Buckley v. Illinois Judicial Inquiry Bd.

• Decision Date: 10 June 1993
• Docket Number: 92-3283,Nos. 92-3279,92-3291,s. 92-3279
• Citation: 997 F.2d 224
• Parties: Robert C. BUCKLEY, Plaintiff-Appellant, and Illinois Judges Association, Intervening Plaintiff-Appellant, v. ILLINOIS JUDICIAL INQUIRY BOARD, and its members, not individually but in their capacity as members of the Board, Defendants-Appellees. Anthony L. YOUNG, Plaintiff-Appellant, v. James Harold BANDY, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 224

997 F.2d 224

61 USLW 2772

Robert C. BUCKLEY, Plaintiff-Appellant, and Illinois Judges Association, Intervening Plaintiff-Appellant, v. ILLINOIS JUDICIAL INQUIRY BOARD, and its members, not

individually but in their capacity as members of

the Board, Defendants-Appellees.

Anthony L. YOUNG, Plaintiff-Appellant, v. James Harold BANDY, et al., Defendants-Appellees.

Nos. 92-3279, 92-3291, 92-3283.

United States Court of Appeals, Seventh Circuit.

Argued April 13, 1993.

Decided June 10, 1993.

William J. Harte (argued), Stephen L. Garcia, Joan M. Mannix, Chicago, IL, for plaintiff-appellant in No. 92-3279.

Candace J. Fabri (argued), John H. Ehrlich, Sachnoff & Weaver, Chicago, IL, Jennifer A. Keller, Asst. Atty. Gen., for defendants-appellees in Nos. 92-3279, 92-3291.

Stephen R. Swofford, Bruce L. Carmen (argued), Peter D. Sullivan, Hinshaw & Culbertson, Chicago, IL, for intervenor-appellant.

William J. Harte (argued), Stephen L. Garcia, David J. Walker, Chicago, IL, for plaintiff-appellant in No. 92-3291.

Stephen R. Swofford, Bruce L. Carmen (argued), Peter D. Sullivan, Hinshaw & Culbertson, Chicago, IL, for intervenor-plaintiff.

Harvey M. Grossman, Jane M. Whicher (argued), Roger Baldwin Foundation of ACLU, Inc., Chicago, IL, for plaintiff-appellant in No. 92-3283.

James J. Grogan, James S. Renfroe, Atty. Registration & Disciplinary Com'n, Chicago, IL, for defendant-appellee in No. 92-3283.

Before BAUER, Chief Judge, POSNER, Circuit Judge, and RONEY, Senior Circuit Judge. ^*

POSNER, Circuit Judge.

We are asked to declare unconstitutional a rule promulgated by the Supreme Court of Illinois to regulate the speech of candidates for state judicial office. The rule provides that "a candidate, including an incumbent judge, for a judicial office filled by election or retention ... 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 ... 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." Ill. S.Ct. R. 67(B)(1)(c), Ill.Rev.Stat. ch. 110A p 67(B)(1)(c). The rule is enforced in proceedings brought before the Illinois Courts Commission by the Judicial Inquiry Board in the case of judges, and in proceedings conducted by the Attorney Registration and Disciplinary Commission in the case of lawyers. We have plaintiffs of both types. Robert Buckley is a Justice of the Appellate Court of Illinois, the middle tier in the state's three-tier system of courts of general jurisdiction. (The bottom tier is the circuit court, the top tier the supreme court.) In 1990, Buckley ran unsuccessfully for a seat on the Supreme Court of Illinois. Open positions on Illinois courts, other than openings for the position of associate judge of the circuit court, are filled in partisan elections, with the further exception of a mid-term vacancy, which is filled by the supreme court. Judges or justices whose terms expire and who stand for reelection run unopposed but must receive 60 percent of the votes cast in order to retain their office. The position of associate judge is purely appointive, although associate judges have the same jurisdiction as circuit judges.

During his campaign for the supreme court, Justice Buckley circulated campaign literature which stated that he had "never written an opinion reversing a rape conviction." Less than two weeks before the election the Judicial Inquiry Board filed charges against him with the Illinois Courts Commission, which after the election found that he had violated Rule 67(B)(1)(c) but declined to impose a sanction. (Authorized sanctions range from a reprimand to removal from office. Ill. const. art. VI, § 15(e).) The Courts Commission's decision is final, Ill. const. art. VI, § 15(f), so Justice Buckley had no avenue of appeal within the state court system. He filed this suit in 1991, and the next year ran unsuccessfully again for the supreme court but successfully for retention of his seat on the Illinois Appellate Court. The Illinois Judges Association, of which Justice Buckley is a member, intervened as a plaintiff in his suit.

