NOTICE

This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.

 

 

 

No. 95-05

 

STATE OF WISCONSIN IN SUPREME COURT

 

 

In the Matter of the Amendment of

FILED

 
the Supreme Court Rules: SCR Chapter 60 -

Code of Judicial Ethics

 

JULY 1, 1996

 

 

Marilyn L. Graves

Clerk of Supreme Court Madison. WI

 

 

 

 

 

Rule amendment proceeding; Code of Judicial Ethics repealed and recreated.

 

PER CURIAM. On the petition of the Committee of Chief Judges filed December 29, 1994, the court has re-examined the report of the Code of Judicial Ethics Review Committee filed October 15, 1991 proposing the revision of the Code of Judicial Ethics, chapter 60 of the Supreme Court Rules. By order of June 24, 1992, the court had declined to adopt the proposed revision. 169 Wis. 2d XV.

Following reconsideration of the Review Committee's report and

 

the materials submitted to the court and presented at the two public hearings previously held in the matter, the court has determined that the current Code of Judicial Ethics should be revised to provide a more comprehensive statement of the ethical


No. 95-05

 

standards that guide and govern the judges and other judicial officers of the Wisconsin court system 1n their personal and professional conduct. Accordingly, the court adopts and promulgates the Code of Judicial Ethics set forth in the attached order, to become effective January 1, 1997.

The court's revision of the Code of Judicial Ethics does not include that portion of the Review Committee's proposal addressing the political activity of judges and judicial candidates. Because the Wisconsin judiciary is elective and nonpartisan, the court considers that the Review Committee's recommended provisions governing political and campaign activity require additional attention and formulation. The court has determined to refer the matter of political and campaign activity to a committee the court will appoint in the coming months, composed of judges, lawyers and public members, to examine the ethical and practical issues involved and to consult persons and entities experienced in judicial ethics pertaining to political and campaign activity. The committee will submit for the court's consideration proposed ethical rules addressing judges' and candidates' political and campaign activity, and the court will invite comment on them from the judiciary and from the public and will hold a public hearing in the matter. For the interim, the court promulgates as part of the revised Code of Judicial Ethics those provisions of the predecessor Code that deal with political and campaign activity.


No. 95-05

 

Changing circumstances over the three years since the last public hearing on the proposal to revise the Code of Judicial Ethics may have an unanticipated effect on the provisions adopted in the revised Code. In order to be fully advised of the efficacy of the revised Code and of any theoretical or practical problems in its enforcement, the court invites the members of the judiciary and other judicial officers governed by it, as well as the public, to file comments with the court expressing their concerns. Comments should be filed by November 1, 1997 so that the court may give prompt consideration to those concerns and take remedial action as needed.

In addition to the revision of the Code of Judicial Ethics, the Review Committee recommended the creation of a committee to render opinions on the propriety of judicial conduct under the Code of Judicial Ethics. The court accepts that recommendation and will establish by court rule a Judicial Ethics Advisory Committee to be in place when the revised Code of Judicial Ethics becomes effective January 1, 1997. The rule will specify, among other things, the committee's composition and authority, the procedure for its operation, and the effect and dissemination of its opinions.

The revised Code of Judicial Ethics here adopted is the culmination of the work begun 11 years ago when the court, on July

1, 1985, created the Code of Judicial Ethics Review Committee,

 

chaired by retired Chief Justice Bruce F. Beilfuss, to review the current Code and make recommendations for its revision. The Review


No. 95-05

 

Committee, chaired by Attorney Jack DeWitt following the death of

 

Justice Beilfuss, filed its report and recommendations May 11,

 

1987, and the court held a public hearing on them November 17,

 

1987.

 

At that public hearing, the Review Committee requested and was given the opportunity to address comments to its report that had been filed by the Wisconsin Judicial Commission. Before it could do so, it was learned that the American Bar Association, whose 1972

Code of Judicial Conduct had served as the basis for the Review

 

Committee's recommendations, was conducting a study of its own Code. Consequently, the court withheld further action on the Review Committee's report pending the outcome of the ABA study and directed the Review Committee to consider and make any revisions to its recommendations that might be necessitated by ABA action on its Code.

After the ABA adopted a revised Code of Judicial Conduct

 

August 7, 1990, the Review Committee filed a revised report October

 

15, 1991, and the court held a public hearing on it March 17, 1992. Upon consideration of the presentations made at that hearing and the material filed with the court, the court declined to adopt the proposed revision of the Code of Judicial Ethics.

In 1995, in response to the petition of the Committee of Chief Judges, the court undertook a re-examination of the Review Committee's proposal. Following lengthy and intensive consideration and revisions to that proposal, the court has


No. 95-05

 

determined that a revised Code of Judicial Ethics, as set forth in the order attached to this opinion, be adopted for the guidance and regulation of the conduct of Wisconsin judges.


 


 

 

 

 

SUPREME COURT OF WISCONSIN In the Matter of the Amendment of


FILED

 

JUL- 1 1996

 

Marjlyn Graves

Clerk of Supreme Court

Madison, WI


the Supreme Court Rules: SCR

Chapter 60 -- Code of Judicial Ethics


ORDER

No. 95-05


 

 

 

On December 29, 1994, the Committee of Chief Judges filed a petition requesting that the court re-examine the report and recommendations of the Code of Judicial Ethics Review Committee filed October 15, 1991 proposing the revision of the Code of Judicial Ethics, SCR chapter 60. By order of June 24, 1992, the court declined to adopt the proposed revision.

The court has reconsidered the report and recommendations of the Code of Judicial Ethics Review Committee and the materials submitted to the court and presented at two public hearings previously held in the matter and the court has made revisions to the Review Committee's proposal.

IT IS ORDERED that, effective January 1, 1997, chapter 60 of the Supreme Court Rules is repealed and recreated to read as set forth in the attachment to this order.

IT IS FURTHER ORDERED that notice of the repeal and recreation

 

of chapter 60 of the Supreme Court Rules be given by a single publication of a copy of this order and the attachment in the official state newspaper and in an official publication of the State Bar of Wisconsin.

Dated at Madison, Wisconsin, this 1st day of July, 1996.

 

BY THE COURT:

 

 

 


i I

I I ) '-. 'i '( ' (. .. '! \


Marilyn L. Marilyn L. Graves, Clerk


 

SCR CHAPTER 60

CODE OF JUDICIAL ETHICS

 

 

PREAMBLE

 

Our legal system is based on the principle that an independent, fair and competent judiciary will interpret and apply the laws that govern us. The role of the judiciary is central to American concepts of justice and the rule of law. Intrinsic to all provisions of this Code are the precepts that

judges, individually and collectively, must respect and honor the

judicial office as a public trust and strive to enhance and

maintain confidence in our legal system. The judge is an arbiter

of facts and law for the resolution of disputes and a highly

visible symbol of government under the rule of law.

 

The rules of the Code of Judicial Ethics are authoritative. The Commentary, has three varying functions: 1) to elaborate a standard in the rules; 2) to set forth policy bases for the

rules; or 3) by explanation and example, to provide guidance with respect to the purpose and meaning of the rules. The Commentary

1s not intended as a statement of additional rules.

