Supreme
Court of Wisconsin
Judicial
Conduct Advisory Committee OPINION
98-2
Date
Issued: February 19, 1998
═══════════════════════════════════
ISSUE
May a court commissioner conducting
initial appearances in criminal, small claims, civil traffic and forfeiture
cases also act as counsel in small claims and as a prosecutor in municipal
traffic and forfeiture cases that are processed through the same court.
ANSWER
Yes, as long as the court
commissioner does not conduct the initial appearance in any case in which he or
she is, or may become, counsel, and provided the court is careful to minimize
the chances of the public's viewing the court commissioner in the roles of both
prosecutor and magistrate.
FACTS
The requestor of this opinion is
currently a part-time Family Court Commissioner in a small county. The Circuit Court Judge for the county has
proposed expanding the court commissioner's duties to include conducting
initial appearances in criminal, small claims, civil traffic and forfeiture
cases. The court commissioner also is
in private practice and represents a municipality that does not have a
municipal court. The municipality
prosecutes civil traffic and forfeiture cases in the same circuit court. The court commissioner's private practice
also includes representing litigants in small claims matters in the same
circuit court.
The court commissioner will not
conduct any civil traffic or forfeiture initial appearances that involve the
municipality. The court commissioner
will also not conduct any small claim initial appearances if the commissioner
represents a litigant. It is proposed
that a Circuit Court Judge will continue to conduct the initial appearances in
these cases where a conflict exists.
DISCUSSION
The Committee concludes that the
issue presented involves the provisions of SCR 60.03(1), 60.04(1)(a) and
(4).
SCR
60.04(1)(a) states:
A
judge shall hear and decide matters assigned to the judge, except those in
which recusal is required under sub. (4) ....
Subsection (4) of this Rule sets
forth a general rule concerning recusal. It also lists a number of specific
rules requiring recusal. The general
rule is summarized in the commentary to the subsection.
...
a judge must recuse himself or herself whenever the facts and circumstances the
judge knows or reasonably should know raise reasonable question of the judge's
ability to act impartially, ....
The Committee believes that the
proposed expansion of the court commissioner's duties will not violate this
general rule concerning recusal. The
court commissioner will not hear, or have any involvement in processing, any of
the cases where he or she may be acting as counsel. To do otherwise would clearly raise a legitimate question
concerning the commissioner's ability to act impartially. It is essential that a Circuit Court Judge,
or other court commissioner, continue to preside over all cases where the court
commissioner is, or may be, counsel for one of the parties. This, of course, does not preclude the court
commissioner from conducting initial appearances in other cases where he or she
is not acting, or not likely to act, as counsel. The court commissioner's ability to act impartially in the cases
he or she hears is not reasonably questioned simply because he or she acts as
counsel in similar types of cases in the same circuit court.
Further, the Committee believes that
the proposed conduct will not violate any of the specific rules requiring
recusal as set forth in SCR 60.04 (4)(a) through (e).
The Committee also believes it is
important for the court commissioner to avoid the appearance of
partiality when conducting these initial appearances.
SCR 60.03(1) states:
A
judge shall ... act at all times in a manner that promotes the public
confidence in the integrity and impartiality of the judiciary.
The court must be careful to
schedule initial appearances to minimize the chances of the public's viewing
the court commissioner in the roles of both prosecutor and magistrate. Public confidence in the integrity and
impartiality of the judiciary could reasonably be questioned if the court
commissioner's dual roles were simultaneously presented to the public.
CONCLUSION
The Committee concludes that as long
as the court commissioner does not hear or participate in any manner in the
processing of the cases where he or she may be retained as counsel or act as a
prosecutor, the proposed expansion of the court commissioner's authority does
not violate the Code of Judicial Conduct, provided the court is careful to
minimize the chances of the public's viewing the court commissioner in the
roles of both prosecutor and magistrate.
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. 98-2 issued by the Judicial Conduct Advisory Committee for the
State of Wisconsin this 19th day of February, 1998.
_________________________________
Thomas
H. Barland
Chair