Supreme
Court of Wisconsin
Judicial Conduct Advisory Committee OPINION
00-4
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ISSUE
May a judge testify at a Canadian
administrative tribunal hearing on behalf of an interest group which seeks a
binding administrative rule declaring that the Canadian Human Rights Act
applies to the Canadian judiciary?
ANSWER
Yes.
FACTS
A Canadian lawyer who represents
certain disability groups in Canada has contacted the Wisconsin judge who has a
disability. The lawyer has advised that
the Canadian judiciary believes that it is not bound by the Canadian Human
Rights Act, which requires that people with disabilities be accommodated when
seeking or using governmental services.
The interest group is seeking the promulgation of an administrative rule
declaring that the Canadian judiciary is bound by the Canadian Human Rights
Act. To that end, the group took the
matter before the Canadian Human Rights Commission, which has directed that the
issue be submitted to a tribunal for an administrative hearing.
The lawyer has asked the judge to
testify as an expert witness before the tribunal in support of the proposed
administrative rule. The judge is the
former chair of the American Bar Association’s Commission on Mental and
Physical Disability Law and has taught extensively on a national level about
the workings of the Americans With Disabilities Act (ADA) in the United
States. The judge uses modern
technology in his judicial work to meet his special needs. The judge anticipates that his testimony
before the tribunal would address both of these experiences.
DISCUSSION
The committee concludes that the
issue involves the provisions of SCR 60.03(2), and SCR 60.05(1), (2) and
(3).
SCR 60.03 states:
A
judge shall avoid impropriety and the appearance of impropriety in all of the
judge's activities.
Subsection
(2) states in relevant part:
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.
While the judge's
proposed testimony would support the cause of the interest group, the committee
concludes that the judge’s appearance before the administrative tribunal would
not improperly lend the prestige of the judicial office to others within the
meaning of SCR 60.03(2). The judge is
proposed as a witness not only because he is a judge, but also because he uses
modern technology in his judicial work to meet his needs and because he is an
expert concerning the ADA. As such, the
judge falls into a narrow and limited category of potential expert witnesses
who can educate the tribunal on these topics.
SCR 60.05(2) states:
(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.
On the same theme, SCR
60.05(3)(a), provides in relevant part:
A
judge may not appear at a public hearing before, or otherwise consult with, an
executive or legislative body of official except on matters concerning the law,
the legal system or the administration of justice....
As noted, the purpose
of the judge’s testimony is to educate the foreign tribunal about the workings
of the ADA in this country and the benefits that modern technology brings to
persons with disabilities. Such
testimony would concern "the law, the legal system" and “the
administration of justice" as permitted by SCR 60.05(2) and (3)(a).
Finally, the committee
does not see the judge's proposed testimony as barred by the considerations set
out in SCR 60.05(1) which state:
(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.
Because the purpose of
the judge’s proposed testimony is educational, it does not call into question
the impartiality of the judge nor demean the judicial office. Nor does it appear that the judge’s role as
a witness would interfere with the proper performance of the judge’s duties.
CONCLUSION
Because the purpose of
the judge's proposed testimony is educational, thereby serving the interests of
"the law, the legal system, and the administration of justice" as
contemplated by SCR 60.05(2) and (3)(a), the judge’s proposed appearance before
the foreign tribunal does not improperly lend the prestige of the judicial
office to others under SCR 60.03(2) nor violate any of the considerations set
out in SCR 60.05(1).
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 purpose 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. 00-4 issued by the Judicial Conduct Advisory
Committee for the State of Wisconsin, this 31st day of July, 2001.
_______________________________
Thomas
H. Barland
Chair