 

When the text of a rule uses "shall," "shall not" or "may not," it is intended to impose binding obligations the violation of which can result in disciplinary action. For a judge's conduct to constitute a violation of a rule, the judge must have known or reasonably should have known the facts giving rise to the violation.

 

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. When "may" is used, it denotes permissible discretion or, depending on the context, it refers to action that is not covered by specific proscriptions.

 

The provisions of the Code of Judicial Ethics are rules of reason. They should be applied consistent with constitutional requirements, statutes, other court rules and decisional law and in the context of all relevant circumstances. The Code is to be construed so as not to impinge on the essential independence of judges in making judicial decisions.

 

The Code is designed to provide guidance to judges and candidates for judicial office and to provide a structure for regulating conduct through disciplinary agencies. It is not designed or intended as a basis for civil liability or criminal prosecution. Furthermore, the purpose of the Code would be subverted if the Code were invoked by lawyers or litigants for mere tactical advantage in a proceeding.


The provisions of the Code are intended to govern conduct of judges and to be binding upon them. It is not intended, however, that every transgression will result in disciplinary action. Whether disciplinary action is appropriate, and the degree of discipline to be imposed, should be determined through a reasonable and reasoned application of the text and should depend on such factors as the seriousness of the transgression, whether there is a pattern of improper activity and the effect of the improper activity on others or on the judicial system. See ABA Standards Relating to Judicial Discipline and Disability Retirement.

 

Because it is not possible to address every conceivable conduct of a judge that might erode public confidence in the integrity, independence and impartiality of the judiciary, some of the binding rules of the Code are cast in general terms setting forth the principles their specific provisions are intended to foster. See, for example, SCR 60.02, 60.03(1) and

60.05(1) and accompanying Comments. Those rules provide a touchstone against which judicial conduct, actual or contemplated, is to be measured. Care must be taken that the

Code's necessarily general rules do not constitute a trap for the

unwary judge or a weapon to be wielded unscrupulously against a

judge.

 

The Code of Judicial Ethics is not intended as an exhaustive guide for the conduct of judges. They should also be governed in their judicial and personal conduct by general ethical standards. The Code is intended, however, to state basic standards which should govern the conduct of all judges and to provide guidance

to assist judges in establishing and maintaining high standards

of judicial and personal conduct.


SCR 60.01 Definitions.

 

In this chapter:

 

(1) "Appropriate authority" means the chief judge of an offending judge's district, the director of state courts, the judicial commission and the board of attorneys professional responsibility.

(2) "Candidate" means a person seeking selection for or retention of a judicial office by means of election or appointment who makes a public announcement of candidacy,

declares or files as a candidate with the election or appointment

 

authority, or authorizes solicitation or acceptance of contributions or support.

(3) "Court personnel" means the clerk of court and sheriff

 

department employes providing staff services to the court. "Court personnel" does not include the lawyers in a judicial proceeding.

(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.

(5) "Economic interest" means ownership of a more than de minimis legal or equitable interest, or a relationship as officer, director, advisor or other active participant 1n the affairs of a party, except that none of the following is an economic interest:

(a) Ownership of an interest in a mutual or common

 

investment fund that holds securities, unless the judge


participates in the management of the fund or unless a proceeding pending or impending before the judge could substantially affect the value of the interest.

(b) Service by a judge as an officer, director, advisor or other active participant in an educational, religious, charitable, fraternal or civic organization, or service by a

judge's spouse or child as an officer, director, advisor or other

 

active participant in any organization.

 

(c) A deposit in a financial institution, the proprietary interest of a policyholder in a mutual insurance company, of a depositor in a mutual savings association or of a member in a credit union, or a similar proprietary interest, unless a proceeding pending or impending before the judge could substantially affect the value of the interest.

(d) Ownership of government securities, unless a proceeding pending or impending before the judge could substantially affect the value of the securities.

(6) "Fiduciary" means a personal representative, trustee,

 

attorney-in-fact, conservator or guardian.

 

(7) "Gift" means the payment or receipt of anything of value without valuable consideration.

(8) "Judge" means a justice of the supreme court, a judge

 

of the court of appeals, a judge of the circuit court, a reserve judge, a municipal judge, a court commissioner, and anyone, whether or not a lawyer, who is an officer of the judicial system and who performs judicial functions.


(9) " Knowingly" or "knowledge" means actual knowledge of the fact in question, which may be inferred from the circumstances.

(10) "Law" means court rules, statutes, constitutional provisions and legal conclusions in published court decisions.

(11) "Member of the judge's family" means the judge's

 

spouse, child, grandchild, parent, grandparent and any other relative or person with whom the judge maintains a close familial relationship.

(12) " Member of the judge's family residing in the judge's

 

household" means a relative of the judge by blood or marriage or a person treated by the judge as a member of the judge's family who resides in the judge's household.

(13) "Nonpublic information" means information that, by law, is not available to the public, including information that

is sealed by statute or court order, impounded or communicated in camera, offered in grand jury proceedings or contained in presentencing reports, dependency case reports or psychiatric reports.

(14) " Part-time municipal judge" or " part-time court

 

commissioner" means a judge or court commissioner who serves repeatedly on a part-time basis by election or under a continuing appointment.

(15) "Require" means the exercise of reasonable direction

 

and control over the conduct of those persons subject to the directions and control.


(16) "Third degree of kinship" means a person who is

 

related as a great-grandparent, grandparent, parent, uncle, aunt, brother, sister, child, grandchild, great-grandchild, nephew or niece.

 

SCR 60.02 A judge shall uphold the integrity and independence of the judiciary.

An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining and enforcing high standards of conduct and shall personally observe those standards so that the

integrity and independence of the judiciary will be preserved. This chapter applies to every aspect of judicial behavior except purely legal decisions. Legal decisions made in the course of judicial duty on the record are subject solely to judicial review.

 

COMMENT

 

Deference to the judgments and rulings of courts depends upon public confidence in the integrity and independence of the judges. The integrity and independence of judges depend in turn upon their acting without fear or favor. Although judges should be independent, they must comply with the law, including the provisions of this chapter. Public confidence in the impartiality of the judiciary is maintained by the adherence of

each judge to this responsibility. Conversely, violation of this

chapter diminishes public confidence in the judiciary and thereby

does injury to the system of government under law.

The role of the judicial conduct organization like the

Wisconsin Judicial Commission is not that of an appellate court.

Wis. Admin. Code Sec. JC 3.06 (May 1979) states as follows:

"Commission not to act as appellate court. The commission may

not function as an appellate court to review the decisions of a

court or judge or to exercise superintending or administrative

control over determinations of courts or judges." It is


important to remember this concept as one interprets this chapter, particularly in light of the practice of some groups or individuals to encourage dissatisfied litigants to file simultaneous appeals and judicial conduct complaints.

 

 

SCR 60.03 A judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities.

(1) 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.

 

COMMENT

 

Public confidence in the judiciary is eroded by irresponsible or improper conduct of judges. A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on the judge's conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.

The prohibition against behaving with impropriety or the appearance of impropriety applies to both the professional and personal conduct of a judge. Because it is not practicable to list all prohibited acts, the proscription is necessarily cast in general terms that extend to conduct by judges that is harmful although not specifically mentioned in the chapter. Actual improprieties under this standard include violations of law,

court rules or other specific provisions of this chapter. The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired.

