CODE OF JUDICIAL CONDUCT
JUDICIAL COUNCIL COMMITTEE'S NOTE, 1979:
The following rules, called the code of judicial ethics, govern the
members of the
PREAMBLE
Our legal system is based on the principle that an
independent, fair and competent judiciary will interpret and apply the laws
that govern us. The role of the
judiciary is central to American concepts of justice and the rule of law. Intrinsic to all provisions of this Code are
the precepts that judges, individually and collectively, must respect and honor
the judicial office as a public trust and strive to enhance and maintain
confidence in our legal system. The
judge is an arbiter of facts and law for the resolution of disputes and a
highly visible symbol of government under the rule of law.
The rules
of the Code of Judicial Conduct are authoritative. The Commentary, has three varying
functions: 1) to elaborate a standard in
the rules; 2) to set forth policy bases for the rules; or 3) by explanation and
example, to provide guidance with respect to the purpose and meaning of the
rules. The Commentary is not intended as
a statement of additional rules.
When the
text of a rule uses "shall," "shall not" or "may
not," it is intended to impose binding obligations the violation of which
can result in disciplinary action. For
a judge's conduct to constitute a violation of a rule, the judge must have
known or reasonably should have known the facts giving rise to the violation.
The use
of "should" or "should not" in the rules is intended to
encourage or discourage specific conduct and as a statement of what is or is
not appropriate conduct but not as a binding rule under which a judge may be
disciplined. When "may" is
used, it denotes permissible discretion or, depending on the context, it refers
to action that is not covered by specific proscriptions.
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 Code is to be construed so as not to impinge on the essential
independence of judges in making judicial decisions.
The Code
is designed to provide guidance to judges and candidates for judicial office
and to provide a structure for regulating conduct through disciplinary
agencies. It is not designed or intended
as a basis for civil liability or criminal prosecution. Furthermore, the purpose of the Code would be
subverted if the Code were invoked by lawyers or litigants for mere tactical
advantage in a proceeding.
The
provisions of the Code are intended to govern conduct of judges and to be
binding upon them. It is not intended,
however, that every transgression will result in disciplinary action. Whether disciplinary action is appropriate,
and the degree of discipline to be imposed, should be determined through a
reasonable and reasoned application of the text and should depend on such
factors as the seriousness of the transgression, whether there is a pattern of
improper activity and the effect of the improper activity on others or on the
judicial system. See
Because
it is not possible to address every conceivable conduct of a judge that might
erode public confidence in the integrity, independence and impartiality of the
judiciary, some of the binding rules of the Code are cast in general terms
setting forth the principles their specific provisions are intended to
foster. See, for example, SCR
60.02, 60.03(1) and 60.05(1) and accompanying Comments. Those rules provide a touchstone against
which judicial conduct, actual or contemplated, is to be measured. Care must be taken that the Code's
necessarily general rules do not constitute a trap for the unwary judge or a
weapon to be wielded unscrupulously against a judge.
The Code
of Judicial Conduct is not intended as an exhaustive guide for the conduct of
judges. They should also be governed in
their judicial and personal conduct by general ethical standards. The Code is intended, however, to state basic
standards which should govern the conduct of all judges and to provide guidance
to assist judges in establishing and maintaining high standards of judicial and
personal conduct.
SCR 60.01 Definitions.
In this
chapter:
(1) "Appropriate authority" means the
chief judge of an offending judge's district, the director of state courts, the
judicial commission, and the office of lawyer regulation.
(2) "Candidate" means a person seeking
selection for or retention of a judicial office by means of election or
appointment who makes a public announcement of candidacy, declares or files as
a candidate with the election or appointment authority, or authorizes
solicitation or acceptance of contributions or support.
(3) "Court personnel" means staff,
court officials and others subject to the judge's direction and control,
including judicial assistants, reporters, law clerks, and bailiffs. "Court personnel" does not include the
lawyers in a judicial proceeding.
(4) "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.
(5) "Economic interest" means ownership
of a more than de minimis legal or equitable interest, or a
relationship as officer, director, advisor or other active participant in the
affairs of a party, except that none of the following is an economic interest:
(a) Ownership of an interest in a mutual or
common investment fund that holds securities, unless the judge participates in
the management of the fund or unless a proceeding pending or impending before
the judge could substantially affect the value of the interest.
(b) Service by a judge as an officer, director,
advisor or other active participant in an educational, religious, charitable,
fraternal or civic organization, or service by a judge's spouse or child as an
officer, director, advisor or other active participant in any organization.
(c) A deposit in a financial institution, the
proprietary interest of a policyholder in a mutual insurance company, of a
depositor in a mutual savings association or of a member in a credit union, or
a similar proprietary interest, unless a proceeding pending or impending before
the judge could substantially affect the value of the interest.
(d) Ownership of government securities, unless a
proceeding pending or impending before the judge could substantially affect the
value of the securities.
