Opposition Brief — Pincham v. Illinois Judicial Inquiry Board

Supreme Court, U.S.

FILE D

2) NW 3 8

- JOSEPH F. SPANIOL, JR.

No. 89-242 —

‘ nn

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

R. EUGENE PINCHAM,

Petitioner,

VS.

THE ILLINOIS JUDICIAL INQUIRY BOARD

AND ITS MEMBERS, et al.,

Respondents.

On Petition For Writ Of Certiorari To The United

States Court Of Appeals For The Seventh Circuit

-BRIEF OF RESPONDENTS

THE ILLINOIS JUDICIAL INQUIRY BOARD

AND ITS MEMBERS IN OPPOSITION

Dan K. WEBB

STEVEN F. Moto *

JuLIE A. BAUER

WINSTON & STRAWN

35 West Wacker Drive

Chicago, Illinois 60601

(312) 558-5600

Counsel for Respondents

The illinois Judicial Inquiry

* Counsel of Record Board And Its Members

Midwest Law Printing Co., Chicago 60611, (312) 321-0220

QUESTION PRESENTED

Whether the United States Court of Appeals for the Seventh

Circuit properly held that the district court must abstain from exercis-

ing jurisdiction over petitioner’s complaint in deference to state

judicial disciplinary proceedings under the principles of federalism

and comity established by this Court in Younger v. Harris, 401 U.S.

37 (1971) and Middlesex County Ethics Comm. v. Garden State Bar

Ass’n, 457 U.S. 423 (1982), where the state judicial disciplinary

proceedings were on-going, implicated important state interests, and

provided the petitioner with an adequate opportunity to raise his

constitutional challenges.

~ e

LIST OF PARTIES

The parties to the proceedings in the United States Court of

Appeals for the Seventh Circuit and before this Court are: petitioner,

R. Eugene Pincham; and the respondents, the Illinois Judicial Inquiry

Board and its members: Tyrone C. Fahner, chairman, William A.

O’Conner, vice chairman, Honorable Harold L. Jensen, Honorable

Edward H. Marsalek, Mary Sue Hub, Joel D. Gingass, Patrick F.

Mudron, Joyce E. Moran, and Frances K. Zemans; Ray F. Breen,

Executive Director of the Illinois Judicial Inquiry Board; and the

Illinois Courts Commission and its members which are defendants:

Honorable Ben K. Miller, chairman, Honorable Allan L. Stouder, and

Honorable Rodney A. Scott.

- ili -

TABLE OF CONTENTS

Page

Ee eo a ee i

EGET, Bind d st 6 Gis Wee be cs ee ws ii

EN re arr a ae a iv

eS ok a's ks a we a6 § 8 cae o 2

I Sk 6k 8 dine cerela 6.4 ane e 8:6 8 o 2

Ee en ear a eae 2

Se eee ee eee 5

Reasons for Denyingthe Writ .............. 8

ee on kk sa oe we a8 lt 13

EE OS EO ee ee A-1

Appendix A: Complaint filed with Illinois

Courts Commission

Appendix B: Notice of Hearing And Order,

Entered by Illinois Courts Commission on

August 3, 1989

Appendix C: Motion to Dismiss, filed

with Illinois Courts Commission on

August 25, 1989

Appendix D: Brief in Support of Motion

to Dismiss, filed with Illinois Courts

Commission on September 12, 1989

-iv-

TABLE OF AUTHORITIES

Cases Page

Collins v. County of Kendall, 807 F.2d 95 (7th Cir.

1986), cert. denied, 483 U.S. 1005 (1987) ...... 12

Coruzzi v. New Jersey, 705 F.2d 688 (3d Cir. 1983) .... Il

Hicks v. Miranda, 422 U.S. 332 (1975) ........... 12

In re Elward, 1 Ill. Cts. Comm. 114(1974) ......... 11

Middlesex County Ethics Comm. v. Garden State

Bar Ass’n, 457 U.S. 423 (1982) ...... 9, 10, 11, 12

Moore v. Sims, 442 U.S. 415 (1979) ............. 10

New Orleans Public Service Inc. v. Council of New

Orleans, USS. , 109 S.Ct. 2506

i eae ee a i en 9

Ohio Civil Rights Comm’n v. Dayton Chris-

tian Schools, Inc., 477 U.S. 619 (1986) ....... 10, 11

Pennzoil Co. v. Texaco Inc., 481 U.S. 1(1987) ...... 10, 11

Pincham v. Judicial Inquiry Bd., 681 F. Supp.

1309 (N.D. Ill. 1988), aff'd, 872 F.2d 1341

COUT. Ce Ek Rie Pe ee 8, 10, 11

Railroad Comm’n v. Pullman Co., 312 U.S. 496

EE 4 ek Me ACR 6 ARR 4 8 8 ee 8 ke 8

Younger v. Harris, 401 U.S.37(1971) ...... 8, 9, 10, 12

United States Constitutional Provisions:

EO ee ee ye

EE a ae ee ee Se

Illinois Constitutional Provisions:

CS a ee eee 3,5

Illinois Supreme Court Rules:

Ill. S.Ct.R. 61, Ill. Rev. Stat. ch. 110A, 161 (1987) .... 4,7

Ill. S.Ct.R. 62, ill. Rev. Stat. ch. 110A, 962 (1987) .. . .4-5,7

Ill. S.Ct.R. 67, Ill. Rev. Stat. ch. 110A, 967 (1987) .... 5,7

No. 89-242

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

R. EUGENE PINCHAM,

Petitioner,

vs.

THE ILLINOIS JUDICIAL INQUIRY BOARD

AND ITS MEMBERS, et ai.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF OF RESPONDENTS THE

ILLINOIS JUDICIAL INQUIRY BOARD

AND ITS MEMBERS IN OPPOSITION

Respondents the Illinois Judicial Inquiry Board and its mem-

bers, Tyrone C. Fahner, chairman; William A. O’Conner, vice chair-

man; Honorable Harold L. Jensen; Honorable Edward H. Marsalek;

Mary Sue Hub; Joel D. Gingass; Patrick F. Mudron; Joyce E. Moran;

Frances K. Zemans; and Ray F. Breen, executive director, respectfully

request that this Court deny the petition for writ of certiorari, seeking

review of the opinion of the United States Court of Appeals for the

Seventh Circuit, entered in the above-captioned proceeding on April

27, 1989.

ahs

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Seventh Circuit is reported at 872 F.2d 1314. The memorandum

opinion and order of the United States District Court for the Northern

_ District of Illinois (Rovner, J.) appears at 681 F. Supp. 1.909.

