Supreme Court of Wisconsin
Judicial Conduct
Advisory Committee OPINION 00-5
Date Issued: January 8, 2002
ISSUE
May a
reserve judge serve as president of a civic, non-profit organization, a
substantial part of whose mission is to advocate social goals through
litigation and legislative action?
ANSWER
No.
FACTS
A
reserve judge wishes to be a candidate for president of a civic, non-profit
organization. The organization is a
local branch of a national organization which advocates certain social goals,
and actively pursues them using a variety of means, including public protest
and civil disobedience, legislative change, and litigation on both national and
local levels. Legal assistance is
provided to local branches by the national organization. Officers of the organization may serve as
spokespersons in seeking to advance the organization’s interests. The president of the local branch serves a
two-year term, is elected by local members, and receives no compensation. The reserve judge acknowledges that recusal
would be necessary in any case involving the civic organization. Reserve judges
do not have to accept assignments, and there are other reserve or other judges
available to handle such litigation.
DISCUSSION
The
Committee concludes that the issue presented involves provisions of SCR
60.03(2), 60.04(4), 60.05(1), 60.05(3),
and 60.07.
A. SCR
60.07
Pursuant to SCR 60.07(2), reserve judges are not
required to comply with SCR 60.05(3)(c)1.b., 2.a., and 2.c. These exemptions allow reserve judges to
participate in some activities regarding service for private organizations to a
greater degree than full-time judges.
Examples of such service permitted by a reserve judge, but not by a
full-time judge, include personal solicitation of funds for and membership in
an organization. However, pursuant to
SCR 60.07(1), all judges must comply with the remainder of the code. Therefore,
reserve judges are still subject to SCR 60.03, 60.05(3)(c)1.a. and
60.05(3)(c)2.d.
B. SCR
60.03(2)
Reserve
judges are not exempt from SCR 60.03, which states:
A judge shall avoid
impropriety and the appearance of impropriety in all of the judge’s activities.
In
addition, SCR 60.03(2) states:
A judge may not lend the
prestige of judicial office to advance the private interests of the judge or of
others . . .
To
satisfy this provision of the Code while serving as president of a civic
organization, a judge must not be identified as a judge when speaking for the
organization. This may be difficult,
particularly in public appearances, since the news media often identify the
occupation of newsworthy individuals.
The president of an active, advocacy-oriented civic organization is
frequently in the public eye, often by design.
For example, it is likely that the organization’s president would be
expected to lead any campaign on issues of concern to the organization. Further, individuals within the organization
could inadvertently use the judge’s title in discussing or publicizing the work
of their organization’s leader. Such
use of a judge’s title in connection with his or her work in this civic
organization could constitute using the prestige of judicial office to advance
the interests of the organization, which is prohibited by SCR 60.03. The committee concludes that such a
violation is highly probable in this case.
C. SCR 60.05
Reserve
judges are not exempt from all the provisions of SCR 60.05. That section is entitled: “A judge shall so conduct the judge’s
extra-judicial activities as to minimize the risk of conflict with judicial
obligations.”
SCR
60.05(3)(c) permits all judges, not just reserve judges, to serve as an officer
of a civic organization, “subject to the following limitations and the other
requirements of this chapter.”
Limitations within SCR 60.05(3)(c)2.d are applicable to all judges. As stated above, reserve judges are not specifically exempt from this provision
and must comply with it as well. SCR
60.05(3)(c)2.d. states: a judge “may
not use or permit the use of the prestige of judicial office for fundraising or
membership solicitation.” The comments
to that section make clear that:
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 or 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.
And,
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.
We
conclude the following by comparing these permissive and restrictive sections
of the Code. A reserve judge may serve
as president of a civic, nonprofit organization and may participate in its
fund-raising and membership solicitation, subject to some limitations. When engaged in these activities, the
reserve judge may not lend the prestige of judicial office to the
activities. Given the public nature of
the role of president of this organization and the fact that fundraising and
membership solicitation are frequently an important part of the role of
president, it is unlikely that a
reserve judge could avoid lending the prestige of office to such activities. In sum, we conclude there would be a
significant likelihood of violation of SCR 60.05(3)(c)2.d.
D. SCR
60.04(4) and 60.05(1)(a) and (c)
Reserve
judges are subject to SCR 60.04(4), and 60.05(1)(a) and (c). These provisions of the Code involve the
issues of impartiality and the proper performance of judicial duties.
SCR
60.04(4) provides for mandatory recusal or waiver in a proceeding where the
judge is an officer or director of an organization which is a party to the
litigation and
. . . 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.
SCR
60.05(1)(a) provides 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.
. . . .
(c) Interfere with the
proper performance of judicial duties.
These provisions of SCR 60.05 are mandatory and
not waivable by the litigants.
The
reserve judge acknowledges that recusal is required whenever the organization
is a party to the litigation. However,
that does not end the inquiry. SCR
60.04(4) and 60.05(1)(a) and (c) may also be contravened when the organization
is not a litigant in the case. The
civic organization at issue advocates specific social goals, is frequently
involved as a litigant, and frequently pursues legislative changes. In addition, the organization is very public
in its activities. The president is
inevitably identified with these goals and often serves as their advocate. Therefore, the judge could not be reasonably
perceived as impartial in cases in which the organization is a litigant. The judge could also be perceived as not
impartial in cases in which the social goals of the organization are in dispute
or substantially a part of the litigation.
Taken together, these provisions require that a judge exercise recusal
whenever the organization is a litigant and whenever the organization’s social
goals are a significant issue in a case.
A reserve judge serving as president of the organization in question
would have much greater difficulty identifying in a timely manner what cases
would require recusal. Given this
difficulty, a reserve judge could discover the need for recusal only after the
litigation was in progress. This could
interfere with the proper performance of judicial duties by creating costly
delays. The judge must take care to
exercise recusal, obtain appropriately available waivers, and avoid delays, or
risk contravening the Code.
CONCLUSION
The
Committee concludes that a reserve judge may not serve as president of a civic,
non-profit organization, a substantial part of whose mission is to advocate
social goals through litigation and legislative action. It appears likely that the prestige of
judicial office would be used (even if inadvertently) to advance the interests
of the organization, particularly in the areas of advocacy and fund-raising. Further, service as the organization’s
president could compromise the perception that the judge is impartial, and has
some potential to interfere with the proper performance of judicial duties.
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. 00-5 issued by the Judicial
Conduct Advisory Committee for the State of Wisconsin this _____ day of
January, 2002.
________________________________
Thomas H. Barland
Chair