(6) "Fiduciary" means a personal
representative, trustee, attorney-in-fact, conservator or guardian.
(7)
"Gift" means the payment or receipt of anything of value without valuable
consideration.
(7m) "Impartiality"
means the absence of bias or prejudice in favor of, or against, particular
parties, or classes of parties, as well as maintaining an open mind in
considering issues that may come before the judge.
(8)
"Judge" means 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.
(8m) "Judge-elect" means a person who has
been elected or appointed to judicial office but has not yet taken office.
(9) "Knowingly" or
"knowledge" means actual knowledge of the fact in question, which may
be inferred from the circumstances.
(10) "Law" means court rules, statutes,
constitutional provisions and legal conclusions in published court
decisions.
(11) "Member of the judge's family"
means the judge's spouse, child, grandchild, parent, grandparent and any other
relative or person with whom the judge maintains a close familial relationship.
(12) "Member of the judge's family residing in
the judge's household" means a relative of the judge by blood or marriage
or a person treated by the judge as a member of the judge's family who resides
in the judge's household.
(13) "Nonpublic information" means
information that, by law, is not available to the public, including information
that is sealed by statute or court order, impounded or communicated in camera,
offered in grand jury proceedings or contained in presentencing reports,
dependency case reports or psychiatric reports.
(14) "Part-time municipal judge" or
"part-time court commissioner" means a judge or court commissioner
who serves repeatedly on a part-time basis by election or under a continuing
appointment.
(15) "Require" means the exercise of
reasonable direction and control over the conduct of those persons subject to
the directions and control.
(16) "Third degree of kinship" means a
person who is related as a great-grandparent, grandparent, parent, uncle, aunt,
brother, sister, child, grandchild, great-grandchild, nephew or niece.
SCR
60.02 A judge shall uphold the integrity
and independence of the judiciary.
An
independent and honorable judiciary is indispensable to justice in our
society. A judge should participate in
establishing, maintaining and enforcing high standards of conduct and shall
personally observe those standards so that the integrity and independence of
the judiciary will be preserved. This
chapter applies to every aspect of judicial behavior except purely legal
decisions. Legal decisions made in the
course of judicial duty on the record are subject solely to judicial
review.
COMMENT
Deference to the
judgments and rulings of courts depends upon public confidence in the integrity
and independence of the judges. The
integrity and independence of judges depend in turn upon their acting without
fear or favor. Although judges should be
independent, they must comply with the law, including the provisions of this
chapter. Public confidence in the
impartiality of the judiciary is maintained by the adherence of each judge to
this responsibility. Conversely,
violation of this chapter diminishes public confidence in the judiciary and
thereby does injury to the system of government under law.
The role of the
judicial conduct organization like the Wisconsin Judicial Commission is not
that of an appellate court. Wis. Admin.
Code Sec. JC 3.06 (May 1979) states as follows:
"Commission not to act as appellate court. The
commission may not function as an appellate court to review the decisions of a
court or judge or to exercise superintending or administrative control over
determinations of courts or judges."
It is important to remember this concept as one interprets this chapter,
particularly in light of the practice of some groups or individuals to
encourage dissatisfied litigants to file simultaneous appeals and judicial
conduct complaints.
SCR
60.03 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.
COMMENT
Public confidence
in the judiciary is eroded by irresponsible or improper conduct of judges. A judge must avoid all impropriety and
appearance of impropriety. A judge must
expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on
the judge's conduct that might be viewed as burdensome by the ordinary citizen
and should do so freely and willingly.
The prohibition
against behaving with impropriety or the appearance of impropriety applies to
both the professional and personal conduct of a judge. Because it is not practicable to list all
prohibited acts, the proscription is necessarily cast in general terms that
extend to conduct by judges that is harmful although not specifically mentioned
in the chapter. Actual improprieties
under this standard include violations of law, court rules or other specific
provisions of this chapter. 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.
Restrictions on the
personal conduct of judges cannot, however, be so onerous as to deprive them of
fundamental freedoms enjoyed by other citizens.
Care must be taken to achieve a balance between the need to maintain the
integrity and dignity of the judiciary and the right of judges to conduct their
personal lives in accordance with the dictates of their individual
consciences.
In striking this
balance the following factors should be considered:
(a) the degree to which the personal conduct is
public or private;
(b) the degree to which the personal conduct is a
protected individual right;
(c) the potential for the personal conduct to
directly harm or offend others;
(d) the degree to which the personal conduct is
indicative of bias or prejudice on the part of the judge;
(e) the degree to which the personal conduct is
indicative of the judge's lack of respect for the public or the judicial/legal
system.
See also
Comment to sub. (3).
(2) A judge may not allow family, social,
political or other relationships to influence the judge's judicial conduct or
judgment. 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. A judge may not testify voluntarily as
a character witness.