JURISDICTION

The Seventh Circuit issued its decision on April 27, 1989 and

denied a timely-filed Petition for Rehearing with Suggestion for

Rehearing in Banc on May 22, 1989. Jurisdiction rests on 28 U.S.C.

§1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The first amendment to the United States Constitution

provides:

Congress shall make no law respecting an establishment

of religion, or prohibiting the free exercise thereof; or

abridging the freedom of speech, or of the press; or the

right of the people peaceably to assemble, and to petition

the Government for a redress of grievances.

Section 1 of the fourteenth amendment to the United States

Constitution provides:

All persons born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No

State shali make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; nordeny

to any person within its jurisdiction the equal protection

of the laws.

=

Article VI, §15 of the Illinois Constitution of 1970 provides, in

pertinent part:

(b) A Judicial Inquiry Board is created. The Supreme

Court shall select two Circuit Judges as members and

the Governor shall appoint four persons who are not

lawyers and three lawyers as members of the Board. No

more than two of the lawyers and two of the non-lawyers

appointed by the Governorshall be members of the same

political party. The terms of Board members shall be

four years. A vacancy on the Board shall be filled for a

full term in the manner the original appointment was

made. Ne member may serve on the Board more than

eight years.

(c) The Board shall be convened permanently, with

authority to conduct investigations, receive or initiate

complaints concerning a Judge or Associate Judge, and

file complaints with the Courts Commission. The Board

shall not file a complaint unless five members believe

that a reasonable basis exists (1) to charge the Judge or

Associate Judge with willful misconduct in office, per-

sistent failure to perform his duties, or other conduct that

is prejudicial to the administration of justice or that

brings the judicial office into disrepute, or (2) to charge

that the Judge or Associate Judge is physically or men-

tally unable to perform his duties. All proceedings of the

Board shall be confidential except the filing of a com-

plaint with the Courts Commission. The Board shall

prosecute the complaint.

(e) A Courts Commission is created consisting of one

Supreme Court Judge selected by that Court, who shall

be its chairman, two Appellate Court Judges selected by

that court, and two Circuit Judges seiected by the

Supreme Court. The Commission shall be convened

permanently to hear complaints filed by the Judicial

Inquiry Board. The Commission shall have authority

aie.

after notice and public hearing, (1) to remove from

office, suspend without pay, censure or reprimand a

Judge or Associate Judge for willful misconduct in

office, persistent failure to perform his duties, or other

conduct that is prejudicial to the administration of justice

or that brings the judicial office into disrepute, or (2) to

suspend, with or without pay, or retire a Judge or As-

sociate Judge who is physically or mentally unable to

perform his duties. :

(f) The concurrence of three members of the Commis-

sion shall be necessary for a decision. The decision of

the Commission shall be final.

Illinois Supreme Court Rule 61, Ill. Rev. Stat. ch. 110A, 961

(1987), provides in pertinent part:

A Judge Should Uphold the Integrity and

Independence of the Judiciary

An independent and honorable judiciary is indispen-

sable to justice in our society. A judge should participate

in establishing, maintaining, and enforcing, and should

himself observe, high standards of conduct so that the

integrity and indeperdence of the judiciary may be

preserved. The provisions of this Code should be con-

strued and applied to further that objective.

Illinois Supreme Court Rule 62, Ill. Rev. Stat. ch. 110A, 162

(1987), provides:

A Judge Should Avoid Impropriety and the Appearance

of Impropriety in All His Activities

A. A judge should respect and comply with the law and

should conduct himself at all times in a manner that

promotes public confidence in the integrity and impar-

tiality of the judiciary.

B. A judge should not allow his family, social, or other

relationships to influence his judicial conduct or judg-

ment. He should not lend the prestige of his office to

- -5-

advance the private interests of others; nor should he

convey or permit others to convey the impression that

they are ina special position to influence him. He should

not testify voluntarily as a character witness.

'llinois Supreme Court Rule 67(A)(2) and (A)/4), Ill. Rev. Stat.

ch. 110A, 967(A)(2) and (A)(4) (1987), provides:

A Judge Should Refrain From Political Activity Inap-

propriate to His Judicial Office -

A. Political Conduct in General

(2) Ajudge may not, except when a candidate for office

or retention, participate in political campaigns or ac-

tivities, or make political contributions.

(4) A judge should not engage in any other political

activity except on behalf of measures to improve the

law, the legal system, or the administration of justice.

STATEMENT OF THE CASE

This is a classic Younger abstention case. The Seventh Circuit

correctly affirmed the district court’s refusal to enjoin ongoing state

judicial disciplinary proceedings in which Petitioner had an oppor-

tunity to raise his constitutional claims.

The Illinois Constitution of 1970 created a comprehensive

system of judicial discipline by establishing the Illinois Judicial

Inquiry Board and the Illinois Courts Commission. The Judicial

Inquiry Board consists of two state circuit court judges, three lawyers,

and four non lawyers. Ili. Const. art. VI, $15(b). The Board has

authority to conduct investigations, receive or initiate complaints

concerning a state court judge or associate judge, and file complaints

with the Courts Commission. Jd. §15(c). The Board can file a com-

plaint only after five of its members find that a reasonable basis exists:

(1) to charge the judge with willful misconduct in office, persistent

pilin

failure to perform his duties, or other conduct that is prejudicial to the

administration of justice or that brings the judicial office into dis-

repute; or (2) to charge that the judge is physically or mentally unable

to perform his duties. Jd.

The Courts Commission is composed of a justice of the Illinois

Supreme Court, two justices of the Illinois Appellate Court, and two

Illinois Circuit Court judges. Id. §15(e). The Commission has the

authority to discipline judges after notice and public hearing and upon

the concurrence of three of the five members of the Commission that

the charges have been proven by clear and convincing evidence. Id.

