Supreme Court of Wisconsin
Judicial Conduct Advisory
Committee OPINION
99-1
Date Issued: January 29, 1999
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ISSUE
May
a full-time municipal judge serve as a neutral third person[1],
without pay, if appointed by a circuit court judge?
ANSWER
No.
FACTS
The
requestor is a full-time municipal judge who would like to serve as a neutral
third person in cases in circuit court.
The requestor expects to receive an appointment to act as a neutral
third person from one or more circuit court judges. The requestor will not receive any pay from any source and will
not engage in these activities while being paid by the municipality.
DISCUSSION
The
Committee concludes that the issues presented involve the provisions of SCR
60.01(8) and SCR 60.05(6).
SCR
60.01(8) defines a “judge” as:
[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.
SCR
60.05(6) states:
A
judge may not act as an arbitrator or mediator or otherwise perform judicial
functions in a private capacity unless expressly authorized by law.
This
rule provides for an absolute prohibition against a judge's acting as an
arbitrator, mediator, or otherwise performing judicial functions in a private
capacity. The only exception to this
absolute prohibition is the judge’s action being “expressly authorized by law.”
The
issue in the case turns on the meaning of the word “expressly” in SCR
60.05(6). BLACK'S LAW DICTIONARY 581 (6th ed. 1990) defines
“expressly” as “[i]n an express manner; in direct or unmistakable terms;
explicitly; definitely; directly.” The
same edition defines “express” as “[c]lear; definite; explicit; plain; direct;
unmistakable; not dubious or ambiguous.”
The Committee must apply these definitions to the facts under
consideration.
To
the Committee’s knowledge, there is no statute expressly authorizing a
circuit court judge to appoint a full-time municipal court judge as a
third-party neutral without pay. In
order to have the power to issue such an order – and overcome the prohibition
of SCR 60.05(6) – a circuit court judge would require authorizing
legislation. In this case, none exists.
It
may be argued that WI. Stat. § 802.12(2)(c) (1997) provides such
authority. This statute, like SCR
60.05, was enacted by supreme court rule.
It provides:
If
the parties cannot agree on a person to provide the settlement alternative, the
judge may appoint any person who the judge believes has the ability and
skills necessary to bring the parties together in settlement (emphasis added).
This
statute recites a general grant of authority permitting a judge to appoint any
person to serve as a third party neutral whereas SCR 60.05(6) is a specific
rule barring a judge from acting in that capacity. A fundamental rule of statutory construction holds that when
comparing a general statute and a specific statute, the specific statute takes
precedence. See Milwaukee v.
Kilgore, 193 Wis.2d 168, 185, 532 N.W.2d 690, 696 (1995).
A
leading commentator on judicial ethics has noted that “non-judicial
problem-solving obligations that are assigned to judges by statute are
not in conflict with the rule against arbitration.” JEFFREY M. SHAMAN, ET AL., JUDICIAL CONDUCT AND ETHICS §7.25
at 240 (2nd ed. 1995) (emphasis added).
As an example, the commentator cites a New York statute which authorizes
“three referees, each of whom shall be either a justice of the Supreme Court or
a retired justice of the Supreme Court¼” to resolve annexation disputes. Id. at n. 222. Because this language represented a
legislative extension of the judicial duties previously imposed upon judges,
the New York Supreme Court, Appellate Division, held that the statute did not
violate a state constitutional provision barring judges from serving as third
party neutrals. See Common Council
of Albany v. Town Bd., 272 N.Y.S.2d 307, 309 (N.Y.A.D. 1966), aff’d.
278 N.Y.S.2d 618 (1976). The New York
statute thus constitutes an express authorization, because it states
specifically who is to perform the obligation.
In
contrast, Wis. Stat. § 802.12(2)(c) (1997), is not an express grant
of authority to judges, but rather constitutes a general grant of
such authority to serve as a neutral to “any person” appointed by the
court. This statute does not state
directly or explicitly that "any person" includes judges. Nor does the Committee see a supreme court
intent to bring judges under the ambit of this statute, such that SCR 60.05(6)
is no longer applicable. Therefore, the
Committee concludes that Wis. Stat. § 802.12(2)(c), the more general statute,
does not overcome the specific prohibition set out in SCR 60.05(6).
If
the Committee were to conclude otherwise, then the express authority required
by SCR 60.05(6) is rendered meaningless by the mere stroke of the judicial
appointment pen under Wis. Stat. § 802.12(2)(c) (1997). The Committee doubts that the supreme court
intended an important rule governing judicial conduct to be abrogated under
such a general grant of authority.
Another rule of statutory construction states that when statutes are
seemingly in conflict, they should be harmonized, if it is possible, in a way
which will give force to each. See
Kilgore, 193 Wis.2d at 184, 532 N.W.2d at 695-96. The Committee’s interpretation abides by this principle: the
prohibition of SCR 60.05(6) remains intact as to judges while the authorization
granted by Wis. Stat. § 802.12(2)(c) (1997), remains intact as to all persons
except judges.
Based
on these principles of statutory construction, we conclude that Wis. Stat.
§802.12(2)(c) (1997) does not constitute the “express” authorization required
by SCR 60.05(6). We decline to
interpret the phrase “any person” in the statute to imply the inclusion
of full-time municipal judges.
CONCLUSION
The
Committee concludes that a full-time municipal judge may not act as a neutral
third person without pay, if appointed by a circuit court judge, because such
an appointment does not constitute the express authorization required by the
Code of Judicial Conduct SCR 60.05(6).
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. 99-1 issued by the Judicial
Conduct Advisory Committee for the State of Wisconsin, this 29th day of
January, 1999.
_________________________________
Thomas
H. Barland
Chair