COMMENT
Maintaining the
prestige of judicial office is essential to a system of government in which the
judiciary functions independently of the executive and legislative
branches. Respect for the judicial
office facilitates the orderly conduct of legitimate judicial functions. Judges should distinguish between proper and
improper use of the prestige of office in all of their activities. For example, it would be improper for a judge
to allude to his or her judgeship to gain a personal advantage such as deferential
treatment when stopped by a police officer for a traffic offense. Similarly, judicial letterhead must not be
used for conducting a judge's personal business.
A judge must avoid
lending the prestige of judicial office for the advancement of the private
interests of others. For example, a
judge must not use the judge's judicial position to gain advantage in a civil
suit involving a member of the judge's family.
As to the acceptance of awards, see SCR 60.05 (4) (e) 1.
Although a judge
should be sensitive to possible abuse of the prestige of office, a judge may,
based on the judge's personal knowledge, serve as a reference or provide a
letter of recommendation. Such a letter
should not be written if the person who is the subject of the letter is or is
likely to be a litigant engaged in a contested proceeding before the
court. However, a judge must not
initiate the communication of information to a sentencing judge or a probation
or corrections officer but may provide to such persons information for the
record in response to a formal request.
Judges may
participate in the process of judicial selection by cooperating with appointing
authorities and screening committees seeking names for consideration and by
responding to official inquiries concerning a person being considered for a
judgeship.
A judge must not
testify voluntarily as a character witness because to do so may lend the
prestige of the judicial office in support of the party for whom the judge
testifies. Moreover, when a judge
testifies as a witness, a lawyer who regularly appears before the judge may be
placed in the awkward position of cross-examining the judge. A judge may, however, testify when properly
summoned. Except in unusual circumstances
where the demands of justice require, a judge should discourage a party from
requiring the judge to testify as a character witness.
(3) A judge may not hold membership in any
organization that practices invidious discrimination on the basis of race,
gender, religion or national origin.
COMMENT
Membership of a
judge in an organization that practices invidious discrimination gives rise to
perceptions that the judge's impartiality is impaired. Whether an organization practices invidious
discrimination is often a complex question to which judges should be
sensitive. The answer cannot be
determined from a mere examination of an organization's current membership
rolls but rather depends on how the organization selects members and other
relevant factors, such as that the organization is dedicated to the
preservation of religious, ethnic or cultural values of legitimate common
interest to its members or that it is in fact and effect an intimate, purely
private organization whose membership limitations could not be constitutionally
prohibited.
Whether an
organization, club or group is "private" depends on a review of the
following factors: 1) size; 2) purpose;
3) policies; 4) selectivity in membership; 5) congeniality; and 6) whether
others are excluded from critical aspects of the relationship. An organization that is not "private"
is generally said to discriminate invidiously if it arbitrarily excludes from
membership on the basis of race, religion, sex or national origin persons who
would otherwise be admitted to membership.
See, New York State Club Ass'n Inc. v. City of
Public
manifestation by a judge of the judge's knowing approval of invidious
discrimination on any basis gives the appearance of impropriety and diminishes
public confidence in the integrity and impartiality of the judiciary.
When a judge has
reason to believe that an organization to which the judge belongs engages in
invidious discrimination that would preclude membership under sub. (3) or under
SCR 60.03, the judge may, in lieu of resigning, make immediate efforts to have
the organization discontinue its invidiously discriminatory practices but must
suspend participation in any other activities of the organization. If the organization fails to discontinue its
invidiously discriminatory practices as promptly as possible, the judge must
resign from the organization.
SCR 60.04 A judge shall perform the duties of judicial
office impartially and diligently.
The
judicial duties of a judge take precedence over all the judge's other
activities. The judge's judicial duties
include all the duties of the judge's office prescribed by law.
(1) In the performance of the duties under this
section, the following apply to adjudicative responsibilities:
(a) A judge shall hear and decide matters assigned
to the judge, except those in which recusal is required under sub. (4) or
disqualification is required under section 757.19 of the statutes and except
when judge substitution is requested and granted.
(b) A judge shall be faithful to the law and maintain
professional competence in it. A judge
may not be swayed by partisan interests, public clamor or fear of
criticism.
(c) A judge shall require order and decorum in
proceedings before the judge.
(d) A judge shall be patient, dignified and courteous
to litigants, jurors, witnesses, lawyers and others with whom the judge deals
in an official capacity and shall require similar conduct of lawyers, staff,
court officials and others subject to the judge's direction and control. During trials and hearings, a judge shall act
so that the judge's attitude, manner or tone toward counsel or witnesses does
not prevent the proper presentation of the cause or the ascertainment of the
truth. A judge may properly intervene if
the judge considers it necessary to clarify a point or expedite the
proceedings.
COMMENT
The duty to hear
all proceedings fairly and with patience is not inconsistent with the duty to
dispose promptly of the business of the court.
