Judge Jessica Arong O’Brien was elected circuit judge of Cook County in 2012.¹ In February of 2018, she was convicted for a mortgage fraud scheme in which she allegedly participated prior to taking the bench.² She was able to remain sitting, although assigned to administrative duties, while awaiting sentencing last fall.³ The ARDC suspended Judge O’Brien’s law license last April,⁴ and the Judicial Inquiry Board filed a complaint with the Illinois Courts Commission last June.⁵ Pending sentencing and appeal, Judge O’Brien filed for retention in the November election.⁶ Retired Cook County Judge George Scully filed suit in the Supreme Court seeking her removal from the ballot.⁷ The Illinois Courts Commission was set to consider at a September 24 hearing whether to suspend O’Brien from her position without pay.⁸ However, O’Brien withdrew her notice to seek reelection and resigned from the bench effective September 4, after her posttrial motions were denied.⁹

The History of Judicial Discipline

Under the 1818 Constitution, judges could only be removed by impeachment¹⁰ or a mechanism known as “legislative address.”¹¹ In 1833, Supreme Court Justice Theophilus Smith was impeached, acquitted by the Senate, and survived a legislative address attempt.¹² In 1842, Supreme Court Justice Thomas Brown was impeached and acquitted by the Senate after being represented by Abraham Lincoln.¹³

Under the 1870 Constitution, impeachment¹⁴ and concurrent resolution of the House and Senate¹⁵ were the only two ways to remove a judge. A judicial disciplinary commission was established by constitutional amendment in 1964, to be convened by the Chief Justice or the Senate, and subject to Supreme Court rule.¹⁶ One such rule created the Illinois Courts Commission, and established the procedure by which it was to receive and hear complaints.¹⁷

However, in response to misconduct by the Chief Justice and an associate justice of the Supreme Court just before the Constitutional Convention, the delegates chose to take away judicial control of judicial discipline.¹⁸ The 1970 Constitution gave the Supreme Court the exclusive authority to promulgate rules of judicial conduct for judges,¹⁹ but the convention delegates were clear that they did not want the court to be involved in judicial discipline, specifically the investigative, prosecutorial, and adjudicative functions, instead creating two independent agencies—the Judicial Inquiry Board and the Illinois Courts Commission.²⁰ Both are vested with the power to draft its own rules of procedure, control its staff, and issue subpoenas.²¹ The Commission’s decisions are final and nonreviewable.²²

Under the current Constitution, the Judicial Inquiry Board investigates complaints against judges and prosecutes the complaint before the Illinois Courts Commission.²³ The Commission has the authority to remove a judge from office, suspend a judge without pay, censure or reprimand the judge, or retire a judge who is unable to perform his or her duties.²⁴

Can a Judge Be Removed from Office by Disbarment?

The Attorney Registration and Disciplinary Commission filed a petition with the Supreme Court asking that it suspend Judge O’Brien’s license to practice law, and that it enjoin her from serving as judge.²⁵ However, as discussed above and noted in Respondent’s Answer to Rule to Show Cause, the court does not have the power to remove a judge.²⁶ The ARDC argued in its petition that this proceeding is analogous to the recent case against Rhonda Crawford, a law clerk and judicial candidate who put on a judge’s robe and heard cases.²⁷ In that case, the ARDC suspended her license and enjoined her from taking the bench. But, as noted in Respondent’s answer, Crawford was enjoined prior to taking the bench, not removed after she had assumed office.²⁸

Can a Judge Be Removed for Conduct Committed Prior to Their Becoming a Judge?

One question is whether a judge can be removed from office for conduct occurring before he or she was seated. In this case, Judge O’Brien argued that she could not be removed from office for conduct occurring before she took the bench.²⁹ Interestingly, the Illinois Courts Commission ruled in the case of In re Kaye that the Judicial Inquiry Board and Courts Commission were limited to matters that occur while a judge is in office, and that judges may not be disciplined for behavior, including criminal misconduct, that occurred before they took the bench.³⁰

The Constitution also allows for removal for “conduct that brings the judicial office into disrepute.”³¹ This clause would seem broad enough to encompass a conviction while a judge is sitting, even if the conduct giving rise to the conviction occurred prior to being seated. Could this have been grounds for removing Judge O’Brien? The Kaye decision considered this as well, finding that “conduct that occurred before a man became judge may bring the man into disrepute, but it can hardly be said to bring the judicial office into disrepute.”³² The Commission noted that conviction of a felony would render a judge ineligible for office under Article XIII, Section 1 of the Constitution, whether committed before or after the judge took the bench.³³ Also, since Article VI, Section 11 requires a judge to be a licensed attorney, disbarring the judge would disqualify him or her from serving.³⁴ However, as discussed above, neither her conviction nor her suspension was able to immediately remove Judge O’Brien or prevent her from taking her judicial salary.

Conclusion

As demonstrated by the O’Brien case, removing a judge can be a difficult process. While disbarment would make a judicial candidate ineligible for office, the ARDC cannot remove a sitting judge simply by disbarring him or her. One must also consider when the offending conduct occurred in order for it to warrant removal. And, while felony convictions make a candidate ineligible for office, it is unclear whether the Courts Commission would remove a judge convicted of conduct occurring prior to their taking office. Also, defendants are entitled to pursue posttrial remedies, and so until those remedies are exhausted, a judge may remain in office collecting their salary.

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The author is senior counsel and ethics officer for the Illinois Department of Central Management Services.