Supreme Court of Wisconsin
Judicial Conduct Advisory Committee OPINION
99-3
Date Issued:
April 14, 1999
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ISSUE
May a
circuit court judge serve on the editorial board of Wisconsin Opinions,
a weekly newspaper devoted to the publication of the appellate opinions of the
Wisconsin Supreme Court, the Wisconsin Court of Appeals, United States District
Court, United States Seventh Circuit, Wisconsin trial courts and news of
interest to the bench and bar of Wisconsin?
ANSWER
Yes, as
long as the judge serves anonymously after the initial introduction of
editorial board members to Wisconsin Opinion readers.
FACTS
A
circuit court judge has been invited to serve on the Editorial Board of Wisconsin
Opinions. Wisconsin Opinions
is a private, for-profit enterprise.
The members of the board will consist of attorneys and legal
professionals. The board will have
three tasks: 1) to offer critiques of
recent stories and general feedback about the publication; 2) to offer
(non-credited) suggestions for stories in progress; and, 3) to occasionally
take positions on issues of law and the legal profession for the editorial page. The judge would be exempted from the third
task, which non-participation would be prominently noted.
Wisconsin
Opinions intends to run a photo of each board member--once only, and not as
an advertisement--to introduce the board to readers of the newspaper. The judge would be identified as a judge,
but would not be pictured in a robe.
DISCUSSION
The
committee concludes that the issue presented involves the provisions of SCR
60.03(1) & (2) and SCR 60.05(1), (2) & (3)(c).
A. SCR
60.05(2) & (3)(c)
SCR
60.05(2) states:
A judge may
speak, write, lecture, teach and participate in other extra-judicial activities
concerning the law, the legal system, the administration of justice and
nonlegal subjects, subject to the requirements of this chapter.
The
comment to SCR 60.05(2) states:
As a
judicial officer and person specially learned in the law, a judge is in a
unique position to contribute to the improvement of the law, the legal system,
and the administration of justice, . . .
To the extent that time permits, a judge is encouraged to do so, either
independently or through a bar association, judicial conference or other
organization dedicated to the improvement of the law.
SCR
60.05(3)(c) states:
A judge may
serve as an officer, director, trustee or nonlegal advisor of an organization
or governmental agency devoted to the improvement of the law, the legal system
or the administration of justice . . .
subject to the following limitations and the other requirements of this
chapter: . . .
The
Code of Judicial Conduct permits judges to engage in extra-judicial activities
which focus on law and justice. As
noted in the Comment to SCR 60.05(2), the code not only permits but encourages
judges to use their learning and expertise to improve the law, the legal system
and the administration of justice. The
judge's membership on the editorial board would place the judge in a position
to fulfill that role. Although Wisconsin
Opinions is a private, for-profit enterprise, the newspaper devotes itself
to the dissemination of court decisions and opinions and to the publication of
news of interest to judges and attorneys in Wisconsin. The judge's participation in two of the
editorial board's tasks is an opportunity to improve the law, the legal system
and the administration of justice.
The
judge will critique stories, offer feedback and make suggestions about stories
in progress. The judge serves as a
nonlegal advisor to Wisconsin Opinions, as contemplated within the
meaning of SCR 60.05(3)(c). The judge's
role is limited to the editorial policy regarding topics in current or future
issues of the newspaper. The judge will
not be involved in writing, commenting upon or taking positions on issues of
law or procedure. Although Wisconsin
Opinions does not describe itself as an organization "devoted" to
the improvement of the law, the legal system and the administration of justice,
the judge's participation as a nonlegal advisor, as described in the first two
tasks of the editorial board, will assist Wisconsin Opinions in its
presentation of timely topics and news to judges and attorneys in
Wisconsin. Publication of court
opinions and reporting of news items to judges and attorneys serve to improve
the legal system.
B. SCR
60.03(1)&(2) and SCR 60.05(1)(a)
SCR
60.03(1) states:
A judge
shall respect and comply with the law and shall act at all times in a manner
that promotes public confidence in the integrity and impartiality of the
judiciary.
SCR 60.03(2) states, in part:
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.
SCR 60.05(1)(a) states:
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.
As
noted above in SCR 60.05(2) and (3)(c), a judge's participation in
extra-judicial activity is "subject to the requirements of this
chapter." A judge has an absolute
duty to maintain the dignity, integrity and impartiality of the judicial
office. A judge may not allow any
organization to which the judge provides nonlegal advice to use the prestige of
judicial office to advance private interests.
The judge's service on the Editorial Board may not be used to enhance
the prestige or advance the private interests of Wisconsin Opinions. For example, the judge's participation as an
editorial board member may not be used to attract new subscribers to Wisconsin
Opinions.
The
committee concludes that the judge may not be identified after the initial
announcement and introduction of the Editorial Board. Although photographs of the judge and of other board members will
appear with the announcement, the judge will not be photographed in a
robe. In addition, Wisconsin
Opinions will publish a one-time disclaimer to advise readers that the
judge does not participate in determining or formulating the publication's
position on legal or other issues stated on the editorial page. Wisconsin Opinions must publish the
disclaimer with the initial announcement of board members, but not thereafter
so as to avoid emphasizing the judge's membership on the Editorial Board.
Finally,
Wisconsin Opinions may not identify the judge in any repeated or routine
listing of Editorial Board members, even if other board members are identified
as attorneys or other professionals.
The committee concludes that limiting the publication of the judge's
participation on the Editorial Board is necessary to avoid the possibility that
Wisconsin Opinion readers may believe that the judge is lending the
prestige of the judicial office to news articles or editorial columns appearing
in the newspaper.
A
judge's participation in any extra-judicial activity must not cast reasonable
doubt on the judge's capacity to act impartially. Although service on an editorial board may seem to suggest the
absence of impartiality, the judge will not participate in the board's task of
occasionally taking positions on issues of law and the legal profession. In addition, the judge's non-participation
in that task will be prominently noted, but only once. Therefore, the judge's participation on the
editorial board will not cast reasonable doubt on the judge's capacity to act
impartially.
CONCLUSION
The
committee concludes that a circuit court judge may serve as a member of the
editorial board of Wisconsin Opinions
and may serve as a nonlegal advisor,as long as the judge's identity as a
judge is not used to enhance the private interests of Wisconsin Opinions. The judge may be introduced, along with
other board members, in the announcement of the creation of the editorial
board. The introduction may include a
photograph of the judge, but not in a robe.
Thereafter, the judge's service as an editorial board member must not be
acknowledged.
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. 99-3 issued by the Judicial
Conduct Advisory Committee for the State of Wisconsin, this 14th day of April,
1999.
_________________________________
Thomas
H. Barland
Chair