Supreme Court of Wisconsin
Judicial Conduct Advisory Committee OPINION
98-7
Date Issued: May
8, 1998
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ISSUE
I
May a
judge, without the use of the judge's letterhead, solicit non-lawyer friends
and neighbors for contributions, ranging from $25 to $100, to a charity bicycle
ride?
ANSWER
No.
ISSUE
II
May a
judge solicit fellow judges, over whom the judge has no appellate or
supervisory capacity, for contributions to a charity bicycle ride?
ANSWER
Yes.
ISSUE
III
If the
judge rides in the charity bicycle ride, may the judge's identity (as a judge)
be used for any non-fundraising purpose?
ANSWER
No.
FACTS
A judge
wishes to participate in a 5-day 500-mile charity bicycle ride. In order to participate, each rider must
obtain at least $2,300 in pledges. The
proceeds of this charity ride are earmarked for charities in Wisconsin.
DISCUSSION
The
Committee concludes that the issues presented involve provisions of SCR
60.05(3)(c)2.a. & 2.d., 60.01(11), 60.01(4) and 60.03(2).
A. SCR 60.05
and 60.01
SCR
60.05(3)(c)2.a. states that:
2. A judge, in any capacity:
a. May assist . . . [a nonprofit
charitable] organization in planning fund-raising activities . . . but may not
personally participate in the solicitation of funds or other fund-raising
activities. . . .
SCR
60.05(3)(c)2.a. prohibits a judge from personally soliciting funds for
nonprofit organizations. The section
does not qualify the prohibition on the basis of "non-lawyer friends and
neighbors," or on the basis of the amount of money solicited by the judge. The prohibition appears to be absolute and
without regard to any group of persons whom the judge might solicit. Further, the Code does not allow for the
solicitation of any specified amount of money.
The
Committee notes that the Comment to SCR 60.05(3)2.d. states that the section
should not be read as proscribing a judge's participation in de minimis
fund-raising activities such as asking friends and neighbors (but not attorneys
or others likely to appear before the judge) to buy tickets to a pancake
breakfast for a local neighborhood center.
The Committee concludes that the solicitation of $25 to $100
contributions from nonlawyer friends and neighbors would not be a de minimis
fund-raising activity.
The
judge indicates that the solicitation of non-lawyer friends and neighbors would
take place without the use of the judge's letterhead. The Committee recognizes the judge's awareness that the use of
judicial letterhead for non-judicial or unofficial purposes would violate
provisions of the Code which prohibit the use of the prestige of office to
advance private interests. However, the
prohibition in SCR 60.05(3)(c)2.a. exists regardless of the mode or mechanism
of solicitation. The use of
non-judicial letterhead would not remove the proposed solicitation from the
prohibition of the Code.
The
Committee recognizes that a judge may wish to personally solicit funds for a
nonprofit organization from members of the judge's family. As recognized in Wis. Advisory Op. No. 97-7
(1997), which addressed issues of a judge's solicitation of campaign funds,
although a strict reading of SCR 60.05(3)(c)2.a. would prohibit a judge from
asking a spouse or close relative for a contribution to a nonprofit
organization, such a reading is contrary to public policy as expressed in the
statutes. The policy of the state set
forth in sec. 765.001(2), Wis. Stats., is " . . . to promote the stability
and best interests of marriage and the family." A strict reading also is contrary to the Preamble of the Code of
Judicial Conduct which states in part:
. . . The provisions of
the Code of Judicial Conduct are rules of reason. They should be applied consistent with constitutional
requirements, statutes, other court rules and decisional law and in the context
of all relevant circumstances. . . .
The ban
against personal solicitation by a judge exists for two reasons: (1) the party solicited will not feel
"obligated" or "strong-armed" into making a contribution;
and (2) if a contribution is made, the contributor will not appear to have
"earned" the judge's favor.
These dangers do not exist when a judge solicits a spouse or close
family member, because SCR 60.04(4)(d) and (e) require a judge to disqualify
himself or herself whenever certain family and household members are involved
in a case pending before the judge. SCR
60.02 and 60.03 implicitly require such recusal. SCR 60.01(11) defines "member of the judge's family"
as:
. . . the judge's
spouse, child, grandchild, parent, grandparent and any other relative or person
with whom the judge maintains a close familial relationship.
The Committee concludes that the prohibition against the
personal solicitation of funds for nonprofit organizations does not apply to
spouses or members of the judge's family.
B. SCR
60.05(3)(c)2.a.
SCR
60.05(3)(c)2.a. states:
. . . a judge may
solicit funds from other judges over whom the judge does not exercise
supervisory or appellate authority;
The
judge seeks to solicit fellow judges for contributions ranging from $25 to $100
for the charity ride. The judge has no
appellate or supervisory authority over the judges to be solicited. The Committee concludes that such
solicitation does not violate SCR 60.05(3)(c)2.a.
C. SCR
60.03(2) and 60.01(4)
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 or convey or permit others to convey the impression that
they are in a special position to influence the judge. . . .
SCR
60.01(4) states:
"De minimis"
means an insignificant interest that does not raise reasonable question as to a
judge's impartiality or use of the prestige of the office.
The
purpose of the charity bicycle ride is to raise funds for nonprofit
organizations. If the judge rides in
the event, may the judge's identity be used for any non-fundraising
purpose? The judge does not delineate
the purposes which may be non-fundraising.
In the context of what appears to be a major fundraising effort, it is
difficult to imagine what about that event may not be for the purpose of
raising funds.
SCR
60.03(2) prohibits a judge from allowing others to use the prestige of judicial
office to advance their private interests.
Any use of the judge's identity, as a judge, would be for the purpose of
using the prestige of the judicial office to advance the interests of the
charity ride. Therefore, the Committee
concludes there can be no use of the judge's identity in connection with the
ride.
A
further question is whether the judge may participate in the ride under any
circumstance. SCR 60.05(3)(c)2.a.
prohibits not only solicitation of funds by judges, but also states that a
judge . . . "may not personally participate in . . . other fundraising
activities." The question becomes
whether the judge's participation in a 5-day 500-mile charity bicycle ride
constitutes de minimis participation so as to not raise a
reasonable question as to the judge's impartiality or the use of the prestige
of the office. The comment to SCR
60.05(3)(c)2.d. states, in part:
SCR 60.05 should not be
read as proscribing participation in de minimis fund-raising
activities so long as a judge is careful to avoid using the prestige of the
office in the activity. Thus, e.g., a
judge may pass the collection basket during services at church, may ask friends
and neighbors to buy tickets to a pancake breakfast for a local neighborhood
center and may cook the pancakes at the event but may not personally ask
attorneys and others who are likely to appear before the judge to buy tickets
to it.
The
Committee concludes that riding anonymously in a charity bicycle ride
constitutes de minimis participation in a charitable fund-raising
activity, and is thus permitted.
CONCLUSION
The
Committee concludes that a judge may not solicit contributions for a charity
bicycle ride from non-lawyer friends and neighbors. The solicitation is prohibited whether or not the judge uses
judicial letterhead stationery. The
judge may solicit contributions for the charity bicycle ride from fellow judges
over whom the judge has no appellate or supervisory capacity. If the judge rides in the charity bicycle
ride, the judge's identity as a judge may not be used for any non-fundraising
purposes.
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. 98-7 issued by the Judicial
Conduct Advisory Committee for the State of Wisconsin this 8th day of May,
1998.
_________________________________
Thomas
H. Barland
Chair