Supreme Court of Wisconsin
Judicial Conduct Advisory Committee OPINION
99-2
Date Issued:
April 14, 1999
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ISSUE
May a
circuit court judge perform in an ecumenical Easter program?
ANSWER
Yes, as
long as the judge's title is not associated in any manner with the promotion or
production of the event, and as long as the purpose of the event is not to
raise funds.
FACTS
A judge
wishes to perform in a theater production entitled "The Living
Dramatization of Leonardo da Vinci's 'Last Supper'". The production is described as a one hour
program of drama, music and worship.
The set depicts da Vinci's famous painting. The script is a series of soliloquies by each of the apostles
interspersed with songs sung by a choir.
The production is staged in the city auditorium. Although there is no charge for admission,
baskets are placed at the exits for donations.
Donations are used to cover production expenses and as seed money for
the next year's production. Any excess
money that is collected is donated to local charities.
Prior
to becoming a judge, the requestor had played the role of Jesus in previous
productions. The role has no lines and
simply requires the actor to remain still while the apostles perform the
soliloquies. The judge's title will not
be associated with the production in any way.
The requestor wishes to continue participating in the production.
DISCUSSION
The
Committee concludes that the issue presented involves the provisions of SCR 60.03(1),
60.05(1)(a) and (b), and 60.05(3)(c)2d.
A. SCR
60.03(1) and 60.05(1)(a) and (b)
SCR
60.03(1) states:
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.
SCR
60.05(1)(a) and (b) state:
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.
The
commentary to SCR 60.03(1) explains:
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.
The
committee has weighed the factors outlined in the above commentary. As to the first factor, the production is
performed in a public facility, but only those wishing to attend will view the
production.
Second,
the proposed personal conduct is a protected individual right. To perform in this type of production is an
exercise of religious freedom enjoyed by other citizens.
Upon
examining the third factor we conclude the potential for this proposed personal
conduct to directly harm or offend others is relatively small. Those who choose to attend this production
are not likely to be harmed or offended by the judge's participation in the
production.
The
fourth factor to be considered relates to bias or prejudice which the public
may perceive the judge to have. The
committee recognizes that the judge's participation in a Christian oriented
production may be seen as indicative of bias or prejudice on religious
issues. This is a factor that a judge
should carefully consider before engaging in religious oriented conduct that
may be observed by the public.
Finally,
the proposed conduct does not indicate the judge's lack of respect for the
public or the judicial system. Because
the judge has participated in this production for many years prior to becoming
a judge, it is clear that the judge has not been asked to participate in the
production because of the judge's status.
The judge's title is not associated with the performance or production
in any way. Therefore, the judge's
participation does not demean the judicial office in any manner.
Having
balanced all of the above factors, we conclude that the proposed conduct as
outlined in this request does not violate the above sections of the Code.
B. 60.05(3)(c)2d
SCR
60.05(3)(c)2d states:
[A
judge in any capacity] may not use or permit the use of the prestige of
judicial office for fund raising or membership solicitation.
The
production in this case is not a fund raising event. Tickets are not sold for the performances. Although baskets are placed at the exits for
voluntary donations, fund raising is not the purpose of the event. Since the judge's title is not listed in any
written materials, the judge's position and prestige of the judicial office are
not associated with the production in any way.
The committee concludes that participation in this production does not
violate the prohibition against fund raising activities.
CONCLUSION
A judge
may appear in an ecumenical community Easter production, as long as the judge's
title is not associated in any manner with the promotion or production of the
event, and as long as the purpose of the event is not to raise funds.
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. 99-2 issued by the Judicial
Conduct Advisory Committee for the State of Wisconsin, this 14th day of April,
1999.
_________________________________
Thomas H. Barland
Chair