15(e), (f).

Petitioner, R. Eugene Pincham, is a justice of the Illinois

Appellate Court, First District. On January 31, 1987, Petitioner

delivered what hé terms “an unwritten contemporaneous speech

commemorating Black History in America,” at an Operation P.U.S.H.

Saturday Forum. Operation P.U.S.H. is a Chicago-based organiza-

tion that advocates civil rights. The January 31, 1987 Saturday

Forum, at which Petitioner was the Keynote Speaker, focused on the

re-election of Harold Washington as mayor of Chicago.

During his speech, Petitioner referred to blacks and whites who

were hanged in a slave rebellion in New York in 1741 and stated that

“we are here on the shoulders” of those who died in that rebellion. In

the last part of his speech, Petitioner applied this theme to black

mayoral candidates, stating that “the black leaders are our candidates

and they ride on our shoulders.” After enumerating a list of these

candidates, Petitioner focused on the 1987 Chicago mayoral election,

Stating:

Harold Washington is running for mayor of the City of

Chicago. He got here on our shoulders. You’ve got to

decide here and now whether or not your shoulders are

broad enough to carry him in another time.

And those of us who might be inclined to be traitors —

you see, there are some who have slave mentalities —

those of us who are inclined to be traitors, who suspect

that because you are going to the secrecy of a voting

a.

booth, that you can vote for who you want to vote for,

we know who you are. Be not confused about it. When

the ballot comes out, we are going to count. And 100

percent. Not 99 percent of the votes cast. Not 90 percent

of the votes cast. Any man south of Madison Street who

casts a vote in the February 24th election who doesn’t

cast a vote for Harold Washington ought to be hung as

those were hung in New York.

On February 23, 1987, Petitioner received a letter from respon-

dent Robert P. Cummins, the chairman of the Illinois Judicial Inquiry

Board. The letter enclosed a copy of the transcript of Petitioner’s

speech and stated that the Judicial Inquiry Board was considering

charges that his participation in and remarks at the Saturday Forum

‘constituted political activity in violation of the Illinois Code of Judi-

cial Conduct, specifically Illinois Supreme Court Rules 62, 67 (A)(2),

67 (A)(4) and the introductory paragraph to Rule 61. In addition, the

letter informed Petitioner that, prior to the Judicial Inquiry Board’s

determination of whether there existed a reasonable basis to file a

complaint against him, he was required to appear and respond to the

charges before the Judicial Inquiry Board on March 13, 1987.

Petitioner, accompanied by counsel, appéared before the Judi-

cial Inquiry Board on that date. He called a number of witnesses and

testified on his own behalf. Both he and his lawyers then argued that

his speech did not violate Illinois Supreme Court Rules 61, 62,

67(A)(2) and 67(A)(4) and that if the rules were construed to prohibit

his speech, they would violate his right to free speech and his right to

be free from vague restrictions on speech, rights guaranteed by the

first and fourteenth amendments. They urged that the Judicial Inquiry

Board would thus be acting without a reasonable basis were it to file

a complaint with the Courts Commission. Petitioner subsequently

submitted a written memorandum of authorities in support of his

position to the Judicial Inquiry Board.

In June 1987, Petitioner filed suit in the United States District

Court for the Northern District of Illinois, seeking to enjoin the

Judicial Inquiry Board from filing or proceeding upon any complaint

against him premised on his January 31, 1987 speech. The Board

voluntarily agreed to forego the filing of a complaint with the Courts

——

‘a.

Commission until after the district court had an opportunity to con-

sider a motion to dismiss based primarily on the doctrine of absten-

tion. The respondents moved to dismiss the complaint, arguing that

the suit was not ripe for determination because Petitioner had not yet

been found guilty of a violation and disciplined, that the court should

abstain under the principles of federalism and comity enunciated in

Younger v. Harris, 401 U.S. 37 (1971), and that abstention was

required under Railroad Comm’n v. Pullman Co., 312 U.S. 496

(1941). The district court held that the case was ripe for adjudication,

but granted the motion to dismiss on the basis of the Younger doctrine.

Pincham v. Judicial Inquiry Bd., 681 F. Supp. 1309 (N.D. Ill. 1988).

The Seventh Circuit affirmed, agreeing that Younger required

the district court to abstain from enjoining the state judicial discipli-

nary proceedings against Petitioner. Pincham v. Illinois Judiciai

Inquiry Bd., 872 F.2d 1341, 1351 (7th Cir. 1989).

Following the district court’s dismissal of the complaint, the

Judicial Inquiry Board filed a complaint before the Courts Commis-

sion against Petitioner based on his participation in the Saturday

Forum. See App. A. Petitioner moved to dismiss the complaint, again

arguing that proceedings violated his first amendment rights.

Petitioner submitted a written brief and the Courts Commission heard

oral argument on this issue. See Apps. B, C, and D. Petitioner’s motion

is currently under advisement.

REASONS FOR DENYING THE WRIT

I. Petitioner Has Failed To Establish Any Special

Or Important Reasons For Granting A Writ Of

Certiorari In This Case. |

Petitioner fails to establish the existence of any “special or

important reasons” suggesting that this Court should grant his petition

and exercise discretionary jurisdiction over this case. See U.S.S.Ct.R.

773.

The Seventh Circuit’s decision, affirming the district court’s

decision to abstain under the principles of federalism and comity

enunciated in Younger v. Harris, 401 U.S. 37 (1971), did not conflict

with the decision of any other federal court of appeals or with that of

AGL...

ys

the highest court of any state. Nor did the court of appeals address

any novel or unsettled issues of federal law. This Court has fully set

forth, in Younger and in more recent decisions such as Middlesex

County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423 (1982)

and New Orleans Public Service Inc. v.CouncilofNew Orleans, ___

US. __, 109 S.Ct. 2506 (1989), the analysis for courts to follow in

determining whether principles of federalism and comity require

abstention.

Petitioner contends that the Seventh Circuit misapplied

Younger and its progeny, implying that the Court of Appeals thereby

created a conflict with the applicable decisions of this Court. In fact, _

the Seventh Circuit’s decision was fully consistent with the principles

set forth in Younger and other decisions of this Court.