Judges can be efficient and businesslike while being patient and
deliberate.
In respect to sub.
(c), by order of June 4, 1996, the Supreme Court adopted Standards of Courtesy
and Decorum for the Courts of Wisconsin, chapter 62 of the Supreme Court
Rules.
(e) A judge shall perform judicial duties without
bias or prejudice. A judge may not, in
the performance of judicial duties, by words or conduct, manifest bias or
prejudice, including bias or prejudice based upon race, gender, religion,
national origin, disability, age, sexual orientation or socioeconomic status,
and may not knowingly permit staff, court officials and others subject to the
judge's direction and control to do so.
COMMENT
A judge must
refrain from speech, gestures or other conduct that could reasonably be
perceived as sexual harassment and must require the same standard of conduct of
others subject to the judge's direction and control.
A judge must
perform judicial duties impartially and fairly.
A judge who manifests bias on any basis in a proceeding impairs the
fairness of the proceeding and brings the judiciary into disrepute. Facial expression and body language, in
addition to oral communication, can give to parties or lawyers in the
proceedings, jurors, the media and others an appearance of judicial bias. A judge must be alert to avoid behavior that
may be perceived as prejudicial.
(f) A judge shall require lawyers in proceedings
before the judge to refrain from manifesting, by words or conduct, bias or
prejudice based upon race, gender, religion, national origin, disability, age,
sexual orientation or socioeconomic status against parties, witnesses, counsel
or others. This subsection does not
preclude legitimate advocacy when race, gender, religion, national origin,
disability, age, sexual orientation or socioeconomic status or other similar
factors are issues in the proceeding.
(g) A judge shall accord to every person who has
a legal interest in a proceeding, or to that person's lawyer, the right to be
heard according to law. A judge may not
initiate, permit, engage in or consider ex parte communications concerning a
pending or impending action or proceeding except that:
1. A judge may initiate, permit, engage in or
consider ex parte communications for scheduling, administrative purposes or
emergencies that do not deal with substantive matters or issues on the merits
if all of the following conditions are met:
a. The judge reasonably believes that no party
will gain a procedural or tactical advantage as a result of the ex parte
communication.
b. When the ex parte communication may affect
the substance of the action or
proceeding, the judge promptly notifies all of the other parties of the
substance of the ex parte communication and allows each party an opportunity to
respond.
2. A judge may obtain the advice of a
disinterested expert on the law applicable to a proceeding before the judge if
the judge gives notice to the parties of the person consulted and the substance
of the advice and affords the parties reasonable opportunity to respond.
3. A judge may consult with other judges or with
court personnel whose function is to aid the judge in carrying out the judge's
adjudicative responsibilities.
4. A judge may, with the consent of the parties,
confer separately with the parties and their lawyers in an effort to settle
matters pending before the judge.
5. A judge may initiate, permit, engage in or
consider ex parte communications when expressly authorized by law.
COMMENT
The proscription
against communications concerning a proceeding includes communications from
lawyers, law teachers, and other persons who are not participants in the
proceeding, except to the limited extent permitted.
To the extent
reasonably possible, all parties or their lawyers shall be included in communications
with a judge.
Whenever presence
of a party or notice to a party is required by SCR 60.04 (1) (g), it is the
party's lawyer, or if the party is unrepresented, the party, who is to be
present or to whom notice is to be given.
An appropriate and
often desirable procedure for a court to obtain the advice of a disinterested
expert on legal issues is to invite the expert to file a brief amicus curiae.
Certain ex parte
communication is approved by SCR 60.04 (1) (g) to facilitate scheduling and
other administrative purposes and to accommodate emergencies. In general, however, a judge must discourage
ex parte communication and allow it only if all the criteria stated in SCR
60.04 (1) (g) are clearly met. A judge
must disclose to all parties all ex parte communications described in SCR 60.04
(1) (g) 1 and 2 regarding a proceeding pending or impending before the
judge.
A judge must not
independently investigate facts in a case and must consider only the evidence
presented.
A judge may request
a party to submit proposed findings of fact and conclusions of law, so long as
the other parties are apprised of the request and are given an opportunity to
respond to the proposed findings and conclusions.
A judge should not
accept trial briefs that are not exchanged with adversary parties unless all
parties agree otherwise in advance of submission of the briefs.
A judge must make
reasonable efforts, including the provision of appropriate supervision, to
ensure that SCR 60.04 (1) (g) is not violated through law clerks or other
personnel on the judge's staff.
If communication
between the trial judge and the appellate court with respect to a proceeding is
permitted, a copy of any written communication or the substance of any oral
communication should be provided to all parties.
The prohibition of
a lawyer's ex parte communication with a judge and others is set forth in SCR
20:3.5.
(h) A judge shall dispose of all judicial matters
promptly, efficiently and fairly.
