Judicial
Conduct Advisory Committee
OPINION 02-1
May a judge
who handles juvenile matters on a rotating basis serve as a mentor to a
juvenile who has been diverted out of the court system into an alternative
program?
No.
The diversion program was established jointly by the court, the local bar and the juvenile intake office. As such, the local judiciary is directly involved in approving the goals and procedures of the program and reviewing the program on a periodic basis.
This court
diversion program involves juveniles who are required to participate in the
program under a deferred prosecution agreement or a consent decree. The placement of a particular juvenile with
a judge mentor would necessarily only be for a juvenile who has neither
appeared before the judge mentor in the past nor is likely to appear before the
judge in the future. The program is intended to have the mentor become an
integral part of the diverted youth’s life.
A mentor is supposed to strengthen the youth’s self-esteem while
building trust and providing constructive experiences for the youth. The diversion program requires that mentors
file monthly reports logging their activity with the youth as well as two
“feedback forms.”
The
Committee concludes that the issues presented are governed by the provisions of
SCR 60.03(2) and SCR 60.05(1)(a) and (c).
A. SCR 60.03 states:
A judge shall avoid impropriety and the appearance of
impropriety in all of the judge’s activities.
Subsection (2) of this Rule provides:
A judge may not allow family, social, political or
other relationships to influence the judge’s judicial conduct or judgment. A judge may not lend the prestige of
judicial office to advance the private interests of the judge or of others or
convey or permit others to convey the impression that they are in a special
position to influence the judge. A
judge may not testify voluntarily as a character witness.
A juvenile in a diversion program who is
assigned a judge as a mentor could believe that he or she is being treated in a
special manner, or is in a position to influence the mentoring judge or the
presiding juvenile judge. Others in the
program, and the public, could harbor the same belief.
A judge’s
role as a mentor for a juvenile would become particularly problematic if the
diversion program were to fail. When
the juvenile comes to court, a number of potential conflicts arise due to the
special relationship between this judge and this juvenile. Colleagues of the judge may be influenced to
treat the juvenile differently from other juveniles. The public perception of
the bench could be adversely affected if the juvenile commits a serious crime
while being mentored by the judge. The
juvenile may attempt to use his or her relationship with the judge to influence
court proceedings.
B. SCR 60.05 states:
A judge shall so conduct the judge’s extra-judicial
activities as to minimize the risk of conflict with judicial obligations.
Subsection
(1) of this Rule provides:
(1)
Extra-judicial activities in general. A
judge shall conduct all of the judge’s extra-judicial activities so that they do
none of the following:
(a) Cast
reasonable doubt on the judge’s capacity to act impartially as a judge.
. . .
(c) Interfere with the proper performance of
judicial duties.
A mentoring
judge’s activity may interfere with the proper performance of his or her
judicial duties. The judge’s role as a
mentor could influence future proceedings involving the mentored juvenile. The
dispositional or sentencing court would have to consider the juvenile’s record,
which could include the monthly reports and feedback forms filed by the
mentoring judge. This situation could
affect the ability of the mentoring judge’s judicial colleagues to act
impartially if they were to consider the impact of the mentoring judge on the
juvenile. Finally, a judge acting as a
mentor may be perceived as biased in favor of the program or its participants.
CONCLUSION
The
Committee concludes that a judge should not become a mentor in a
court-sanctioned juvenile diversion program.
APPLICABILITY
This
opinion is advisory only, is based on the specific facts and questions
submitted by the petitioner to the Judicial Conduct Advisory Committee, and is
limited to questions arising under the Supreme Court Rules, Chapter 60—Code of
Judicial Conduct. This opinion is not
binding upon the Wisconsin Judicial Commission or the Supreme Court in the
exercise of their judicial discipline responsibilities. This opinion does not purport to address
provisions of the Code of Ethics for Public Officials and Employees, subchapter
III of Ch. 19 of the statutes.
I hereby
certify that this is Formal Opinion No. 02-1 issued by the Judicial Conduct
Advisory Committee for the State of Wisconsin this 21st day of February, 2003.
________________________________
Thomas H. Barland
Chair