Restrictions on the personal conduct of judges cannot, however, be so onerous as to deprive them of fundamental freedoms enjoyed by other citizens. Care must be taken to achieve a balance between the need to maintain the integrity and dignity of the judiciary and the right of judges to conduct their personal lives in accordance with the dictates of their individual consciences.

In striking this balance the following factors should be

considered:

(a) the degree to which the personal conduct is public or

private;

(b) the degree to which the personal conduct is a protected

individual right;


(c) the potential for the personal conduct to directly harm or offend others;

(d) the degree to which the personal conduct is indicative of bias or prejudice on the part of the judge;

(e) the degree to which the personal conduct is indicative of the judge's lack of respect for the public or the judicial/legal system.

See also Comment to sub. (3).

 

 

(2) 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.

 

COMMENT

 

Maintaining the prestige of judicial office is essential to a system of government in which the judiciary functions independently of the executive and legislative branches. Respect for the judicial office facilitates the orderly conduct of legitimate judicial functions. Judges should distinguish between proper and improper use of the prestige of office in all of their activities. For example, it would be improper for a judge to allude to his or her judgeship to gain a personal advantage such as deferential treatment when stopped by a police officer for a traffic offense. Similarly, judicial letterhead must not be used for conducting a judge's personal business.

A judge must avoid lending the prestige of judicial office

for the advancement of the private interests of others. For

example, a judge must not use the judge's judicial position to

gain advantage in a civil suit involving a member of the judge's

family. As to the acceptance of awards, see SCR 60.05 (4) (e) 1.

Although a judge should be sensitive to possible abuse of the prestige of office, a judge may, based on the judge's personal knowledge, serve as a reference or provide a letter of recommendation. Such a letter should not be written if the person who is the subject of the letter is or is likely to be a litigant engaged in a contested proceeding before the court. However, a judge must not initiate the communication of information to a sentencing judge or a probation or corrections


officer but may provide to such persons information for the record in response to a formal request.

Judges may participate in the process of judicial selection by cooperating with appointing authorities and screening committees seeking names for consideration and by responding to official inquiries concerning a person being considered for a judgeship.

A judge must not testify voluntarily as a character witness

because to do so may lend to the prestige of the judicial office

in support of the party for whom the judge testifies. Moreover,

when a judge testifies as a witness, a lawyer who regularly

appears before the judge may be placed in the awkward position of

cross-examining the judge. A judge may, however, testify when

properly summoned. Except in unusual circumstances where the

demands of justice require, a judge should discourage a party

from requiring the judge to testify as a character witness.

 

 

(3) A judge may not hold membership in any organization that practices invidious discrimination on the basis of race, gender, religion or national origin.

 

COMMENT

 

Membership of a judge in an organization that practices invidious discrimination gives rise to perceptions that the judge's impartiality is impaired. Whether an organization practices invidious discrimination is often a complex question to which judges should be sensitive. The answer cannot be

determined from a mere examination of an organization's current membership rolls but rather depends on how the organization selects members and other relevant factors, such as that the organization is dedicated to the preservation of religious, ethnic or cultural values of legitimate common interest to its members or that it is in fact and effect an intimate, purely private organization whose membership limitations could not be constitutionally prohibited.

Whether an organization, club or group is "private" depends on a review of the following factors: 1) size; 2) purpose; 3)

policies; 4) selectivity in membership; 5) congeniality; and 6) whether others are excluded from critical aspects of the relationship. An organization that is not "private" is generally said to discriminate invidiously if it arbitrarily excludes from membership on the basis of race, religion, sex or national origin persons who would otherwise be admitted to membership. See, New York State Club Ass'n. Inc. v. City of New York, 108 S. Ct. 2225,

101 L. Ed. 2d 1 (1988); Board of Directors of Rotary

International v. Rotary Club of Duarte,481 U.S. 537 (1987), 95


L. Ed. 2d 474; Roberts v. United States Jaycees, 468 U.S. 609 (1984). Organizations dedicated to the preservation of religious, fraternal, sororal, spiritual, charitable, civic or cultural values which do not stigmatize any excluded persons as inferior and therefore unworthy of membership are not considered to discriminate invidiously.

Public manifestation by a judge of the judge's knowing approval of invidious discrimination on any basis gives the appearance of impropriety and diminishes public confidence in the integrity and impartiality of the judiciary.

When a judge has reason to believe that an organization to which the judge belongs engages in invidious discrimination that would preclude membership under sub. (3) or under SCR 60.03, the judge may, in lieu of resigning, make immediate efforts to have the organization discontinue its invidiously discriminatory practices but must suspend participation in any other activities of the organization. If the organization fails to discontinue

its invidiously discriminatory practices as promptly as possible, the judge must resign from the organization.

 

 

SCR 60.04 A judge shall perform the duties of judicial office impartially and diligently.

The judicial duties of a judge take precedence over all the judge's other activities. The judge's judicial duties include all the duties of the judge's office prescribed by law.

(1) In the performance of the duties under this section,

 

the following apply to adjudicative responsibilities:

 

(a) A judge shall hear and decide matters assigned to the judge, except those in which recusal is required under sub. (4) or disqualification is required under section 757.19 of the statutes and except when judge substitution is requested and granted.

(b) A judge shall be faithful to the law and maintain

 

professional competence in it. A judge may not be swayed by partisan interests, public clamor or fear of criticism.


(c) A judge shall require order and decorum in proceedings before the judge.

(d) A judge shall be patient, dignified and courteous to

 

litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity and shall require similar conduct of lawyers, staff, court officials and others subject to the judge's direction and control. During trials and hearings, a judge shall act so that the judge's attitude, manner or tone toward counsel or witnesses does not prevent the proper presentation of the cause or the ascertainment of the truth. A judge may properly intervene if the judge considers it necessary to clarify a point or expedite the proceedings.

 

COMMENT

 

The duty to hear all proceedings fairly and with patience is not inconsistent with the duty to dispose promptly of the

business of the court. Judges can be efficient and businesslike while being patient and deliberate.

In respect to sub. (c), by order of June 4, 1996, the

Supreme Court adopted Standards of Courtesy and Decorum for the

Courts of Wisconsin, chapter 62 of the Supreme Court Rules.

 

 

(e) A judge shall perform judicial duties without bias or prejudice. A judge may not, in the performance of judicial duties, by words or conduct, manifest bias or prejudice, including bias or prejudice based upon race, gender, religion, national origin, disability, age, sexual orientation or socioeconomic status, and may not knowingly permit staff, court

officials and others subject to the judge's direction and control

 

to do so.


COMMENT

 

A judge must refrain from speech, gestures or other conduct that could reasonably be perceived as sexual harassment and must require the same standard of conduct of others subject to the judge's direction and control.

A judge must perform judicial duties impartially and fairly. A judge who manifests bias on any basis in a proceeding impairs the fairness of the proceeding and brings the judiciary into disrepute. Facial expression and body language, in addition to oral communication, can give to parties or lawyers in the proceedings, jurors, the media and others an appearance of judicial bias. A judge must be alert to avoid behavior that may be perceived as prejudicial.