COMMENT
In disposing of
matters promptly, efficiently and fairly, a judge must demonstrate due regard
for the rights of the parties to be heard and to have issues resolved without
unnecessary cost or delay. Containing
costs while preserving fundamental rights of parties also protects the
interests of witnesses and the general public.
A judge should monitor and supervise cases so as to reduce or eliminate
dilatory practices, avoidable delays and unnecessary costs. A judge should encourage and seek to
facilitate settlement, but parties should not feel coerced into surrendering
the right to have their controversy resolved by the courts.
Prompt disposition
of the court's business requires a judge to devote adequate time to judicial
duties, to be punctual in attending court and expeditious in determining
matters under submission, and to insist that court officials, litigants and
their lawyers cooperate with the judge to that end.
(j) A judge may not, while a proceeding is
pending or impending in any court, make any public comment that may reasonably
be expected to affect the outcome or impair the fairness of the proceeding. The
judge shall require court personnel subject to the judge's direction and
control to similarly abstain from comment.
This subsection does not prohibit a judge from making public statements
in the course of his or her official duties or from explaining for public
information the procedures of the court.
This paragraph does not apply to proceedings in which the judge is a litigant
in a personal capacity.
COMMENT
The requirement
that judges abstain from public comment regarding a pending or impending
proceeding continues during any appellate process and until final
disposition. This paragraph does not
prohibit a judge from commenting on proceedings in which the judge is a
litigant in a personal capacity, but in cases such as a writ of mandamus
where the judge is a litigant in an official capacity, the judge must not
comment publicly.
(k) A judge may not commend or criticize jurors
for their verdict other than in a court order or opinion in a proceeding but
may express appreciation to jurors for their service to the judicial system and
the community.
COMMENT
Commending or
criticizing jurors for their verdict may imply a judicial expectation in future
cases and may impair a juror's ability to be fair and impartial in a subsequent
case.
(m) A judge may not disclose or use, for any
purpose unrelated to judicial duties, nonpublic information acquired in a
judicial capacity.
(o) A judge shall cooperate with other judges as
members of a common judicial system to promote the satisfactory administration
of justice.
(2) In the performance of the duties under this
section, the following apply to administrative responsibilities:
(a) A judge shall diligently discharge the
judge's administrative responsibilities without bias or prejudice and maintain
professional competence in judicial administration, and should cooperate with
other judges and court officials in the administration of court business.
(b) A judge shall require staff, court officials
and others subject to the judge's direction and control to observe the
standards of fidelity and diligence that apply to the judge and to refrain from
manifesting bias or prejudice in the performance of their official duties.
(c) A judge may not make unnecessary
appointments. A judge shall exercise the
power of appointment impartially and on the basis of merit. A judge shall avoid nepotism and
favoritism. A judge may not approve
compensation of appointees beyond the fair value of services rendered.
COMMENT
Appointees of a
judge include assigned counsel, officials such as referees, commissioners,
special masters, receivers and guardians, and personnel, such as clerks,
judicial assistants and bailiffs.
Consent by the parties to an appointment or an award of compensation
does not relieve the judge of the obligation prescribed by SCR 60.04 (2)
(c).
(3) In the performance of the duties under this
section the following apply to disciplinary responsibilities:
(a) A judge who receives information indicating a
substantial likelihood that another judge has committed a violation of this
chapter should take appropriate action.
A judge having personal knowledge that another judge has committed a
violation of this chapter that raises a substantial question as to the other
judge's fitness for office shall inform the appropriate authority.
(b) A judge who receives information indicating a
substantial likelihood that a lawyer has committed a violation of the rules of
professional conduct for attorneys should take appropriate action. A judge having personal knowledge that a
lawyer has committed a violation of the rules of professional conduct for
attorneys that raises a substantial question as to the lawyer's honesty,
trustworthiness or fitness as a lawyer in other respects shall inform the
appropriate authority. This paragraph
does not require a judge to report conduct disclosed through a judge's
participation in a group to assist ill or disabled judges or lawyers when such
information is acquired in the course of assisting an ill or disabled judge or
lawyer.
(c) Acts of a judge, in the discharge of
disciplinary responsibilities, required or permitted under par. (a) or (b) are
part of a judge's judicial duties and shall be absolutely privileged and no
civil action predicated on those acts may be instituted against the judge.
COMMENT
Appropriate action
may include direct communication with the judge or lawyer who has committed the
violation, other direct action if available, and reporting the violation to an
appropriate authority or other agency or body.
(4) Except as provided in sub. (6) for waiver, a
judge shall recuse himself or herself in a proceeding when the facts and
circumstances the judge knows or reasonably should know establish one of the
following or when reasonable, well-informed persons knowledgeable about
judicial ethics standards and the justice system and aware of the facts and
circumstances the judge knows or reasonably should know would reasonably
question the judge's ability to be impartial:
COMMENT
Under this rule, 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, regardless of whether any of the specific rules in
SCR 60.04 (4) applies. For example, if a
judge were in the process of negotiating for employment with a law firm, the
judge would be required to recuse himself or herself from any matters in which
that law firm appeared, unless the
recusal was waived by the parties after disclosure by the judge.