II. The Seventh Circuit Correctly Applied Settled

Principles Of Law.

The Seventh Circuit’s decision was eminently correct. In

Younger, the plaintiff filed suit in federal court seeking to enjoin a

state criminal prosecution against him on the ground that the statute

under which he was being prosecuted violated his first and fourteenth

amendment rights to free speech and press. 401 U.S. at 38-39. A

three-judge district court found the state statute to be unconstitutional

and enjoined the prosecution. /d. at 40. This Court reversed, holding

that the district court should have abstained from enjoining the state

court proceeding. Id. at 41.

The Younger court’s “far-from-novel holding” was based part-

ly on traditional principles of equity, but rested “primarily on the

‘even more vital consideration’ of comity.” New Orleans Public

Service, Inc. v.CouncilofNew Orleans, _U.S. - _, 109S.Ct. 2506,

2515-16 (1989) (quoting Younger, 401 U.S. at 44). The notion of

comity means

a proper respect for state functions, a recognition of the

fact that the entire country is made up of a Union of

separate state governments, and a continuance of the

belief that the National Government will fare best if the

States and their institutions are left free to perform their

separate functions in their separate ways.

-10-

Younger, 401 U.S. at 44.

Although Younger involved the issue of federal court interven-

tion in state criminal prosecutions, the doctrine has since been ex-

tended to cover other actions where important state interests are at

stake. See, e.g., Pennzoil Co. v. Texaco, Inc. 481 U.S. 1 (1987) (state

court civil judgment enforcement proceedings); Ohio Civil Rights

Comm’n v. Dayton Christian Schools Inc., 477 U.S. 619 (1986)(state

administrative civil rights proceedings); Moore v. Sims, 442 U.S. 415

(1979) (state proceedings regarding child abuse).

This Court applied the Younger abstention doctrine in cir-

cumstances remarkably similar to those present here in Middlesex

County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423

(1982). In Middlesex, the issue was whether a federal court should

abstain from considering a challenge to the constitutionality of attor-

ney disciplinary rules that were the subject of a state disciplinary

action. Id. at 425. This Court stated:

The question. . . is threefold: first, do state bar dis-

ciplinary hearings within the constitutionally prescribed

jurisdiction of the State Supreme Court constitute an

ongoing state judicial proceeding; second, do the

proceedings implicate important state interests; and

third, is there an adequate opportunity in the state

proceedings to raise constitutional challenges.

Id. at 432. The Seventh Circuit correctly held that these three in-

quiries set forth the proper analysis for determining whether Younger

requires abstention in this case. See 872 F.2d at 1346. Furthermore,

the Court of Appeals correctly applied this analysis to the facts of this

case.

First, the judicial disciplinary proceedings against Petitioner

were clearly ongoing state judicial proceedings. Id. The Courts

Commission, the body that would hear the charges against Petitioner,

is judicial in nature, as it is a duly constituted entity that rules upon

alleged violations of Illinois Supreme Court rules, subject to proce-

dural limitations like those found in courts. The proceedings before

the Courts Commission are coercive, rather than remedial in nature.

See Ohio Civil Rights Comm’n v. Dayton Christian Schools Inc., 477

=.

U.S. 619, 623-25, 626-29 (1986). Furthermore, the proceedings were

clearly “ongoing”, as Petitioner had preseated a legal argument in

response to the Judicial Inquiry Board’s proposed charges and the

Inquiry Board had determined to file a complaint. See 681 F. Supp.

at 1320.

Second, the state judicial disciplinary proceedings brought

against Petitioner involve an important state interest: preserving a fair

and impartial judiciary. In Middlesex, this Court found that the State

of New Jersey had “an extremely important interest in maintaining

and assuring the professional conduct of the attorneys it licenses.”

457 US. at 434. A state’s interest in assuring the integrity and

professional conduct of its judiciary is certainly at least as important

as its interest in assuring the professional conduct of the attorneys it

licenses. Coruzzi v. New Jersey, 705 F.2d 688, 691 (3d Cir. 1983).

Third, the Seventh Circuit properly concluded that Petitioner

had the opportunity to raise his constitutional challenges in the state

judicial disciplinary proceedings. The burden rested on Petitioner to

show that state procedural law barred presentation of his constitution-

al claims. Pennzoil Co. v. Texaco Inc., 481 U.S. 1 (1987). Petitioner

failed to establish facts that demonstrated that the Courts Commission

would decline to entertain his constitutional questions. 872 F.2d at

1348. The Courts Commission has considered a constitutional chal-

lenge to the application of the Supreme Court rules to a judge on at

least one previous occasion. See In re Elward, 1 Ill. Cts. Comm. 114

(1974), cited in Pincham, 872 F.2d at 1348. Furthermore, the Courts

Commission is comprised of judges sworn to uphold the Constitutions

of Illinois and the United States; the Commission rules provide that

Petitioner could raise challenges, including constitutional challenges,

in his pleadings responsive to the complaint; the two IIlinois Supreme

Court cases discussing the jurisdiction of the Commission make clear

that it does have jurisdiction to consider constitutional challenges to

complaints; and acceptance of Petitioner’s interpretation of the Courts

Commission’s jurisdiction defies common sense and would render

the Illinois judicial disciplinary system meaningless.

Whatever doubt may have existed as to Petitioner’s ability to

raise constitutional challenges in the judicial disciplinary proceedings

were laid to rest by the subsequent actions of the Courts Commission.

«12 «

As previously noted, Petitioner raised his first amendment and other

constitutional challenges to the complaint, filing briefs and making

arguments before the Courts Commission. See Apps. C, D. The

Commission entertained all of Petitioner’s constitutional claims and

they are now under advisement. See App. B. Petitioner therefore has

had “abundant opportunity to present his constitutional challenges in

the state disciplinary proceedings.” Middlesex, 457 U.S. 436-37

(New Jersey Supreme Court’s sua sponte consideration of constitu-

tional issues prior to filing of petition for certiorari clearly

demonstrated adequacy of state forum).

