Supreme
Court of Wisconsin
Judicial
Conduct Advisory Committee OPINION
98-9
Date
Issued: July 9, 1998
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ISSUE
May a full-time court commissioner
serve for hire as a neutral third person[1]?
ANSWER
No.
FACTS
A full-time court commissioner has
been providing services as a private mediator for compensation in civil
cases. The cases have been “referred”
to the court commissioner from circuit court judges.
DISCUSSION
The Committee concludes that the
issue presented involves provisions of SCR 60.01(8), SCR 60.05(6), and SCR
60.05(4).
A. SCR 60.01(8)
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" (emphasis added). The Code of Judicial Conduct expressly
includes full-time court commissioners as “judges.”
B. SCR 60.05(6)
SCR
60.05(6) states as follows:
Service
as Arbitrator or Mediator. A judge may
not act as an arbitrator or mediator or otherwise perform judicial functions in
a private capacity unless expressly authorized by law.
The requestor argues that Wis. Stat.
§802.12 constitutes an express authorization by law, thereby exempting the
court commissioner from the prohibition of SCR 60.05(6). Wis. Stat. §802.12(2)(c) states in part
that:
[T]he
judge may appoint any person who the judge believes has the ability and
skills necessary to bring the parties together in settlement. (emphasis added.)
Even if Wis. Stat. §802.12(2)(c)
were to constitute an express authorization within the meaning of SCR 60.05(6),
the requestor’s activity, acting as a neutral third person for pay, violates
two other provisions of the Code of Judicial Conduct, SCR 60.05(4)(a)1.a. and
b.
C. SCR 60.05(4)(a)1.a. and b.
SCR 60.05(4)(a)1.a. and b. states:
(4) Financial
Activities.
(a) 1. A judge may not engage in
financial or business dealings that could meet any of the following conditions:
a. Reasonably be perceived to
exploit the judge’s judicial position.
b. Involve the judge in
frequent transactions or continuing business relationships with those lawyers
or other persons likely to come before the court on which the judge serves.
The Committee concludes that a
full-time judicial court commissioner acting as a neutral third person for pay
violates both of these provisions. The
public may reasonably view the court commissioner to have an inside advantage
in receiving appointments for pay as a neutral third person under Wis. Stat.
§802.12(2)(c). This appearance
diminishes public confidence in the integrity of the judiciary. The public may also reasonably perceive the
court commissioner to be exploiting a judicial position for personal financial
gain. Finally, acting for pay as a
neutral third person will likely involve the court commissioner in frequent
transactions with lawyers who are likely to appear before the court
commissioner.
CONCLUSION
The Committee concludes that a
full-time court commissioner may not serve for hire as a neutral third person.
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. 98-9 issued by the Judicial Conduct Advisory Committee for the
State of Wisconsin, this 9th day of July, 1998.
_________________________________
Thomas
H. Barland
Chair