 

 

(f) A judge shall require lawyers in proceedings before the judge to refrain from manifesting, by words or conduct, bias or prejudice based upon race, gender, religion, national origin, disability, age, sexual orientation or socioeconomic status against parties, witnesses, counsel or others. This subsection does not preclude legitimate advocacy when race, gender,

religion, national origin, disability, age, sexual orientation or socioeconomic status or other similar factors are issues in the proceeding.

(g) A judge shall accord to every person who has a legal

 

interest in a proceeding, or to that person's lawyer, the right to be heard according to law. A judge may not initiate, permit, engage in or consider ex parte communications concerning a pending or impending action or proceeding except that:

1. A judge may initiate, permit, engage in or consider ex

 

parte communications for scheduling, administrative purposes or emergencies that do not deal with substantive matters or issues on the merits if all of the following conditions are met:


a. The judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication.

b. When the ex parte communication may affect the substance of the action or proceeding, the judge promptly notifies all of the other parties of the substance of the ex parte communication and allows each party an opportunity to respond.

2. A judge may obtain the advice of a disinterested expert on the law applicable to a proceeding before the judge if the judge gives notice to the parties of the person consulted and the substance of the advice and affords the parties reasonable opportunity to respond.

3. A judge may consult with other judges or with court personnel whose function is to aid the judge in carrying out the judge's adjudicative responsibilities.

4. A judge may, with the consent of the parties, confer separately with the parties and their lawyers in an effort to mediate or settle matters pending before the judge.

5. A judge may initiate, permit, engage in or consider ex parte communications when expressly authorized by law.

 

COMMENT

 

The proscription against communications concerning a proceeding includes communications from lawyers, law teachers, and other persons who are not participants in the proceeding, except to the limited extent permitted.

To the extent reasonably possible, all parties or their lawyers shall be included in communications with a judge.

Whenever presence of a party or notice to a party is required by SCR 60.04 (1) (g), it is the party's lawyer, or if


the party is unrepresented, the party, who is to be present or to whom notice is to be given.

An appropriate and often desirable procedure for a court to obtain the advice of a disinterested expert on legal issues is to invite the expert to file a brief amicus curiae.

Certain ex parte communication is approved by SCR 60.04 (1) (g) to facilitate scheduling and other administrative purposes and to accommodate emergencies. In general, however, a judge

must discourage ex parte communication and allow it only if all the criteria stated in SCR 60.04 (1) (g) are clearly met. A judge must disclose to all parties all ex parte communications described in SCR 60.04 (1) (g) 1 and 2 regarding a proceeding pending or impending before the judge.

A judge must not independently investigate facts in a case

and must consider only the evidence presented.

A judge may request a party to submit proposed findings of

fact and conclusions of law, so long as the other parties are

apprised of the request and are given an opportunity to respond

to the proposed findings and conclusions.

A judge should not accept trial briefs that are not

exchanged with adversary parties unless all parties agree

otherwise in advance of submission of the briefs.

A judge must make reasonable efforts, including the

provision of appropriate supervision, to ensure that SCR 60.04

(1) (g) is not violated through law clerks or other personnel on

the judge's staff.

If communication between the trial judge and the appellate

court with respect to a proceeding is permitted, a copy of any

written communication or the substance of any oral communication

should be provided to all parties.

The prohibition of a lawyer's ex parte communication with a

judge and others is set forth in SCR 20:3.5.

 

 

(h) A judge shall dispose of all judicial matters promptly, efficiently and fairly.

 

COMMENT

 

In disposing of matters promptly, efficiently and fairly, a judge must demonstrate due regard for the rights of the parties to be heard and to have issues resolved without unnecessary cost or delay. Containing costs while preserving fundamental rights of parties also protects the interests of witnesses and the

general public. A judge should monitor and supervise cases so as to reduce or eliminate dilatory practices, avoidable delays and unnecessary costs. A judge should encourage and seek to facilitate settlement, but parties should not feel coerced into


surrendering the right to have their controversy resolved by the courts.

Prompt disposition of the court's business requires a judge to devote adequate time to judicial duties, to be punctual in attending court and expeditious in determining matters under submission, and to insist that court officials, litigants and their lawyers cooperate with the judge to that end.

 

 

(j) A judge may not, while a proceeding is pending or impending in any court, make any public comment that may reasonably be expected to affect the outcome or impair the fairness of the proceeding. The judge shall require court personnel subject to the judge's direction and control to similarly abstain from comment. This subsection does not prohibit a judge from making public statements in the course of his or her official duties or from explaining for public

information the procedures of the court. This paragraph does not

 

apply to proceedings in which the judge is a litigant in a personal capacity.

 

COMMENT

 

The requirement that judges abstain from public comment regarding a pending or impending proceeding continues during any appellate process and until final disposition. This paragraph does not prohibit a judge from commenting on proceedings in which the judge is a litigant in a personal capacity, but in cases such as a writ of mandamus where the judge is a litigant in an

official capacity, the judge must not comment publicly.

 

 

(k) A judge may not commend or criticize jurors for their verdict other than in a court order or opinion in a proceeding but may express appreciation to jurors for their service to the judicial system and the community.


COMMENT

 

Commending or criticizing jurors for their verdict may imply a judicial expectation in future cases and may impair a juror's ability to be fair and impartial in a subsequent case.

 

 

(m) A judge may not disclose or use, for any purpose unrelated to judicial duties, nonpublic information acquired in a judicial capacity.

(n) A judge may discuss nonpublic information regarding a case that has exhausted its appellate remedies.

(o) A judge shall cooperate with other judges as members of a common judicial system to promote the satisfactory administration of justice.

(2) In the performance of the duties under this section,

 

the following apply to administrative responsibilities: (a) A judge shall diligently discharge the judge's

administrative responsibilities without bias or prejudice and maintain professional competence in judicial administration, and should cooperate with other judges and court officials in the administration of court business.

(b) A judge shall require staff, court officials and others subject to the judge's direction and control to observe the standards of fidelity and diligence that apply to the judge and

to refrain from manifesting bias or prejudice in the performance of their official duties.

(c) A judge may not make unnecessary appointments. A judge shall exercise the power of appointment impartially and on the


basis of merit. A judge shall avoid nepotism and favoritism. A judge may not approve compensation of appointees beyond the fair value of services rendered.

 

COMMENT

 

Appointees of a judge include assigned counsel, officials such as referees, commissioners, special masters, receivers and guardians and personnel such as clerks, secretaries and bailiffs. Consent by the parties to an appointment or an award of compensations does not relieve the judge of the obligation prescribed by SCR 60.04 (2) (c).

 

 

(3) In the performance of the duties under this section the following apply to disciplinary responsibilities:

(a) A judge who receives information indicating a substantial likelihood that another judge has committed a violation of this chapter should take appropriate action. A judge having personal knowledge that another judge has committed

a violation of this chapter that raises a substantial question as to the other judge's fitness for office shall inform the appropriate authority.

(b) A judge who receives information indicating a

 

substantial likelihood that a lawyer has committed a violation of the rules of professional conduct for attorneys should take appropriate action. A judge having personal knowledge that a lawyer has committed a violation of the rules of professional conduct for attorneys that raises a substantial question as to

the lawyer's honesty, trustworthiness or fitness as a lawyer in

 

other respects shall inform the appropriate authority. This


paragraph does not require a judge to report conduct disclosed through a judge's participation in a group to assist ill or disabled judges or lawyers when such information is acquired in the course of assisting an ill or disabled judge or lawyer.