Section 757.19 of
the statutes sets forth the circumstances under which a judge is required by
law to disqualify himself or herself from any civil or criminal action or
proceeding and establishes the procedures for disqualification and waiver.
A judge should
disclose on the record information that the judge believes the parties or their
lawyers might consider relevant to the question of recusal, even if the judge
believes there is no real basis for recusal.
By decisional law,
the rule of necessity may override the rule of recusal. For example, a judge might be required to
participate in judicial review of a judicial salary statute or might be the
only judge available in a matter requiring immediate judicial action, such as a
hearing on probable cause or temporary restraining order. In the latter case, the judge must disclose
on the record the basis for possible recusal and use reasonable efforts to
transfer the matter to another judge as soon as practicable.
(a) The judge has a personal bias or prejudice
concerning a party or a party's lawyer or personal knowledge of disputed
evidentiary facts concerning the proceeding.
COMMENT
As a general
matter, for recusal to be required under this provision, the personal bias or
prejudice for or against a party or the personal knowledge of disputed facts
must come from an extrajudicial source.
A bias or prejudice requiring recusal most often arises from a prior
personal relationship but may arise from strong personal feelings about the
alleged conduct of a party. If a judge's
personal bias or prejudice concerning a party's lawyer is of such a degree as
to be likely to transfer to the party, the judge's recusal is required under
this provision.
(b) The judge of an appellate court previously
handled the action or proceeding as judge of another court.
(c) The judge served as a lawyer in the matter in
controversy, or a lawyer with whom the judge previously practiced law served
during such association as a lawyer concerning the matter, or the judge has
been a material witness concerning the matter.
COMMENT
A lawyer in a
government agency does not ordinarily have an association with other lawyers
employed by that agency within the meaning of SCR 60.04 (4) (c); a judge
formerly employed by a government agency, however, should recuse himself or
herself in a proceeding if the judge's impartiality reasonably may be
questioned because of such association.
(d) The judge knows that he or she, individually
or as a fiduciary, or the judge's spouse or minor child wherever residing, or
any other member of the judge's family residing in the judge's household has an
economic interest in the subject matter in controversy or in a party to the
proceeding or has any other more than de minimis interest that
could be substantially affected by the proceeding.
COMMENT
A financial
interest requiring recusal does not occur solely because the judge is a member
of a political or taxing body that is a party or is a ratepayer to a
party. The test then remains whether the
judge's interest as a taxpayer or ratepayer could be substantially affected by the
outcome.
(e) The judge or the judge's spouse, or a person
within the third degree of kinship to either of them, or the spouse of such a
person meets one of the following criteria:
1. Is a party to the proceeding or an officer,
director or trustee of a party.
2. Is acting as a lawyer in the
proceeding.
3. Is known by the judge to have a more than de
minimis interest that could be substantially affected by the
proceeding.
4.
Is to the
judge's knowledge likely to be a material witness
In the proceeding.
(f) The judge, while a judge or a candidate for
judicial office,
has made a public statement that commits, or appears to
commit, the judge with respect to any of the following:
1.
An issue in
the proceeding.
2.
The
controversy in the proceeding.
COMMENT
The fact that a
lawyer in a proceeding is affiliated with a law firm with which a relative of
the judge is affiliated does not of itself require the judge's recusal. Under appropriate circumstances, the fact
that the judge's impartiality may reasonably be questioned or that the relative
is known by the judge to have an interest in the law firm that could be
"substantially affected by the outcome of the proceeding" may require
the judge's recusal.
Recusal is not
required under this provision if the judge determines on the record that a
subpoena purporting to make his or her relative a witness is false, sham or
frivolous.
(5) A judge shall keep informed of the judge's
own personal and fiduciary economic interests and make a reasonable effort to
keep informed of the personal economic interests of the judge's spouse and
minor children residing in the judge's household, having due regard for the
confidentiality of the spouse's business.
(6) A judge required to recuse himself or herself
under sub. (4) may disclose on the record the basis of the judge's recusal and
may ask the parties and their lawyers to consider, out of the presence of the
judge, whether to waive recusal. If,
following disclosure of any basis for recusal other than personal bias or prejudice
concerning a party, the parties and lawyers, without participation by the
judge, all agree that the judge should not be required to recuse himself or
herself and the judge is then willing to participate, the judge may participate
in the proceeding. The agreement shall
be incorporated in the record of the proceeding.
