Proposed judicial ethics code is silent on courthouse romances

Proposed changes to Illinois’ code of conduct for state judges don’t regulate consensual relationships between judges and their colleagues or staff. But some retired judges and ethics experts say the omission is a missed opportunity to address potentially problematic workplace dynamics in the courts.

The Illinois Supreme Court Rules Committee had a public hearing Feb. 2 to discuss potential changes to the state’s Code of Judicial Conduct — which hasn’t seen a major update since 1993 — proposed by the Illinois Judicial Ethics Committee, a group of volunteer attorneys and sitting and retired judges.

The proposed changes to ethics rules for state court judges focus heavily on judges’ annual financial disclosures and how they use the internet and social media. The proposal also more firmly addresses sexual harassment, prohibiting “sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that is unwelcome.” But if the Illinois Supreme Court adopts the changes, the new code would make no mention of consensual intimate relationships.

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After the public hearing earlier this month, Injustice Watch heard concerns about this omission from two retired Cook County judges. Both wished to remain anonymous but said the proposed changes to the code miss an opportunity to improve workplace culture in the courts by not prohibiting relationships between two judges or between judges and court staff — particularly between those in supervisory positions and their subordinates.

#MeToo scandals have roiled every type of industry and workplace in recent years, elevating public discussions about gender bias, racism, and other types of discrimination at work. In the last month, two Cook County judges have faced allegations of sexist behavior and comments. But while sexual harassment in the workplace has been broadly condemned, consensual relationships between colleagues are a thornier issue.

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Unlike sexual harassment, romantic liaisons between colleagues are not necessarily unwanted and can be expected to arise naturally because people spend so much of their lives at work. They may not be detrimental to the working environment. “The concern here is the power dynamic,” said Renee Knake Jefferson, a professor and legal ethics expert at the University of Houston Law Center in Texas. “Whether it’s a professor and a student or a supervisor and the employee being supervised, there’s a serious question whether or not the individual in the less powerful position can truly consent.”

The retired judges who spoke with Injustice Watch expressed additional concerns about the effect that workplace romantic relationships, especially extramarital affairs, can have on the colleagues and staff of the people involved.

Jefferson proposes a range of solutions to address the issue. These include banning romantic relationships between judges and short-term subordinates, such as student law clerks, and requiring disclosure of romantic relationships.

“There’s an easy solution if, in fact, both parties are consenting adults — transparency,” Jefferson said. Reporting the relationships can ease “concerns that we might have that the employee might be coerced or feels they can’t say no because of the power dynamic at play.” She adds that the disclosure doesn’t have to be made in a public way, but even reporting to a direct supervisor could be a step in the right direction.

The Illinois Judicial Ethics Committee leaned on the American Bar Association’s 2007 Model Code of Judicial Conduct, already used in at least 37 states, to draft its proposed changes, which is based on an earlier version of the ABA’s model. Steven Pflaum, chair of the committee, and Cynthia Gray, director of the Center for Judicial Ethics at the National Center for State Courts, say they aren’t aware of any state judicial ethics code that addresses romantic relationships in the judiciary.

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Pflaum said he cannot respond to these concerns on behalf of the committee, which doesn’t reconvene until the end of February. However, he acknowledges that it is important to consider the effect of romantic relationships on workplace culture. “Any time any aspect of a judge’s conduct is influenced by any outside consideration, including personal relationships, it’s a potential source of concern,” Pflaum said.

He argues that there are already provisions in the ethics code “that could cover this type of situation,” even though it doesn’t specifically address workplace romance. The code states that judges are not supposed to let any type of personal relationship influence their conduct, that they should avoid favoritism when making appointment or hiring decisions, and that they must “act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary.”

Anyone who observes conduct that appears to violate these provisions, including judges’ romantic entanglements with colleagues and subordinates, can cite these rules as the basis of a complaint to the Illinois Judicial Inquiry Board, Pflaum said.

Enforcement of ethics code remains a concern

The proposed updates to judicial ethics rules would strengthen language requiring judges to report other judges for violating the code. But at the hearing last week, seven members of the public addressed the Illinois Supreme Court Rules Committee with a deeper concern about judicial ethics rules. “We can have all the rules we want, but they don’t mean anything if they’re not enforced,” as one commenter put it.

The Judicial Inquiry Board receives hundreds of misconduct complaints about state court judges every year. However, the agency has a staff of just five full-time workers, with only two dedicated to investigating complaints, according to Micheal Deno, the JIB’s executive director. That hasn’t changed since Injustice Watch first published an in-depth report on the board’s operations in 2015.

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The JIB’s investigative process is also shrouded in secrecy. The board doesn’t make complaints about judges public unless it investigates a complaint and finds sufficient evidence to file formal charges against a judge with the Illinois Courts Commission, which rules on the evidence and imposes sanctions on judges. As part of the judicial branch of government, the JIB is not subject to Illinois’ Freedom of Information Act.

According to Deno, in 2020, the JIB received 404 complaints about judges and closed 77% of them without investigating. The agency hasn’t filed formal charges against a single judge since 2019. If a judge chooses to retire or resign, the JIB loses any power to continue investigations or discipline them.

These shortcomings in the enforcement mechanism are a problem in federal and state courts because the judicial branch of government has a long tradition of creating and enforcing its own rules.

“As lawyers and judges, we adopt our own ethics code and implement them and enforce them amongst ourselves,” Jefferson said. “Whatever ethics code a judicial body may have adopted for itself is only valuable if it’s actually enforced. Having words on the page alone is not enough.”

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