(c) Acts of a judge, in the discharge of disciplinary

 

responsibilities, required or permitted under par. (a) or (b) are part of a judge's judicial duties and shall be absolutely privileged and no civil action predicated on those acts may be instituted against the judge.

 

COMMENT

 

Appropriate action may include direct communication with the judge or lawyer who has committed the violation, other direct action if available, and reporting the violation to an

appropriate authority or other agency or body.

 

 

(4) Except as provided in sub. (6) for waiver, a judge shall recuse himself or herself in a proceeding when the facts and circumstances the judge knows or reasonably should know establish one of the following or when reasonable, well-informed persons knowledgeable about judicial ethics standards and the

justice system and aware of the facts and circumstances the judge

 

knows or reasonably should know would reasonably question the judge's ability to be impartial:

COMMENT

 

Under this rule, a judge must recuse himself or herself whenever the facts and circumstances the judge knows or reasonably should know raise reasonable question of the judge's ability to act impartially, regardless of whether any of the

specific rules in SCR 60.04 (4) applies. For example, if a judge

were in the process of negotiating for employment with a law


firm, the judge would be required to recuse himself or herself from any matters in which that law firm appeared, unless the recusal was waived by the parties after disclosure by the judge.

Section 757.19 of the statutes sets forth the circumstances

under which a judge is required by law to disqualify himself or

herself from any civil or criminal action or proceeding and

establishes the procedures for disqualification and waiver.

A judge should disclose on the record information that the

judge believes the parties or their lawyers might consider

relevant to the question of recusal, even if the judge believes

there is no real basis for recusal.

By decisional law, the rule of necessity may override the

rule of recusal. For example, a judge might be required to

participate in judicial review of a judicial salary statute or

might be the only judge available in a matter requiring immediate

judicial action, such as a hearing on probable cause or temporary

restraining order. In the latter case, the judge must disclose

on the record the basis for possible recusal and use reasonable

efforts to transfer the matter to another judge as soon as

practicable.

 

 

(a) The judge has a personal bias or prejudice concerning a party or a party's lawyer or personal knowledge of disputed evidentiary facts concerning the proceeding.

 

COMMENT

 

As a general matter, for recusal to be required under this provision, the personal bias or prejudice for or against a party or the personal knowledge of disputed facts must come from an extrajudicial source. A bias or prejudice requiring recusal most often arises from a prior personal relationship but may arise

from strong personal feelings about the alleged conduct of a

party. If a judge's personal bias or prejudice concerning a

party's lawyer is of such a degree as to be likely to transfer to

the party, the judge's recusal is required under this provision.

 

 

(b) The judge of an appellate court previously handled the action or proceeding as judge of another court.

(c) The judge served as a lawyer in the matter in

 

controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the


matter, or the judge has been a material witness concerning the matter.

 

COMMENT

 

A lawyer in a government agency does not ordinarily have an association with other lawyers employed by that agency within the meaning of SCR 60.04 (4) (d); a judge formerly employed by a government agency, however, should recuse himself or herself in a proceeding if the judge's impartiality reasonably may be questioned because of such association.

 

 

(d) The judge knows that he or she, individually or as a fiduciary, or the judge's spouse or minor child wherever residing, or any other member of the judge's family residing in the judge's household has an economic interest in the subject matter in controversy or in a party to the proceeding or has any other more than de minimis interest that could be substantially affected by the proceeding.

 

COMMENT

 

A financial interest requiring recusal does not occur solely because the judge is a member of a political or taxing body that is a party or is a ratepayer to a party. The test then remains whether the judge's interest as a taxpayer or ratepayer could be substantially affected by the outcome.

 

 

(e) The judge or the judge's spouse, or a person within the third degree of kinship to either of them, or the spouse of such

a person meets one of the following criteria:

 

1. Is a party to the proceeding or an officer, director or trustee of a party.

2. Is acting as a lawyer in the proceeding.


3. Is known by the judge to have a more than de minimis interest that could be substantially affected by the proceeding.

4. Is to the judge's knowledge likely to be a material

 

witness in the proceeding.

 

 

COMMENT

 

The fact that a lawyer in a proceeding is affiliated with a law firm with which a relative of the judge is affiliated does not of itself require the judge's recusal. Under appropriate circumstances, the fact that the judge's impartiality may reasonably be questioned or that the relative is known by the judge to have an interest in the law firm that could be "substantially affected by the outcome of the proceeding" may require the judge's recusal.

Recusal is not required under this provision if the judge determines on the record that a subpoena purporting to make his or her relative a witness is false, sham or frivolous.

 

 

(5) A judge shall keep informed of the judge's own personal and fiduciary economic interests and make a reasonable effort to keep informed of the personal economic interests of the judge's spouse and minor children residing in the judge's household, having due regard for the confidentiality of the spouse's business.

(6) A judge required to recuse himself or herself under sub. (4) may disclose on the record the basis of the judge's recusal and may ask the parties and their lawyers to consider, out of the presence of the judge, whether to waive recusal. If,

following disclosure of any basis for recusal other than personal

 

bias or prejudice concerning a party, the parties and lawyers, without participation by the judge, all agree that the judge should not be required to recuse himself or herself and the judge


is then willing to participate, the judge may participate in the proceeding. The agreement shall be incorporated in the record of the proceeding.

 

COMMENT

 

A waiver procedure provides the parties an opportunity to proceed without delay if they wish to waive the recusal. To assure that consideration of the question of waiver is made independently of the judge, a judge must not solicit, seek or hear comments on a possible waiver of the recusal unless the lawyers jointly propose a waiver after consultation as provided in the rule. A party may act through counsel if counsel represents on the record that the party has been consulted and consents. As a practical matter, a judge may wish to have all parties and their lawyers sign the waiver agreement.

 

 

SCR 60.05 A judge shall so conduct the judge's extra- judicial activities as to minimize the risk of conflict with judicial obligations.

(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.

 

(b) Demean the judicial office.

 

(c) Interfere with the proper performance of judicial duties.

 

COMMENT

 

Complete separation of a judge from extra-judicial activities is neither possible nor wise; a judge should not become isolated from the community in which the judge lives.

Expressions of bias or prejudice by a judge, even outside

the judge's judicial activities, may cast reasonable doubt on the


judge's capacity to act impartially as a judge. See SCR 60.03 (1) and (3).

 

 

(2) Avocational Activities. 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.

 

 

COMMENT

 

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, including revision of substantive and procedural law and improvement of criminal and juvenile 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. Judges may participate in efforts to promote the fair administration of justice, the independence of the judiciary and the integrity of the legal profession and may express opposition to the persecution of lawyers and judges in other countries because of their professional activities.

In this and other subsections of SCR 60.05, the phrase

"subject to the requirements of this chapter" is used, notably in

connection with a judge's governmental, civic or charitable

activities. This phrase is included to remind judges that the

use of permissive language in various provisions of the chapter

does not relieve a judge from the other requirements of the

chapter that apply to the specific conduct.

 

 

(3) Governmental, Civic or Charitable Activities.

 

(a) A judge may not appear at a public hearing before, or otherwise consult with, an executive or legislative body or official except on matters concerning the law, the legal system or the administration of justice or except when acting pro se in a matter involving the judge or the judge's interests.


