Supreme
Court of Wisconsin
Judicial
Conduct Advisory Committee OPINION
98-3
Date
Issued: February 19, 1998
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ISSUE
May a judge participate in writing
the script for and performing in a skit to raise money for a charitable
organization?
ANSWER
The judge may assist in writing the
script, but may not perform in the skit.
FACTS
Prior to assuming the bench, a judge
has participated in an annual fund-raising activity for a charitable
organization. The activity involves a
performance of skits, with scripts written in part by the judge, which lampoon
local personalities, including members of government and the justice
system. The performance is widely
publicized in the local community and is well-attended as a major fund-raiser
for the charitable organization.
DISCUSSION
The Committee concludes that the
issue presented involves provisions of SCR 60.05(3), 60.01(4), 60.03(2),
60.03(1) and 60.05(1).
A. SCR 60.05(3), 60.01(4), and 60.03(2)
SCR 60.05(3)(c)2.a states that:
2. A judge, in any capacity:
a. May assist [a nonprofit charitable]
organization in planning fund-raising activities ... but may not personally
participate in the solicitation of funds or other fund-raising activities....
SCR 60.05(3)(c)2.d states that:
2. A judge, in any capacity:
....
d. May not use or permit the use of the
prestige of judicial office for fund raising....
These rules must be applied in
combination in light of the proposed activities. The lengthy Comment to SCR 60.05(3)(c)2.d gives insight into
application of this rule. It states in
part:
SCR
60.05 should not be read as proscribing participation in de minimis
fund-raising activities so long as a judge is careful to avoid using the
prestige of the office in the activity.
The term
“de minimis” is defined in SCR 60.01(4):
“De
minimis” means an insignificant interest that does not raise reasonable
question as to a judge’s impartiality or use of the prestige of the office.
Because the act of writing the
script for the skits takes place behind the scenes, out of the public eye, it
does not involve the use of the prestige of judicial office. Writing the script does not involve the
actual solicitation of funds. If the
script were written but the skit never performed, the ability of the charity to
raise funds would not be affected.
Therefore, writing the script constitutes a de minimis
fund-raising activity, and is permitted by SCR 60.05.
However, the actual performance of
the skits does constitute a fund-raising activity, and acting in a skit
obviously constitutes personal participation.
Because the humor in the skits is intended to attract attendance at the
event and improve the ability of the charity to raise money, such participation
would constitute participation by the judge in a fund-raising activity. Further, because the identity of the judge
is well-known at an event intended to attract the local community,
participation in the skit could by inference be taken to constitute the use of
the prestige of the office on behalf of the charitable activity. Such actions are also proscribed by SCR
60.03(2), which states in part that:
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.
Therefore, the Committee concludes
that the various provisions of SCR 60.05, 60.01, and 60.03, cited above, allow
participation in writing the script but preclude acting in its performance.
B. SCR 60.03(1) and 60.05(1)
How might the judge’s participation
in the actual performance of the skits be viewed by the community? Two additional sections of the Code of
Judicial Conduct give cause for concern.
These sections are applied jointly because each involves the issue of
the public image of a judge. SCR
60.03(1) states that:
A
judge ... shall act at all times in a manner that promotes public confidence in
the integrity and impartiality of the judiciary.
SCR
60.05(1) states in part that:
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.
b) Demean the judicial office ....
The proposed activity involves the
public performance of skits which make fun of prominent local citizens, many of
whom are responsible for the administration of the law, much in the manner of a
celebrity roast. The activity is open
to view by all citizens in attendance.
While it is intended to be in good fun, not all citizens will
necessarily interpret this humor in the same way. It may be taken by some to indicate a special (or “cozy”)
relationship between the judge and public officials, thus casting doubt on the
ability of the judge to be impartial and undermining public confidence in the
integrity of the judiciary.
The Comment to SCR 60.03(1) sets
forth five criteria by which a judge’s protected free-speech conduct must be
appraised. As to three of these
criteria, the proposed activity fails:
it is public; it may be taken to indicate bias on the judge’s part; and
the deprecation of some public officials may be taken to indicate the judge’s
lack of respect for the judicial/legal system.
Although the humor is not intended to indicate bias or lack of respect,
intent is not the point. Rather, the
question is whether a citizen not privy to the inner workings of government and
the judicial/legal system could reasonably construe the skit in that
manner. The Committee believes that
such an interpretation is possible.
Therefore, on these additional grounds, the Committee finds that
performance in the charity fund-raising skit is not permitted by SCR 60.03(1)
and 60.05(1).
It might be suggested that because
the judge had engaged in the proposed activity prior to assuming the bench,
continuation of the activity would therefore be permissible. However, application of such a principle would
result in the creation of two classes of judges: those who could engage in an activity prohibited by the Code of
Judicial Conduct because they had done so before becoming a judge, and those
who could not. In the opinion of the
Committee, such a state of affairs would be both illogical and contrary to the
intent of the Code of Judicial Conduct.
CONCLUSION
The Committee concludes that a judge
may participate in the writing of a script for a skit to be performed at a
charitable fund-raising event, but may not participate in the actual
performance of the skit.
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. 98-3 issued by the Judicial Conduct Advisory Committee for the
State of Wisconsin this 19th day of February, 1998.
_________________________________
Thomas
H. Barland
Chair