COMMENT
A waiver procedure
provides the parties an opportunity to proceed without delay if they wish to
waive the recusal. To assure that
consideration of the question of waiver is made independently of the judge, a
judge must not solicit, seek or hear comments on a possible waiver of the
recusal unless the lawyers jointly propose a waiver after consultation as
provided in the rule. A party may act
through counsel if counsel represents on the record that the party has been
consulted and consents. As a practical
matter, a judge may wish to have all parties and their lawyers sign the waiver
agreement.
(7) Effect of Campaign Contributions. A judge shall not be required to recuse
himself or herself in a proceeding based solely on any endorsement or the
judge’s campaign committee’s receipt of a lawful campaign contribution, including
a campaign contribution from an individual or entity involved in the proceeding.
COMMENT
Wisconsin vigorously debated an
elective judiciary during the formation and adoption of the Wisconsin
Constitution in 1848. An elective judiciary was selected and has been part of
the Wisconsin democratic tradition for more than 160 years.
Campaign contributions to
judicial candidates are a fundamental component of judicial elections. Since
1974 the size of contributions has been limited by state statute. The limit on
individual contributions to candidates for the supreme court was reduced from
$10,000 to $1,000 in 2009 Wisconsin Act 89 after the 2009 supreme court
election. The legislation also reduced the limit on contributions to supreme
court candidates from political action committees, from
$8,625 to $1,000.
The purpose of this rule is to
make clear that the receipt of a lawful campaign contribution by a judicial candidate's
campaign committee does not, by itself, require the candidate to recuse himself
or herself as a judge from a proceeding involving a contributor. An endorsement
of the judge by a lawyer, other individual, or entity also does not, by itself,
require a judge's recusal from a proceeding involving the endorser. Not every
campaign contribution by a litigant or attorney creates a probability of bias
that requires a judge's recusal.
Campaign contributions must be
publicly reported. Disqualifying a judge from participating in a proceeding
solely because the judge's campaign committee received a lawful contribution
would create the impression that receipt of a contribution automatically
impairs the judge's integrity. It would have the effect of discouraging
"the broadest possible participation in financing campaigns by all
citizens of the state" through voluntary contributions, see Wis. Stat. §
11.001, because it would deprive citizens who lawfully contribute to judicial
campaigns, whether individually or through an organization, of access to the
judges they help elect.
Involuntary recusal of judges has
greater policy implications in the supreme court than in the circuit court and
court of appeals. Litigants have a broad right to substitution of a judge in
circuit court. When a judge withdraws
following the filing of a substitution request, a new judge will be
assigned. When a judge on the court of
appeals withdraws from a case, a new judge also is assigned. When a justice of
the supreme court withdraws from a case, however, the justice is not replaced.
Thus, the recusal of a supreme court justice alters the number of justices
reviewing a case as well as the composition of the court. These recusals affect
the interests of non-litigants as well as non-contributors, inasmuch as supreme
court decisions almost invariably have repercussions beyond the parties.
(8) Effect of
Independent Communications. A judge shall not be required to recuse himself or
herself in a proceeding where such recusal would be based solely on the
sponsorship of an independent expenditure or issue advocacy communication
(collectively, an "independent communication") by an individual or
entity involved in the proceeding or a donation to an organization that
sponsors an independent communication by an individual or entity involved in
the proceeding.
COMMENT
Independent expenditures and
issue advocacy communications are different from campaign contributions to a
judge's campaign committee.
Contributions are regulated by statute. They are often solicited by a
judge's campaign committee, and they must be accepted by the judge's campaign
committee. Contributions that are accepted may be returned. By contrast,
neither a judge nor the judge's campaign committee has any control of an
independent expenditure or issue advocacy communication because these
expenditures or communications must be completely independent of the judge's
campaign, as required by law, to retain their First Amendment protection.
A judge is not required to recuse
himself or herself from a proceeding solely because an individual or entity
involved in the proceeding has sponsored or donated to an independent
communication. Any other result would permit the sponsor of an independent
communication to dictate a judge's non-participation in a case, by sponsoring
an independent communication.
Automatically disqualifying a judge
because of an independent communication would disrupt the judge's official
duties and also have a chilling effect on protected speech.
SCR 60.05 A judge shall so conduct the judge's
extra-judicial activities as to minimize the risk of conflict with judicial
obligations.
(1) Extra-judicial Activities in General. 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.
(b) Demean the judicial office.
(c) Interfere with the proper performance of
judicial duties.
COMMENT
Complete separation
of a judge from extra-judicial activities is neither possible nor wise; a judge
should not become isolated from the community in which the judge lives.
Expressions of bias
or prejudice by a judge, even outside the judge's judicial activities, may cast
reasonable doubt on the judge's capacity to act impartially as a judge. See SCR 60.03 (1) and (3).
(2) Avocational Activities. A judge may speak, write, lecture, teach and
participate in other extra-judicial activities concerning the law, the legal
system, the administration of justice and nonlegal subjects, subject to the
requirements of this chapter.