COMMENT

 

See SCR 60.03 (2) regarding the obligation to avoid improper influence.

As provided in SCR 60.07(2), sub. (3)(a) does not apply to a judge serving on a part-time basis.

 

 

(b) A judge may not accept appointment to a governmental committee or commission or other governmental position that is concerned with issues of fact or policy on matters other than the improvement of the law, the legal system or the administration of justice. A judge may represent a country, state or locality on ceremonial occasions or in connection with historical,

educational or cultural activities and may serve on a governmental or private committee, commission or board concerned with historical, educational or cultural activities. A judge may serve in any branch of miliary reserves and be called to duty in the active military.

 

COMMENT

 

A judge is prohibited from accepting any governmental position except one relating to the law, legal system or administration of justice as authorized by par. (c). The appropriateness of accepting extra-judicial assignments must be assessed in light of the demands on judicial resources created by crowded dockets and the need to protect the courts from involvement in extra-judicial matters that may prove to be controversial. Judges should not accept governmental

appointments that are likely to interfere with the effectiveness and independence of the judiciary.

This provision does not govern a judge's service in a non governmental position. See par. (c) permitting service by a judge with organizations devoted to the improvement of the law, the legal system or the administration of justice and with educational, religious, charitable, fraternal or civic organizations not conducted for profit. For example, service on the board of a public educational institution, unless it were a law school, would be prohibited, but service on the board of a


public law school or any private educational institution would generally be permitted under par. (c).

As provided in SCR 60.07(2), sub. (3)(b) does not apply to a judge serving on a part-time basis.

 

 

(c) 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 or of a nonprofit educational, religious, charitable, fraternal, sororal or civic organization, subject to the following limitations and the other requirements of this chapter:

 

COMMENT

 

This provision does not apply to a judge's service in a governmental position unconnected with the improvement of the law, the legal system or the administration of justice; see par. (b).

See Comment to SCR 60.05 (2) regarding use of the phrase

"subject to the following limitations and the other requirements

of this chapter." As an example of the meaning of the phrase, a

judge permitted by this provision to serve on the board of a

fraternal institution may be prohibited from such service by SCR

60.03 (1) or (3) or 60.05 (1) if the institution practices

invidious discrimination or if service on the board otherwise

casts reasonable doubt on the judge's capacity to act impartially

as a judge.

Service by a judge on behalf of a civic or charitable

organization may be governed by other provisions of SCR 60.05 in

addition to sub. (3). For example, a judge is prohibited by sub.

(7) from serving as a legal advisor to a civic or charitable

organization.

 

 

1. A judge may not serve as an officer, director, trustee

 

or nonlegal advisor if it is likely that the organization will do any of the following:


a. Engage in proceedings that would ordinarily come before the judge.

b. Engage frequently in adversary proceedings in the court of which the judge is a member or in any court subject to the appellate jurisdiction of the court of which the judge is a member.

 

COMMENT

 

The changing nature of some organizations and of their relationship to the law makes it necessary for a judge to regularly re-examine the activities of each organization with which the judge is affiliated to determine if it is proper for the judge to continue the affiliation. For example, in many jurisdictions charitable hospitals are now more frequently in court than in the past. Similarly, the boards of some legal aid organizations now make policy decisions that may have political significance or imply commitment to causes that may come before the courts for adjudication.

As provided in SCR 60.07(2), par. (c) l.b. does not apply to

a judge serving on a part-time basis.

 

 

2. A judge, in any capacity:

 

a. May assist the organization in planning fund-raising activities and may participate in the management and investment

of the organization's funds but may not personally participate in the solicitation of funds or other fund-raising activities,

except that a judge may solicit funds from other judges over whom

 

the judge does not exercise supervisory or appellate authority;

 

 

COMMENT

 

As provided in SCR 60.07(2), par. (c) 2.a. does not apply to a judge serving on a part-time basis.


b. May make recommendations to public and private fund- granting organizations on projects and programs concerning the law, the legal system or the administration of justice;

c. May not personally participate in membership

 

solicitation if the solicitation reasonably may be perceived as coercive or, except as permitted in subd. 2 a, if the membership solicitation is essentially a fund-raising mechanism; and

COMMENT

 

As provided in SCR 60.07(2), par. (c) 2.c. does not apply to a judge serving on a part-time basis.

 

 

d. May not use or permit the use of the prestige of judicial office for fund raising or membership solicitation.

 

COMMENT

 

A judge may solicit membership or endorse or encourage membership efforts for an organization devoted to the improvement of the law, the legal system or the administration of justice or

a nonprofit educational, religious, charitable, fraternal or civic organization as long as the solicitation cannot reasonably be perceived as coercive and is not essentially a fund-raising mechanism. Solicitation of funds for an organization and solicitation of memberships similarly involve the danger that the person solicited will feel obligated to respond favorably to the solicitor if the solicitor is in a position of influence or control. A judge must not engage in direct, individual solicitation of funds or memberships in person, in writing or by telephone except in the following cases: 1) a judge may solicit for funds or memberships other judges over whom the judge does

not exercise supervisory or appellate authority, 2) a judge may

solicit other persons for membership in the organizations

described above if neither those persons nor persons with whom

they are affiliated are likely ever to appear before the court on

which the judge serves, and 3) a judge who is an officer of such

an organization may send a general membership solicitation

mailing over the judge's signature.

SCR 60.05 should not be read as proscribing participation in

deminimisfund-raising activities so long as a judge is careful

to avoid using the prestige of the office in the activity. Thus,


e.g., a judge may pass the collection basket during services at church, may ask friends and neighbors to buy tickets to a pancake breakfast for a local neighborhood center and may cook the pancakes at the event but may not personally ask attorneys and others who are likely to appear before the judge to buy tickets

to it. Similarly, SCR 60.05 should not be read to prohibit

judges from soliciting memberships for religious purposes, but

judges must nevertheless avoid using the prestige of the office

for the purpose of such solicitation.

Use of an organization letterhead for fund raising or

membership solicitation does not violate subd. 2 provided the

letterhead lists only the judge's name and office or other

position in the organization and, if comparable designations are

listed for other persons, the judge's judicial designation. In

addition, a judge must make reasonable efforts to ensure that the

judge's staff, court officials and others subject to the judge's

direction and control do not solicit funds on the judge's behalf

for any purpose, charitable or otherwise.

A judge may be a speaker or guest of honor at an

organization's fund-raising event provided there is no

advertising of the judge as speaker or guest of honor in order to

encourage people to attend and make contributions and provided

that any contributions at the event are made prior to the judge's

speech or presentation as guest of honor. A judge's attendance

at such event is permissible if otherwise consistent with this

chapter.

 

 

(4) Financial Activities.

 

(a) 1. A judge may not engage in financial or business dealings that could meet any of the following conditions:

a. Reasonably be perceived to exploit the judge's judicial position.

b. Involve the judge in frequent transactions or continuing

 

business relationships with those lawyers or other persons likely to come before the court on which the judge serves.

 

COMMENT

 

As provided in SCR 60.07(2), sub. (4)(a)l.b. does not apply to a judge serving on a part-time basis.