Finally, no exceptions to the application of the Younger

doctrine exist. Although Petitioner argues that the disciplinary

proceedings against him constitute selective prosecution, he failed to

allege specific facts to support an inference of bad faith or harassment.

See Collins v. County of Kendall, 807 F.2d 95, 98 (7th Cir.

1986)(citing Hicks v. Miranda, 422 U.S. 332 (1975)), cert. denied,

483 U.S. 1005 (1987). Petitioner did not allege that the Judicial

Inquiry Board or the Courts Commission was aware of other judges’

activities, but nevertheless treated those judges more favorably or that

the respondents were using the proceedings against Petitioner, regard-

less of outcome, as instrumentalities to suppress speech.

Nor did Petitioner establish an “extraordinarily pressing need

for immediate equitable relief.” This Court in Younger expressly

rejected the argument that the presence of first amendment issues and

the possibility of a “chilling effect” on free speech, in and of itself,

provide a sufficient basis for prohibiting state action. Younger, 401

US. at 51.

Finally, Petitioner did not show that the Illinois Supreme Court

Rules were “flagrantly and patently violative of express constitutional

prohibitions .... in whatever manner and against whomever an effort

might be made to apply it.” See Younger, 401 U.S. at 53-54. By

arguing to the Judicial Inquiry Board that the ruies did not prohibit

his speech, Petitioner conceded that the rules could be construed in a

manner compatible with the Constitution.

Accordingly, the well-settled precedent of Younger controls.

Thus, Petitioner has put forth no reason to justify the grant of a writ

of certiorari in this case.

a

—

<a

CONCLUSION

For these reasons, the petition for a writ of certiorari should be

denied.

Respectfully submitted,

Dan K. Webb

Steven F. Molo*

Julie A. Bauer

WINSTON & STRAWN

35 W. Wacker Drive

Chicago, IL 60601

(312) 558-5600

Counsel for Respondents

The Illinois Judicial

Inquiry Board and Its

Members

* Counsel of Record

APPENDICES

Appendix A

STATE OF ILLINOIS

COURTS COMMISSION

In Re JUSTICE R. EUGENE PINCHAM )

of the ) 87CC3

APPELLATE COURT OF ILLINOIS _)

COMPLAINT

Pursuant to the provisions of Section 15/c) of Article VI of the

Constitution of the State of Illinois, the Illinois Judicial Inquiry Board

("the Board"), complains against R. Eugene Pincham ("Respondent"),

a Justice of the Appellate Court of Illinois, and charges Respondent

with conduct that is prejudicial to the administration of justice and

that brings the judicial office into disrepute.

Summary of Allegations

Respondent R. Eugene Pincham is a Justice of the Appellate

‘Court of Illinois, First District. This complaint charges Justice

Pincham with engaging in political activity in violation of the Stand-

ards of Judicial Conduct as set forth in the Illinois Supreme Court

Rule 67.

Allegations

1. On January 31, 1987, Respondent gave a speech at a

regularly scheduled “Saturday Forum” of Operation PUSH, a

Chicago-based organization that advocates civil rights. Respondent

was the keynote speaker (a copy of Respondent’s speech is attached

hereto as Exhibit B).

2. The program was held at the Operation PUSH headquarters

in Chicago, but was broadcast over three Chicago-area radio stations

and one station from Des Moines, Iowa.

3. The Operations PUSH program focused on the re-election

of Harold Washington as mayor of Chicago. It began with an an-

nouncer stating:

A-2

Today we come again appealing to you. Join us here at

America’s most happy crisis hot line. We call upon you

to join us as we again engage on a crusade to re-elect the

mayor of our city, Mayor Harold Washington, not be-

cause of him alone but because it is our time, because

he has done an excellent job, because we are joining him

in an attempt to turn this city around and we want his

work to continue, this is a day in Black History Month,

because we shall overcome today . . . Let us march on

February 24th [the date of the Chicago mayoral primary]

‘til victory is won.

(A copy of the transcript of the program excluding Respondent’s

speech is attached as exhibit A.) Throughout the program, various

speakers urged the audience to support Harold Washington’s can-

didacy for mayor of Chicago.

4. Four persons spoke to PUSH’s audience prior to Judge -

Pincham’s speech and each of those speakers urged Giga for

Mayor Harold Washington’s candidacy.

5. For example, prior to Judge Pincham speaking, a Mr. Tracy

Powell urged the audience to attend a “giant rally fund raiser for

Mayor Washington” which was to be held at the Americana Congress

Hotel at 6:30 p.m. on February 6, 1987. (Ex. A, page 3.) He also

urged the young people in the audience to “help us in this effort to

re-elect Mayor Harold Washington.” (Ex. A, page 4.)

6. Further, prior to Judge Pincham speaking, a Dr. Willie

Chaplan Barrow stated “Let us march on ‘til victory is won and victory

is going to be won for Harold Washington February 24th no matter

what happens. We [sic] going to win.” (Ex. A, page 6.) Dr. Barrow

then urged the audience to attend three rallies for Harold Washington

on February 1, 1987 at the Grand Memorial Church, February 16,

1987 at the University of Illinois Pavilion, and February $ 9, 1987 at

the Hyatt Hotel. (Ex. A, pages 7, 8, 11.)

7. Respondent’s speech discussed advances made by blacks in

civil rights and politics. Part of his speech discussed the hanging of

several slaves and white collaborators during the New York slave

rebellion of 1741.

A-3

8. Respondent’s speech also discussed the then upcoming

Chicago mayoral primary election. During the course of his speech

he made the following statement:

Harold Washington is running for Mayor of the City of

Chicago. And he got here on our shoulders. You’ ve got

to decide here and now whether or not your shoulders

are broad enough to carry him in another time...

And those of us who might be inclined to be traitors —

you See, there are still some who have slave mentalities

— those of use who are inclined to be traitors, who

suspect that because you go into the secrecy of a voting

booth that you can vote for who you want to vote for we

know who you are. And be not confused about it. When

the ballot comes out, we’re going to count, and 100

percent, not 99 percent of the votes cast, not 90 percent

of votes cast. Any man south of Madison Street who

cares to vote in the February 24th election who doesn’t

vote for Harold Washington ought to be hung as those

were hung in New York.

