Supreme Court of Wisconsin
Judicial Conduct Advisory
Committee OPINION
97-2
Date Issued: July 28, 1997
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ISSUE
To what extent, if any, may a
full-time court commissioner assist a spouse in hosting a political
fund-raising activity in their home?
ANSWER
A court commissioner may assist a
spouse in all non-visible activities.
FACTS
The spouse of a full-time court
commissioner is politically active and holds fund-raisers in their home. The court commissioner does not contact
individuals or committees concerning the event. He does not greet the guests nor become involved in any of the
fund-raising activities. He assists his
spouse by (1) performing household cleaning tasks both before and after the
event; (2) child care; (3) food preparation; and (4) replenishment of
food/beverages while the activity is conducted.
The court commissioner asks whether
his activities, as outlined above, are in violation of SCR 60.06.
DISCUSSION
The issue presented involves SCR
60.01(8), making a court commissioner subject to the Code of Judicial Conduct,
and SCR 60.06, requiring a judge to refrain from inappropriate political
activity.
A.
SCR 60.01(8)
SCR 60.01(8) includes in the
definition of "judge" those holding office as court commissioners.
The Committee concludes that court
commissioners are subject to the Code of Judicial Conduct and shall, therefore,
refrain from inappropriate political activity.
B.
SCR 60.06
SCR 60.06 provides:
A
judge or judicial candidate shall refrain from inappropriate political
activity.
Subsection (2) of the Rule provides,
in part, that a judge shall not be a member of any political party or
participate in any of its affairs or activities. In addition, the Code states at 60.06(2):
A
judge shall not make or solicit financial or other contributions in support of
its causes or publicly endorse or speak on behalf of its candidates or
platforms.
It is recognized that the Code does
not address political activities of a judge's spouse, nor could it in view of
the First Amendment. The Committee
concludes that the court commissioner's assistance in cleaning the house,
preparing food and providing child care, both before and after the event, and
out of view of the fund-raising participants, does not constitute inappropriate
political activity. Because they are
not public or visible to those not resident in the home, such efforts could not
be viewed as promoting or engaging in a political party's affairs or activities
and would not constitute a solicitation of funds or endorsement of a candidate.
A closer question concerns the court
commissioner's presence at the fund-raiser by either listening to the speakers
or replenishing food and beverage during the affair. The issue is one of visibility:
would those present view the commissioner's presence as an endorsement
of the person for whom the fund-raiser was held?
The Committee concludes that to
avoid the appearance of participation in the fund-raiser, the commissioner
should not be seen by those attending the event. Is the commissioner required to leave the house? No.
Presence in a part of the residence not utilized by the participants
would not be deemed inappropriate political activity, nor an endorsement of the
candidate. However, if the confines of
the house are such that the commissioner would probably be seen by some/all of
those in attendance, the committee concludes that the commissioner should leave
the premises while the event is conducted.
". . .
a judge must take all reasonable measures to dissociate himself or herself from
[the events] including steps to avoid being seen by those in attendance during
the events, which if necessary would involve leaving the premises for
the duration of the events."
[Emphasis added.]
Gray's
Political Activity By Members of a Judge's Family, citing U.S.
Compendium of Selected Opinions, s. 7.3(d) (1995).
CONCLUSION
The Committee concludes that a court
commissioner and all other persons subject to the Code may assist a spouse in
setting up their residence for the political fund-raiser and in cleaning up
after the event, and in other supporting activities, so long as such activities
are not visible to the fund-raising participants. A person subject to the Code may not be visible to those
participating in the event.
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. 97-2 issued by the Judicial Conduct Advisory Committee for the
State of Wisconsin this _____ day of _________________, 1997.
_________________________________
Thomas
H. Barland
Chair