Supreme
Court of Wisconsin
Judicial
Conduct Advisory Committee OPINION
97-5
Date
Issued: November 19, 1997
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ISSUE
May a judge act as an overseer for a
local union's election of officers?
ANSWER
No.
FACTS
A judge has been asked to take over
from a priest, who is now deceased, the task of overseeing the election of
officers for a local labor union. The
elections are held once every three years and would entail observing the
mailing of ballots to members, picking up the ballots at a local post office
box and observing the counting and tallying of the ballots.
The judge's present assignment is
juvenile court and his next rotation in two years will be felony court.
DISCUSSION
The Committee concludes that the
issue presented involves the provisions of SCR 60.03(1) & (2) and
60.05(1)(a) & (c).
A. SCR 60.03(1) & (2)
SCR 60.03 states in part:
A judge shall avoid
impropriety and the appearance of impropriety in all of the judge's activities.
(1) 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.
(2) ... A judge may not lend the prestige of the
judicial office to advance the private interests of the judge or of others...
B. SCR 60.05(1)(a) & (c)
SCR 60.05 states in part:
A judge shall so conduct
the judge's extra-judicial activities as to minimize the risk of conflict with
judicial obligations.
(1) 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.
(c) Interfere with the proper performance of
judicial duties.
The Committee concludes under SCR
60.03(1) and SCR 60.05(1)(a) that if the judge becomes involved in a local
labor union election as an overseer, who not only will observe the mailing,
counting and tallying of ballots, but will also physically pick up the ballots,
others who might have adversarial positions with respect to unions will,
rightly or wrongly, view the judge's involvement as indicating a pro-union
bias. A comment to SCR 60.03 states in
part:
... The test for
appearance of impropriety is whether the conduct would create in reasonable
minds a perception that the judge's ability to carry out judicial
responsibilities with integrity, impartiality and competence is impaired....
Unions involve themselves in
negotiations with management and local governments, strikes and political
activities, such as publicly endorsing or opposing issues and candidates for
public office, including judges. As
such, judges should distance themselves from any direct or indirect involvement
with labor union activities, such as elections. Involvement with a labor union election is inherently
inconsistent with a judge's obligation to maintain the appearance of
impartiality. Although the Committee
recognizes that a judge may participate in certain community activities (see
SCR 60.05(3)(c)), we conclude this type of activity is not one of those
enumerated exceptions.
Furthermore, the Committee finds
contrary to SCR 60.03(2) that this type of involvement would be using the
prestige of the judge's office to advance the private interest of others. It appears that one of the reasons the
judge is being asked to be an overseer is because of his position as a State
Circuit Court Judge. The union wants
its members to be assured the election is conducted properly and having a judge
oversee the election process would accomplish that goal. This would explain the use of a priest to
oversee previous elections. Priests and
judges may be perceived by the public as impartial arbitrators of disputes.
Therefore, the Committee concludes
under SCR 60.03(2) that the judge's participation would be the use of the
prestige of office to advance the interest of the union in assuring that the
election results would be beyond challenge or question.
The Committee also finds under SCR
60.05(1)(c) that the judge's involvement would likely interfere with the proper
performance of judicial duties.
Although the judge is presently in
the juvenile division and plans on rotating to the felony division in two
years, this does not eliminate problems which could arise now or in the
future. Children of union members could
appear in front of the judge which may call for his recusal. Members or relatives of a union member could
appear in front of the judge when he is in felony court which again could cause
recusal. Eventually when the judge
rotates into the civil division, the judge could have unions and their members
appearing on various types of lawsuits and hearings, which would again result
in recusals. This would, under Section
60.05(1)(c), interfere with the proper performance of the judge's judicial
duties since other judges in the county would have to handle cases from which
the judge would be forced to recuse himself or herself. Furthermore, if a dispute arises over the
conduct or results of the election, the judge would have to testify in court,
which would result in all fellow county judges recusing themselves due to the
judge's involvement, and requiring an out-of-county judge hear the case. A comment to SCR 60.05(3)(c)1 which applies
to government, civic or charitable activity, illustrates problems similar in
nature.
For example, in many
jurisdictions charitable hospitals are now more frequently in court than the
past. Similarly, the boards of some
legal aid organizations now make more policy decisions that may have political
significance or imply commitment to causes that may come before the court for
adjudication.
This
cautionary comment applies to charitable and non-profit legal organizations,
but would even be more applicable to a non-charitable non-legal organization,
such as a labor union.
CONCLUSION
The Committee concludes that the
proposed involvement by a Circuit Court Judge as an overseer for a local labor
union election violates SCR 60.03(1) and (2) and SCR 60.05(1)(a) and (c).
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. 97-5 issued by the Judicial Conduct Advisory Committee for the
State of Wisconsin this _____ day of _________________, 1997.
_________________________________
Thomas
H. Barland
Chair