Buckley's case was consolidated with a separate but similar case brought by Anthony Young, a member of the Illinois legislature who in 1992 was elected to the Circuit Court of Cook County. Young claims that the risk of being sanctioned for violating Rule 67(B)(1)(c) deterred him from speaking out in his campaign on issues that he believed to be important to Illinois voters, including capital punishment, abortion, the state's budget, and public school education. Had Young actually been sanctioned, he could have obtained judicial review in the Supreme Court of Illinois. Ill.Rev.Stat. ch. 110A, p 753(e).

The district judge upheld Rule 67(B)(1)(c) and dismissed the two suits after construing the "announce" clause (the candidate is not to "announce his views on disputed legal or political issues") as being limited to statements on issues likely to come before the judge in a case. 801 F.Supp. 83 (N.D.Ill.1992). The plaintiffs have appealed. We must first consider two jurisdictional issues, though neither is raised by any party. One is whether the plaintiffs have standing to complain about the rule. Neither Buckley nor Young is at present a candidate for judicial office, and the challenged rule is limited to pledges, promises, and announcements made during a campaign for such office. Young will have to run for retention in 1998, assuming he wants to remain a judge. Buckley will not be up again for retention until 2002 and may by that time have had his fill of judicial office--more to the point, he will reach the age of 75 before then and will have to vacate his office. Ill.Rev.Stat. ch. 37, p 23.71. Yet as the judicial tenure statute has been interpreted, it would not bar him from running in 1992 for the open position created by the expiration of the term in which he had been forced to retire, or from running for any other judicial office in Illinois. Anagnost v. Layhe, 230 Ill.App.3d 540, 172 Ill.Dec. 46, 595 N.E.2d 109 (1992). And he is likely to run for the state supreme court again when a vacancy occurs.

A further consideration in support of the conclusion that we have a live controversy is the brevity of judicial campaigns in relation to the leisureliness of litigation, which prevented the appeals in these two cases from being decided before Justice Buckley's retention campaign. Should he decide to run for the next open position on the state supreme court, by the time he decides it will probably already be too late for him to file a suit that we would be able to decide before the election; and during such a campaign the Illinois Courts Commission's finding that he violated the rule would undoubtedly be used against him, as it was, we are told, in his retention campaign. This brings our case within the orbit of Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 1494-95, 23 L.Ed.2d 1 (1969), which allowed a challenge to a state election law to be maintained after the election in which the plaintiffs had run for office, because the law would affect future elections. See also Renne v. Geary, --- U.S. ----, ----, 111 S.Ct. 2331, 2338, 115 L.Ed.2d 288 (1991).

This discussion is rather academic, since the membership of the Illinois Judges Association, which is still another plaintiff, includes many judges who will be running either for retention or for higher judicial office, and Rule 67(B)(1)(c) will inhibit their campaign statements. An association has standing to sue if its members have standing. Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977). True, the Judges Association is merely an intervening plaintiff, and if the suit in which it intervened was not within the jurisdiction of the federal court its presence could not confer jurisdiction. But the petition for intervention could be treated as the complaint in a separate action, and the suit preserved in that way. Atkins v. State Board of Education, 418 F.2d 874, 876 (4th Cir.1969) (per curiam); Simmons v. ICC, 716 F.2d 40, 46 (D.C.Cir.1983) (dictum); 7C Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1917 at pp. 457-59 (2d ed.1986).

The other jurisdictional question is whether Justice Buckley's suit is barred by the Rooker- Feldman doctrine: federal courts other than the Supreme Court lack jurisdiction to review judgments of state courts. Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983). The judgment of the Illinois Courts Commission in the disciplinary proceeding against Justice Buckley was the judgment of the highest court of the State of Illinois because it could not be reviewed by any other Illinois court, so only the U.S. Supreme Court could review it further, not the district court or this court. No statute, with the irrelevant exception of the statute allowing state prisoners to seek habeas corpus in federal district court, 28 U.S.C. § 2254, authorizes the federal district courts or courts of appeals to review judgments of state courts. Feldman itself, however, allowed a lawyer, refused admission to the bar in a proceeding much like the one to discipline Justice Buckley, to challenge in a federal district court proceeding the constitutionality of the rule that had been applied to deny him admission, because the challenge to the rule did not entail a challenge to the ruling on its application. So here, Justice Buckley's challenge to the constitutionality of Illinois Supreme Court Rule 67(B)(1...