(Ex. B, pages 27, 28.)

9. The above-described conduct of Respondent violates inter

alia Illinois Supreme Court Rule 67(A)(2)(1987), which provides, “a

judge may not, except when a candidate for office or retention,

participate in political compaigns or activities, or make political

contributions.” _—

10. The above-described conduct of Respondent violates inter

alia Illinois Supreme Court Rule 67(A)(4), which provides, “a judge

should not engage in any other political activity except on behalf of

measures to improve the law, the legal system, or the administration

of justice.”

WHEREFORE, the Board, charging that the above-described

conduct of Respondent prejudices the administration of justice and

brings the judicial office into disrepute, prays that the Illinois Courts

Commission, after notice and public hearing, make such order in

| i“ ,

A-4

accordance with Section 15 of Article VI of the Illinois Constitution

as the Commission may deem appropriate.

Respectfully submitted,

ILLINOIS JUDICIAL INQUIRY BOARD

Robert P. Cummins, Chairman

Of Counsel:

Dan K. Webb

Steven F. Molo

Winston & Strawn

One First National Plaza

Suite 5000

Chicago, Illinois 60603

(312) 558-5600

Appendix B

STATE OF ILLINOIS

COURTS COMMISSION

In Re

JUSTICE R. EUGENE PINCHAM )

OF THE ) No. 88CC 1

APPELLATE COURT OF ILLINOIS )

NOTICE OF HEARING AND ORDER

Please take notice that all legal issues presented by the plead-

ings in the above-captioned cause will be heard by the Illinois Courts

Commission in the courtroom usually occupied by the Supreme Court

of Illinois at the Supreme Court Building in Springfield, Illinois

beginning at 10 a.m. on Monday, August 28, 1989.

The Illinois Judicial Inquiry Board and the respondent, Justice

R. Eugene Pincham, are ordered and directed to file with the clerk of

the Illinois Courts Commission all additional motions to be heard in

this cause on or before Monday, August 21, 1989. All additional

motions filed in this cause will be heard by the Illinois Courts

Commission in the courtroom usually occupied by the Supreme Court

of Illinois at the Supreme Court Building in Springfield, Illinois on

Monday, August 28, 1989, immediately following the hearing on the

legal issues presented by the pleadings now on file in this cause.

ENTER: , 1989

—ls/

Illinois Courts Commission

By: Ben Miller, its Chairman

=

Appendix C

STATE OF ILLINOIS

COURT’S COMMISSION

IN RE:

JUSTICE R. EUGENE PINCHAM, |)

) NO.88-CC-1

Of the Appellate Court of Illinois )

MOTION TO DISMISS COMPLAINT BECAUSE RULES

67A(2) AND 67A(4) OF THE RULES OF THE ILLINOIS

SUPREME COURT, ILLINOIS REVISED STATUTES, 1987,

CHAPTER 110A, SECTIONS 67A(2) AND 67A(4) ARE FA-

CIALLY UNCONSTITUTIONAL AND UNCONSTITUTION-

ALAS APPLIED TO RESPONDENT.

MOTION FOR EVIDENTIARY HEARING ON MOTION TO

DISMISS

Now comes JUSTICE R. EUGENE PINCHAM, Respondent,

by counsel, and moves the Court’s Commission to enter an order

dismissing the instant complaint on the grounds that Rules 67A(2)

and 67A(4) of the Rules of the Illinois Supreme Court are facially

unconstitutional and unconstitutional as applied to Respondent, and

further moves the Court’s Commission for an evidentiary hearing

thereon.

In support of the instant Motions Respondent states as follows:

I.

FREEDOM OF SPEECH AND ASSEMBLY

Rules 67A(2) and 67A(4) of the Rules of the Illinois Supreme

Court provide as follows:

C-2

A(2) A Judge may not, except when a candidate

for office or retention, participate in political campaigns

or activities, or make political contributions.

mB (®

A(4) A Judge should not engage in any other

political activity except on behalf of measures to im-

prove the law, the legal system, or the administration of

justice.

The above rules are unconstitutional both on their face and as

applied to Respondent, Justice Pincham, under both the Constitution

of the United States of America and the Constitution of the State of

Illinois in that:

(A) The above rules violate both on their face and as applied

to Respondent the freedom of speech and freedom of assembly

guarantees of the First Amendment to the United States Constitution

binding upon and applicable to the states through the due Process

Clause of the Fourteenth Amendment to the Constitution of the United

States.

(B) The above rules violate both on their face and as applied

to Respondent the freedom of speech guarantee to citizens of Illinois

by Article I, Section 4 of the Constitution of the State of Illinois.

(C) The above rules violate both on their face and as applied

to Respondent the right to assemble and petition guarantee of Article

I, Section 5 of the Constitution of the State of Illinois.

Il.

DUE PROCESS OF LAW AND EQUAL

PROTECTION OF THE LAW

The above rules are unconstitutional both on their face and as

applied to Respondent under both the Constitution of the United States

and the Constitution of the State of Illinois in that:

(A) The above rules violate due process of law and the equal

protection of the laws both on their face and as applied to Respondent

under both the United States Constitution, Amendment 14, and the

Constitution of the State of Illinois, Article I, Section 2, in that the

C-3

above rules are vague, indefinite, uncertain, and overbroad. The

above rules do not give adequate notice and/or fair warning to

members of the Illinois Judiciary in general and/or to this Respondent

in particular as to what conduct is allegedly prohibited or sought to

be prohibited. |

II.

MOTION FOR EVIDENTIARY HEARING

Respondent, Justice R. Eugene Pincham, moves the Commis-

sion for an evidentiary hearing whereby Respondent will demonstrate

through live testimony and/or documentary and demonstrative

evidence each of the above propositions.

