OPINION
06-02
ISSUE
May a Judge
handle cases where the judge’s son was in charge of or a part of an
investigation which resulted in the issuance of citations and/or charges?
ANSWER
No
FACTS
A joint Municipal Court presides over a community that is
administered to by a police department that employs three full time police
officers and a part time police chief.
The Judge’s son is one of the full time officers.
DISCUSSION
The committee addressed a similar question in Opinion
04-1 when it was asked if a part time Municipal Judge may have an “of counsel”
relationship with a law firm. The
committee’s response read in part “These appearances are viewed from the
perspective of the public, which expects a high standard of conduct on the part
of judges…” The committee has also
addressed a related issue in Opinion 00-1 which dealt with a judge hearing
cases in which attorneys from the law firm in which the judge’s niece
practices, represents litigants before the judge. The answer was “yes, with
some caution”. More directly the committee finds that this
issue is covered under the following Supreme Court rule and sections:
Supreme Court Rule 60.04 (4)
States: 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:
.
Absent a valid waiver under SCR
60.04 (6) the judge must recuse based on the fact that there is an
inevitable appearance of bias if the judge’s son were the arresting
officer. Further that appearance of bias
is prevalent if the son were not the arresting officer but had any significant
involvement in the case. Pursuant to
Wisconsin Statute officers may rely on reports of fellow officers to initiate
or conduct an investigation or to act by way of arrest while in their official
capacity. The Judge’s son may at some
point have particular knowledge regarding an incident that can be shared and
then relied upon by fellow officers.
This places the Judge’s son in the position of being a potential
material witness.
Supreme Court Rule 60.04 (4) (e) 3.
States:
(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..
(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:
3. Is known by the judge to have a more
than a de minimis interest that could be substantially affected by the
proceeding.
If
the Judge’s son were the arresting officer then the son’s involvement would be
directly impacted by any decision made by the court.
Supreme Court Rule 60.04 (4) (e) 4.
States:
(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..
(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..
4. Is to the judge’s
knowledge likely to be a material witness in the proceeding.
While it may not occur in
all situations there are certainly times that the officer in question may be
placed in a position that he would be considered a material witness. It is not necessary for an individual to
testify in order to qualify as a material witness but having knowledge of the
particular incident before the court may place a person in such a status. The son of the Judge, being within the third
degree of kinship, would consequently fall into this category.
CONCLUSION
A judge may not handle cases
where the judge’s son was either in charge of or part of any investigation
leading to citations or charges pending before the court.
The judge must recuse
himself if the judge’s son has any significant involvement in the case.
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
of Public Officials and Employees, subchapter III of Chapter 19 of the
statutes.
I hereby certify that this
is Formal Opinion 06-2 issued by the Judicial Conduct Advisory Committee for
the state of Wisconsin on this 12th day of October, 2006.
/s/
George S. Curry
___________________________
George S.
Curry
Chair