2. A judge shall comply with sub. (4)(a)1 as soon as reasonably possible and, in any event, within one year of the applicability of this chapter to the judge.

 

COMMENT

 

When a judge acquires in a judicial capacity information, such as material contained in filings with the court, that is not yet generally known, the judge must not use the information for private gain. See SCR 60.03 (2) and 60.04 (1) (m).

A judge must avoid financial and business dealings that involve the judge in frequent transactions or continuing business relationships with persons likely to come either before the judge personally or before other judges on the judge's court. In addition, a judge should discourage members of the judge's family from engaging in dealings that would reasonably appear to exploit the judge's judicial position. This rule is necessary to avoid creating an appearance of exploitation of office or favoritism

and to minimize the potential for recusal or disqualification.

With respect to affiliation of relatives of a judge with law

firms appearing before the judge, see Comment to SCR 60.04 (4)

relating to recusal.

Participation by a judge in financial and business dealings

is subject to the general prohibitions in SCR 60.05 (1) against

activities that tend to reflect adversely on impartiality, demean

the judicial office, or interfere with the proper performance of

judicial duties. Such participation is also subject to the

general prohibition in SCR 60.03 against activities involving

impropriety or the appearance of impropriety and the prohibition

in SCR 60.03 (2) against the misuse of the prestige of judicial

office. In addition, a judge must maintain high standards of

conduct in all of the judge's activities, as set forth in SCR

60.02. See Comment to SCR 60.05 (2) regarding use of the phrase

"subject to the requirements of this chapter."

If engaged in a financial or business activity at the time

this chapter becomes applicable to the judge, a judge may

continue to do so for a reasonable period not to exceed one year.

 

 

(b) A judge may, subject to the requirements of this chapter, hold and manage investments of the judge and members of the judge's family, including real estate, and engage in other remunerative activity.


COMMENT

 

Subject to the requirements of this chapter, a judge may hold and manage investments owned solely by the judge, investments owned solely by a member or members of the judge's

family, and investments owned jointly by the judge and members of

the judge's family.

As provided in SCR 60.07(2), sub. (4)(b) does not apply to a

judge serving on a part-time basis.

 

 

(c) 1. A judge may not serve as an officer, director, manager, general partner, advisor or employe of any business entity except that a judge may, subject to the requirements of this chapter, manage and participate in any of the following:

a. A business closely held by the judge or members of the judge's family.

b. A business entity primarily engaged in investment of the financial resources of the judge or members of the judge's

family.

 

2. A judge shall comply with par. (c) 1 as soon as reasonably possible and, in any event, within one year of the applicability of this chapter to the judge.

 

COMMENT

 

Subject to the requirements of this chapter, a judge may participate in a business that is closely held either by the judge alone, by members of the judge's family, or by the judge and members of the judge's family. Also, subject to the requirements of this chapter, a judge may participate in the activities of a "not for profit" (charitable) business.

Although participation by a judge in a closely-held family business might otherwise be permitted by sub. (4) (c), a judge may be prohibited from participation by other provisions of this

chapter when, for example, the business entity frequently appears before the judge's court or the participation requires

significant time away from judicial duties. Similarly, a judge

must avoid participating in a closely-held family business if the


judge's participation would involve misuse of the prestige of judicial office.

A judge may continue to serve under (c) 1 for the period of time necessary to avoid serious adverse consequences to the business entity but in no event longer than one year.

As provided in SCR 60.07(2), sub. (4)(c) does not apply to a

judge serving on a part-time basis.

 

 

(d) A judge shall manage the judge's investments and other financial interests so as to minimize the number of cases in which the judge's recusal or disqualification is required.

 

COMMENT

 

As provided in SCR 60.07(2), sub. (4)(d) does not apply to a judge serving on a part-time basis.

 

 

(e) A judge may not accept, and shall urge members of the judge's family residing in the judge's household not to accept, a gift, favor or loan from anyone except for the following:

 

COMMENT

 

Sub. (4) (e) does not apply to contributions to a judge's campaign for judicial office.

Because a gift, favor or loan to a member of the judge's family residing in the judge's household might be viewed as intended to influence the judge, a judge must inform those family members of the relevant ethical constraints upon the judge in

this regard and discourage those family members from violating

them. A judge cannot, however, reasonably be expected to know or

control all of the financial or business activities of all family

members residing in the judge's household.

As provided in SCR 60.07(2), sub. (4)(e) does not apply to a

judge serving on a part-time basis.

 

 

1. A gift incident to a public testimonial, books, tapes and other resource materials supplied by publishers on a complimentary basis for official use, or an invitation to the


judge and the judge's spouse or guest to attend a bar-related function or an activity devoted to the improvement of the law, the legal system or the administration of justice.

 

COMMENT

 

Acceptance of an invitation to a law-related function is governed by sub. (4) (e) 1; acceptance of an invitation paid for by an individual lawyer or group of lawyers is governed by sub. (4) (e) 8.

A judge may accept a public testimonial or a gift incident thereto only if the donor organization is not an organization whose members comprise or frequently represent the same side in litigation, and the testimonial and gift are otherwise 1n compliance with other provisions of this chapter. See SCR 60.05 ( 1) (a) and 60.03 (2).

 

 

2. A gift, award or benefit incident to the business, profession or other separate activity of a spouse or other family member of a judge residing in the judge's household, including gifts, awards and benefits for the use of both the spouse or

other family member and the judge, provided the gift, award or

 

benefit could not reasonably be perceived as intended to influence the judge in the performance of judicial duties.

3. Ordinary social hospitality.

 

4. A gift from a relative.

 

5. A gift from a friend for a special occasion, such as a wedding, anniversary or birthday, if the gift is fairly commensurate with the occasion and the relationship.

 

COMMENT

 

A gift to a judge, or to a member of the judge's family living in the judge's household, that is excessive in value

raises questions about the judge's impartiality and the integrity


of the judicial office and might require recusal or disqualification of the judge where recusal or disqualification would not otherwise be required. See, however, par. (e) 5.

 

 

6. Anything of value if the activity or occasion for which it is given is unrelated to the judge's use of the state's time, facilities, services or supplies not generally available to all citizens of this state and the judge can show by clear and convincing evidence that it was unrelated to and did not arise from the judge's holding or having held a public office.

7. A gift, favor or loan from a relative or close personal

 

friend whose appearance or interest in a case would in any event require recusal under SCR 60.04(4).

8. A loan from a lending institution in its regular course of business on the same terms generally available to persons who are not judges.

9. A scholarship or fellowship awarded on the same terms and based on the same criteria applied to other applicants.

10. Any other gift, favor or loan, only if the donor is not a party or other person who has come or is likely to come or

whose interests have come or are likely to come before the judge.

 

 

COMMENT

 

Unless authorized by other provisions of sub. (4) (e), sub. (4)(e) 10 prohibits judges from accepting gifts, favors or loans from lawyers or their firms if they have come or are likely to come before the judge; it also prohibits gifts, favors or loans from clients of lawyers or their firms when the clients' interests have come or are likely to come before the judge. See sec. 19.43 et seq., Stats.


(5) Fiduciary Activities.

 

(a) A judge may not serve as executor, administrator or other personal representative, trustee, guardian, attorney-in- fact or other fiduciary, except for the estate, trust or person of a member of the judge's family, and then only if such service will not interfere with the proper performance of his or her judicial duties.