Respectfully submitted,

R. EUGENE PINCHAM, Respondent

ROBERT E. PINCHAM, JR. SAM ADAM

Attorney for Respondent Attorney for Respondent

Justice R. Eugene Pincham Justice R. Eugene Pincham

221 North LaSalle Street #2440 53 West Jackson Blvd. #1430

Chicago, Illinois 60601 Chicago, Illinois 60604

(312) 782-0100 (312) 236-5543

Appendix D

STATE OF ILLINOIS

COURT’S COMMISSION

IN RE: R. EUGENE PINCHAM, )

) NO.88-CC-1

of the Appellate Court of Illinois )

BRIEF IN SUPPORT OF MOTION TO DISMISS COM-

PLAINT BECAUSE RULE 67A(2) AND 67A(4) OF THE

RULES OF THE ILLINOIS SUPREME COURT ARE FA-

CIALLY UNCONSTITUTIONAL AND UNCONSTITUTION-

AL AS APPLIED TO RESPONDENT, AND IN SUPPORT OF

MOTION FOR EVIDENTIARY HEARING ON MOTION TO

DISMISS.

In support of the instant motion Respondent states as follows:

A.

The United States Constitution, Amendment I, guarantees

freedom of speech. It is undisputed that Respondent is a Justice of

the Illinois Appellate Court. It is also undisputed that at the time when

Respondent is alleged to have violated Rules 67A(2) and 67A(4)

Respondent was not in a courtroom, nor wearing the trappings of his

office, nor speaking as a justice or a judge, but, instead, was engaged

in speaking to a community interest group on a Saturday morning not

in or near any courtroom or even on public property. Nor is it alleged

that Respondent did anything other that make a speech.

There is a real question as to whether the Rules were even

intended by the Illinois Supreme Court to apply to speech per se. This

is because in drafting the rules the court specifically proposed for

adoption of Canon 7(a)(1)(b) of the American Bar Association

providing:

“(1) A judge *** should not:

D-2

(b) make speeches for a political organization

or publicly endorse a candidate for public

office."

But the court rejected proposed Canon 7(a)(1)(b) and

prohibited only “political activity” by Rules 67A(2) and 67A(4).

Now, it seems too obvious to belabor that “speech” and “ac-

tivity” are not the same thing at all. True, certain “activity” may

constitute symbolic speech. Compare Texas v. Johnson (1989), 109

S. Ct. 2533. True, certain speech may arouse or induce “activity”.

Compare Chaplinsky v. New Hampshire (1942), 315 U.S. 568. True,

the utterance of certain specific and well-defined words themselves

may be prohibited under certain specific and well-defined cir-

cumstances. Compare Roth v. United States (1957), 554 U.S. 476;

Sheneck v. United States (1919), 249 U.S. 47. But in common every

day custom and usage, men and women of ordinary and reasonable

intelligence know that “activity” and “speech” are not the same thing.

The State of California tried to equate “conduct” and “speech” in

order to prevent Mr. Cohen from displaying “Fuck the Draft” openly

on his jacket, but Mr. Justice Harlan taught us that “The ‘conduct’

which the state sought to punish is the fact of communication. Thus,

we deal here with a communication resting solely upon

‘speech’. . . Further the state lacks power to punish Cohen for the

underlying content of the message the inscription conveyed." Cohen

v. California (1971), 403 U.S. 15, 18. One need not be an etymologist

to discern that “conduct” and “activity” are, or are pretty close to

being, synonymous. But if “conduct” and “speech” are not legally

identical (Co/ien), it strains the imagination to conclude that “activity”

and “speech” are.

Thus, Respondent urges that the Illinois Supreme Court in-

tended to prohibit only political “activity” by Illinois judges, and not

mere speech.

B.

Respondent next urges that even if the Illinois Supreme Court

did intend to prohibit free political speech, it lacked the constitutional

authority to do so by these Rules. Making the necessary assumptions,

these Rules constitute a prior restraint on speech. Prior restraints on

D-3

speech, presumed to be unconstitutional, can only be upheld if the,

state establishes (1) the speech sought to be restrained either poses a

clear and present danger or a serious or imminent threat to a protected

competing interest, Wood v. Georgia (1962), 370 U.S. 375, 383-85;

(2) the order, rule, statute or regulation is narrowly drawn, Carroll v.

President and Commissioners of Princess Anne (1968), 393 U.S. 175,

183-84; and that (3) less restrictive alternatives are not available.

Nebraska Press Association v. Stuart (1976), 427 U.S. 539, 563. And

because these Rules are content-based, i.e. they purport to regulate a

specific subject matter (politics), see Consolidated Edison of New

York v. Public Service Commission (1980), 447 U.S. 530, 537, and a

certain category of speakers (judges), see Widmar v. Vincent (1981),

454 U.S. 263, 267-70, only the least restrictive means may be

employed. Cornelius v. NA.A.C.P. Legal Defense and Educational

Fund, Inc. (1985), 473 U.S. 788, 800.

Respondent urges that the Inquiry Board has not even sought

to establish (much the less succeeded) the existence of any of the

above criteria. What clear and present danger was posed by

Respondent’s speech? What serious and imminent threat to a com-

peting interest existed? Were these Rules narrowly drawn? Were

less restrictive alternatives available? The answer to each of these

questions is obvious. There was no clear and present danger and

certainly no serious and imminent threat to a competing interest. It is

difficult to imagine how these Rules could be more broadly (less

narrowly) drawn (see “C” infra). Alternative means were never

explored or, apparently, even contemplated by the Illinois Supreme

Court.

The Rules must fall on their own weight, assuming they were

meant to restrain (prohibit) free political speech. Because we remem-

ber that

“.. . if it be conceded that the First Amendment was

‘fashioned to assure the unfettered interchange of ideas

for the bringing about of political and social changes

desired by the people’ Roth v. United States, 354 U.S.

476-484, then it can hardly be doubted that constitution-

al guarantee has its fullest and most urgent application

precisely to the conduct of campaigns for political of-

D-4

fice.” Monitor Patriot Company v. Roy (1971), 401 U.S.

265.

We must remember, too, that “policemen (read “judges") like

teachers and lawyers, are not relegated to a watered-down version of

constitutional rights." Garrity v. New Jersey (1967), 385 U.S. 493,

500.

