Supreme
Court of Wisconsin
Judicial
Conduct Advisory Committee OPINION
97-3
Date
Issued: September 18, 1997
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ISSUE
Must a judge testify when
subpoenaed?
ANSWER
Yes.
FACTS
The judge was subpoenaed for a
deposition in a pending Federal sexual harassment case. The judge may be asked to testify as to
facts and character. The judge is not
hearing the case.
DISCUSSION
This issue concerns the provisions
of SCR 60.03(2) governing conduct which is improper or creates the appearance
of impropriety and a judge’s obligations with respect to testifying as a
character witness.
SCR
60.03(2)
SCR 60.03(2) states:
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.
The Committee concludes that SCR
60.03(2) does not prohibit a judge from testifying as a fact witness. The Rule prohibits a judge from voluntarily
testifying as a character witness.
Nonetheless, the Comment to this section directs that “a judge should
discourage a party from requiring the judge to testify as a character
witness.” The Committee therefore
concludes that the judge should seek to discourage the party from using the
judge as a character witness. The
Preamble to the Code defines “should” as follows:
The
use of “should” or “should not” in the rules is intended to encourage or
discourage specific conduct and as a statement of what is or is not appropriate
conduct but not as a binding rule under which a judge may be disciplined.
However,
if the judge’s efforts are unsuccessful, the judge is under the same obligation
as any other subpoenaed witness to respond.
CONCLUSION
The Committee concludes that SCR
60.03(2) means that a judge shall not voluntarily testify as a character
witness. In addition, a judge should
discourage a party from requiring the judge to testify as a character
witness. The term “should” is not
mandatory. However, the judge is under
the same obligation as any other subpoenaed witness to respond.
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. 97-3 issued by the Judicial Conduct Advisory Committee for the
State of Wisconsin this _____ day of _________________, 1997.
_________________________________
Thomas
H. Barland
Chair