(b) A judge may not serve as a fiduciary if it is likely that the judge as a fiduciary will be engaged in proceedings that would ordinarily come before the judge or if the estate, trust or ward becomes involved in adversary proceedings in the court on which the judge serves or one under its appellate jurisdiction.

(c) The same restrictions on financial activities that

 

apply to a judge personally also apply to the judge while acting in a fiduciary capacity.

(d) A judge shall comply with pars. (a) and (b) as soon as

 

reasonably possible and, in any event, within one year of the applicability of this chapter to the judge.

 

COMMENT

 

A judge who is a fiduciary at the time this chapter becomes effective for the estate or person of one who is not a member of the judge's family may continue to act as such if the demands on his or her time and the possibility of a conflict of interest are not substantial and for the period of time necessary to avoid serious adverse consequences to the beneficiary of the fiduciary relationship but in no event longer than one year.

The restrictions imposed by SCR 60.05 may conflict with the

judge's obligation as a fiduciary. For example, a judge should

resign as trustee if detriment to the trust would result from

divestiture of holdings the retention of which would place the

judge in violation of sub. (4) (d).


As provided in SCR 60.07(2), sub. (5) does not apply to a judge serving on a part-time basis.

 

 

(6) Service as Arbitrator or Mediator. A judge may not act as an arbitrator or mediator or otherwise perform judicial functions in a private capacity unless expressly authorized by law.

COMMENT

 

Paragraph (6) does not prohibit a judge from participating in arbitration, mediation or settlement conference performed as part of judicial duties.

As provided in SCR 60.07(2), sub. (6) does not apply to a judge serving on a part-time basis.

 

 

(7) Practice of Law. A judge may not practice law. Notwithstanding this prohibition, a judge may act pro se and may, without compensation, give legal advice to and draft or review documents for a member of the judge's family and represent

without compensation the estate of a person with whom the judge

 

maintains a close familial relationship so long as the estate remains uncontested.

 

COMMENT

 

This prohibition refers to the practice of law in a representative capacity and not in a pro se capacity. A judge may act for himself or herself in all legal matters, including matters involving litigation and matters involving appearances before or other dealings with legislative and other governmental bodies. However, in so doing, a judge must not abuse the prestige of office to advance the interests of the judge or judge's family. See SCR 60.03 (2).

The chapter allows a judge to give legal advice to and draft legal documents for members of the judge's family, so long as the judge receives no compensation. A judge must not, however, act

as an advocate for a member of the judge's family in a legal

matter.


The restraint against a judge giving advice to parties in matters before the judge does not prohibit a judge from advising such parties to obtain lawyers or medical treatment and from advising such parties on similar matters unrelated to the merits of the matter before the judge.

As provided in SCR 60.07(2), sub. (7) does not apply to a judge serving on a part-time basis.

 

 

(8) Compensation, Reimbursement and Reporting.

 

(a) Compensation and Reimbursement. A judge may receive compensation and reimbursement of expenses for the extra-judicial activities permitted by this chapter if the source of such payments does not give the appearance of influencing the judge's performance of judicial duties or otherwise give the appearance

of impropriety.

 

1. Compensation may not exceed a reasonable amount nor may the compensation exceed what a person who is not a judge would receive for the same activity.

2. Expense reimbursement shall be limited to the actual

 

cost of travel, food and lodging reasonably incurred by the judge and, where appropriate to the occasion, by the judge's spouse or guest. Any payment in excess of that amount is compensation.

(b) Financial Reports. Except as provided in SCR 60.07, a

 

judge shall file with the ethics board a timely financial report as required by section 19.43 of the statutes. The report shall also be filed by commissioners of the supreme court, staff attorneys of the court of appeals, the director of state courts, members of the board of attorneys professional responsibility and members of the board of bar examiners.


COMMENT

 

The chapter does not prohibit a judge from accepting honoraria or speaking fees provided that the compensation is reasonable and commensurate with the task performed. A judge should ensure, however, that no conflicts are created by the arrangement. A judge must not appear to trade on the judicial position for personal advantage. Nor should a judge spend significant time away from court duties to meet speaking or writing commitments for compensation. In addition, the source of the payment must not raise any question of undue influence or the judge's ability or willingness to be impartial.

See SCR 60.05 (4) (e) and sec. 19.56, Stats., regarding reporting of gifts and loans.

As provided in SCR 60.07(2), sub. (8) does not apply to a judge serving on a part-time basis.

 

 

SCR 60.06 A judge or judicial candidate shall refrain from inappropriate political activity.

 

NOTE: Because the Wisconsin judiciary is elective and nonpartisan, rules governing a judge's political and campaign activity that may be appropriate in other jurisdictions may not be responsive to the political and campaign realities in this state. Accordingly, in order that due consideration be given to

the preparation and promulgation of such rules, the Supreme Court will appoint a committee composed of judges, lawyers, and public members to consult persons and entities experienced in the matter of judicial ethics as it pertains to political and campaign activity and draft for the court's consideration a comprehensive set of ethical rules in this area. After the committee files its recommendations with the court, the court will invite comment and hold a public hearing on the proposal.

Pending submission of that committee's report, the public

hearing and the court's action in the matter, the court

promulgates the following provisions from the Supreme Court Rules

-- 1994.

 

 

(1) Candidate for office. A judge shall not become a candidate for a federal, state or local nonjudicial elective office without first resigning his or her judgeship.


COMMENT

 

This rule was considered necessary because of the possibility that a candidacy for an office to take effect after the expiration of the judicial term would not be barred by SCR

60.04. It was felt that the appeal to the electorate by a

sitting judge for a nonjudicial office was inherently in conflict

with his or her duty to serve impartially all of the people.

 

 

(2) Party membership. Except for activities concerning his or her own election, a judge shall not be a member of any political party or participate in its affairs, caucuses, promotions, platforms, endorsements, conventions or activities.

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.

 

COMMENT

 

As an individual, a judge is entitled to his or her personal view on political questions and to rights and opinions as a citizen. However, as a member of Wisconsin's nonpartisan judiciary, a judge must avoid any conduct which associates him or her with any political party. This rule does not preclude a

judge from attending a political meeting as a member of the public, but he or she shall not attend as a participant.

 

 

(3) Promises. A judge who is a candidate for judicial office shall not make or permit others to make in his or her behalf promises or suggestions of conduct in office which appeal to the cupidity or partisanship of the electing or appointing power. A judge shall not do or permit others to do in his or her behalf anything which would commit the judge or appear to commit the judge in advance with respect to any particular case or controversy or which suggests that, if elected or chosen, the


judge would administer his or her office with partiality, bias or favor.

 

COMMENT

 

As provided in SCR 60.07(2), SCR 60.06 does not apply to a judge serving on a part-time basis.

 

 

SCR 60.07 Applicability.

 

(1) Subject to sub. (2), all judges shall comply with this chapter.

(2) A judge who serves on a part-time basis, including a

 

reserve judge, a part-time municipal judge and a part-time court commissioner, is not required to comply with the following: SCR

60.05(3)(a), (b), (c)1.b., 2.a.and c., (4)(a)1.b., (b), (c), (d)

 

and (e), (5), (6), (7) and (8) and SCR 60.06.