Rules having similar goals have been enacted. And they have

been struck down under the First Amendment. See e.g. Jn re Oliver

(7th Cir., 1971), 452 F. 2d 111 (blanket prohibition against attorney

comments in pending litigation); Daily Herald Company v. Munro

(1988), 838 F. 2d 38 (prohibition on media from conducting “exit

polls” during an election); Smith v. Butterworth (11th Cir., 1989), 866

F, 2d 1318 (prohibition against disclosure of one’s own grand jury

testiraony after completion of the investigation); O’Brien v. Town of

Caledonia (7th Cir., 1984), 748 F. 2d 403 (police regulation prohibit-

ing officers’ discussion of graft and corruption in the department);

and, of course, Bates v. State Bar of Arizona (1977), 433 U.S. 350

(local Bar rule prohibiting attorney advertising).

C.

Even if the Court’s Commission were to conclude that the

Illinois Supreme Court intended by Rules 67A(2) and 67A(4) to

prohibit political speech, and were to further conclude that the Illinois

Supreme Court had the authority to do so, still, these Rules are so

vague, indefinite, uncertain and overbroad as to be lacking in fun-

damental due process. Judges in general, and Respondent specifical-

ly, are not given fair notice by these Rules as to what, and particularly

what speech, is prohibited. To cite Respondent for a violation of these

Rules after the fact violates the ex post facto prohibition of the United

States Constitution, Article I, Section 9, Clause 3. Compare Bowie v.

City of Columbia (1964), 378 U.S. 347.

It is a self-evident principle of constitutional law as well as

fundamental fairness that every person be given advance notice as to

what “activity” will violate the law. If men of common intelligence

must necessarily guess as to whether this “activity” or that “activity”

does or does not cross the plemsoll line between the prescribed and

D-5

the proscribed, then the law or rule is vague and violative of due

process. It is as simple as that. Every person is entitled to be informed

beforehand as to what the State commands or forbids. Connally v.

General Construction Company, 269 U.S. 385, 391; Lanzetta v. New

Jersey, 306 U.S. 451, 453; Grayned v. City-of Rockford (1972), 408

U.S. 104. See also People v. Klick (1977), 66 Ill. 2d 269. In no other

area of the law is this fundamental principle as essential as in the arena

of free speech. This is, of course, because none of us has the right to

commit burglary, robbery, murder etc. But we all do have the right of

speech, and therefore if an instrument of the State seeks to prohibit

certain speech, it must do so with the very utmost of precision. And

that’s the point here, assuming the Rules were intended to prohibit

pure speech. What does “political activity” mean? May a judge attend

a cocktail party for a public official? What about one for an aspiring

public official? Can he attend the inaugural of the Governor? Can

he meet the President? The list of questions is endless. Even these

hypotheticals which clearly involve “activity” are not answered by

any case law. But when we go one step further into the arena of speech

we truly enter the abyss of the amorphous. Is a judge permitted to say

to his wife, “I urge you to vote for candidate X”? What about to his

neighbor? What about to five neighbors? What about to a block club

consisting of 250 neighbors? etc. The point of all this, of course, is

that if there is a cut-off point, the judge must be advised of it in

advance.

1 In the Tuesday, September 5, 1989 edition of the Chicago Tribune,

Section 2, page 3, “On The Law” column, the columnist seems to

suggest that a self-styled “‘father-confessor’ to judges”, Professor

Steven Lubet of Northwestern Law School, has set up shop as some

sort of clearinghouse for judges who are “in trouble”, about to be “in

trouble”, or “want to do” something and seek permission to do it so as

to avoid being “in trouble.” (See article attached hereto as Exhibit).

When a Professor of Law at a most respected leading university

purports to advise judges on everything from speech to nude bathing

this demonstrates better than anything Respondent can say in this brief

the utter futility of attempting to conform one’s “activity” (read

“speech”) to the unstated “requirements” of ill-defined Rules. See e.g.

D-6

The case law makes plain that governmental rules and regula-

tions purporting to prohibit certain governmental employees from

exercising their First Amendment rights of free speech must meet the

requirements of exactitude or be struck down as vague and/or over-

broad. See e.g. Muller v. Conlist (7th Cir., 1970), 429 F. 2d 901

(holding police department rules prohibiting policemen from discuss-

ing matters derogatory to the department were overbroad); Chicago

Council of Lawyers v. Bauer (7th Cir, 1975), 522 F. 2d 242 (holding

District Court rules relating to extrajudicial comment by attorneys

engaged in criminal litigation were unconstitutionally vague and

overbroad) ; Gasparinetti v. Kerr (3rd Cir., 1989), 568 F. 2d 311

(holding that police department regulations prohibiting public com-

ments of disparagement of superior officers were vague and over-

broad); Levine v. United States District Court for the Central District

of California (9th Cir., 1985), 764 F. 2d 590 (holding that rules

restraining attorneys involved in litigation from communicating with

the media about the merits of the case were overbroad); United States

v. Ford (6th Cir., 1987), 830 F. 2d 596 (holding “gag” order restricting

comments by defendant-congressman in federal criminal trial was

overbroad).

D.

CONCLUSION

Respondent respectfully submits that (a) the Supreme Court

never intended by the enactment of Rules 67A(2) and 67A(4) to

prohibit political “speech” as distinguished from political “activity”;

(b) that if the Supreme Court did intend to prohibit speech within the

rubric of “political activity”, the Rules run afoul of the First Amend-

ment guarantee to free speech and the Fourteenth Amendment guar-

footnote | cont’d

In re Luster (1957), 12 Ill. 2d 25; In re Friedman (1979), 76 Ill. 2d 392;

In re Corboy (1988), 124 Ill. 2d 29. Please note that Luster, Friedman

and Corboy all involve conduct, i.e. “activity”, and not speech, and, in

the case of Friedman, minimal conduct.

D-7

antee to notice and are therefore unconstitutional facially and as

applied to Respondent.

Respectfully submitted

/s/ -

Justice R. Eugene Pincham, Respondent

SAM ADAM ROBERT E. PINCHAM, JR.

53 West Jackson Blvd. #1430 221 North LaSalle Street #2440

Chicago, Illinois 60604 Chicago, Illinois 60601

(312) 236-5543 (312) 782-0100

Attorneys for Respondent, R. EUGENE PINCHAM