second judge has been widely criticized for her failure to assist the police's inquiries. At least one newspaper editorial board has demanded that she be 'held accountable' for her noncooperation.

But did the second judge do anything actually illegal by not cooperating?

I think most would agree that it would be wonderful if all witnesses would voluntarily and truthfully tell investigators what they saw and what they know. It would greatly simplify the lawyers' tasks, whether on the civil or criminal side. And then we wake up.

If her name had been Smith, and if she worked at Costco instead of a courthouse, would the second judge have had any legal obligation to cooperate with authorities?

That's the question I put to attorney Harold Wallin, who has lengthy experience representing defendants in DUI cases. And, with those parameters, Wallin acknowledged that witnesses generally do not have an obligation to cooperate.

Moreover, Wallin cited to §6-304.1 of the Illinois Vehicle Code, 625 ILCS 5/6-304.1, which makes it a Class A misdemeanor to "knowingly cause, authorize, or permit a motor vehicle owned by, or under the control of, such person to be driven or operated upon a highway by anyone who is under the influence of alcohol." Given the possibility of a charge under this statute, Wallin said, "I could see why she might want to take advantage of her right to remain silent and not say anything that might be used against her in a criminal prosecution."

But, Wallin added, because she is a judge, the second judge "might be expected to do more than the minimum."

And, of course, that's the point: Illinois judges do not enjoy all the same rights as do their fellow citizens. They actually have fewer rights.

Judges in Illinois are subject to a Code of Judicial Conduct (enshrined as Illinois Supreme Court Rules 61-67).

Under the Canons, as they are called, judges cannot hold offices in political organizations, and cannot lend their names to fundraising appeals, even for charitable causes. When people run for judicial office, or seek retention, they cannot personally raise funds for their campaigns. Restrictions are imposed on what judges can earn in addition to their salaries, and how outside income may be earned. Judges cannot serve as the executor or administrator of an estate, except for a family member. And the family members of judges must take care in accepting gifts or favors that might reflect on a judge's impartiality. Judges are severely restricted in what they can say about cases before them and there are limitations on what they can say generally, because a judge cannot comment on controversies that might come before his or her court.

And the Canons are being reevaluated. There is a proposal from the Illinois Judicial Ethics Committee which would, in the words of this article on the Supreme Court's Commission on Professionalism, "modernize the Illinois Code of Judicial Conduct, addressing many of the issues facing today’s judges, including the impact of social media and electronic communications as well as current cultural issues."

In other words... this is still a proposal... but it has a lot of juice behind it. It seems only a matter of time before it is adopted.

Now... let's look at the situation of that second judge as recently profiled on WBEZ in the frame of the present and likely future judicial conduct rules.

Current Canon 1 (SCR 61) provides, in pertinent part, "A judge should * * * personally observe[,] high standards of conduct so that the integrity and independence of the judiciary may be preserved. Canon 2 (SCR 62) provides, in pertinent part, "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." Proposed Rule 1.1 states, "A judge shall comply with the law, including this Code."

Proposed Rule 1.2 provides:

A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary and shall avoid impropriety and the appearance of impropriety.

The actions, or inactions, of the second judge during the police investigation do not reflect on the independence or impartiality of the judiciary. But what about integrity?

"Integrity" is defined in the proposed Code to mean, "probity, fairness, honesty, uprightness, and soundness of character. See Canons 1 and 4, and Rules 1.2, 3.1, 3.12, 4.1, and 4.3."

Proposed Rule 3.1 provides some general limitations on what a judge can or cannot do while engaging in extrajudicial activities. Proposed Rule 3.12 addresses compensation for extrajudicial activities. Proposed Rule 4.1 addresses political and campaign activites, while Proposed Rule 4.3 imposes limitations on a person's conduct while seeking a judicial appointment.

My best guess, based on what has been publicly reported to date, is that, in the absence of a clear violation of some specific rule, there is probably not much chance, under either the present or proposed judicial ethics codes, that the second judge will face formal discipline as a result of this one event.

But someone should have called a cab. Or an Uber. Whatever.