COMMENT
As a judicial officer
and person specially learned in the law, a judge is in a unique position to
contribute to the improvement of the law, the legal system, and the
administration of justice, including revision of substantive and procedural law
and improvement of criminal and juvenile justice. To the extent that time permits, a judge is
encouraged to do so, either independently or through a bar association,
judicial conference or other organization dedicated to the improvement of the
law. Judges may participate in efforts
to promote the fair administration of justice, the independence of the
judiciary and the integrity of the legal profession and may express opposition
to the persecution of lawyers and judges in other countries because of their
professional activities.
In this and other
subsections of SCR 60.05, the phrase "subject to the requirements of this
chapter" is used, notably in connection with a judge's governmental, civic
or charitable activities. This phrase is
included to remind judges that the use of permissive language in various
provisions of the chapter does not relieve a judge from the other requirements
of the chapter that apply to the specific conduct.
(3) Governmental, Civic or Charitable
Activities.
(a) A judge may not appear at a public hearing
before, or otherwise consult with, an executive or legislative body or official
except on matters concerning the law, the legal system or the administration of
justice or except when acting pro se in a matter involving the
judge or the judge's interests.
COMMENT
See SCR
60.03 (2) regarding the obligation to avoid improper influence.
As provided in SCR
60.07(2), sub. (3)(a) does not apply to a judge serving on a part-time
basis.
(b) A judge may not accept appointment to a
governmental committee or commission or other governmental position that is
concerned with issues of fact or policy on matters other than the improvement
of the law, the legal system or the administration of justice. A judge may represent a country, state or
locality on ceremonial occasions or in connection with historical, educational
or cultural activities and may serve on a governmental or private committee,
commission or board concerned with historical, educational or cultural
activities. A judge may serve in any
branch of military reserves and be called to duty in the active military.
COMMENT
A judge is
prohibited from accepting any governmental position except one relating to the
law, legal system or administration of justice as authorized by par. (c). The appropriateness of accepting
extra-judicial assignments must be assessed in light of the demands on judicial
resources created by crowded dockets and the need to protect the courts from
involvement in extra-judicial matters that may prove to be controversial. Judges should not accept governmental
appointments that are likely to interfere with the effectiveness and
independence of the judiciary.
This provision does
not govern a judge's service in a non-governmental position. See par. (c) permitting service by a
judge with organizations devoted to the improvement of the law, the legal
system or the administration of justice and with educational, religious,
charitable, fraternal or civic organizations not conducted for profit. For example, service on the board of a public
educational institution, unless it were a law school, would be prohibited, but
service on the board of a public law school or any private educational
institution would generally be permitted under par. (c).
As provided in SCR
60.07(2), sub. (3)(b) does not apply to a judge serving on a part-time basis.
(c) A judge may serve as an officer, director,
trustee or nonlegal advisor of an organization or governmental agency devoted
to the improvement of the law, the legal system or the administration of
justice or of a nonprofit educational, religious, charitable, fraternal,
sororal or civic organization, subject to the following limitations and the
other requirements of this chapter:
COMMENT
This provision does
not apply to a judge's service in a governmental position unconnected with the
improvement of the law, the legal system or the administration of justice; see
par. (b).
See Comment
to SCR 60.05 (2) regarding use of the phrase "subject to the following
limitations and the other requirements of this chapter." As an example of the meaning of the phrase, a
judge permitted by this provision to serve on the board of a fraternal
institution may be prohibited from such service by SCR 60.03 (1) or (3) or
60.05 (1) if the institution practices invidious discrimination or if service
on the board otherwise casts reasonable doubt on the judge's capacity to act
impartially as a judge.
Service by a judge
on behalf of a civic or charitable organization may be governed by other
provisions of SCR 60.05 in addition to sub. (3). For example, a judge is prohibited by sub.
(7) from serving as a legal advisor to a civic or charitable organization.
1. A judge may not serve as an officer,
director, trustee or nonlegal advisor if it is likely that the organization
will do any of the following:
a. Engage in proceedings that would ordinarily
come before the judge.
b. Engage frequently in adversary proceedings in
the court of which the judge is a member or in any court subject to the
appellate jurisdiction of the court of which the judge is a member.
COMMENT
The changing nature
of some organizations and of their relationship to the law makes it necessary
for a judge to regularly re-examine the activities of each organization with
which the judge is affiliated to determine if it is proper for the judge to
continue the affiliation. For example,
in many jurisdictions charitable hospitals are now more frequently in court
than in the past. Similarly, the boards
of some legal aid organizations now make policy decisions that may have
political significance or imply commitment to causes that may come before the
courts for adjudication.
As provided in SCR
60.07(2), par. (c) 1.b. does not apply to a judge serving on a part-time basis.
2. A judge, in any capacity:
a. May assist the organization in planning fund-raising
activities and may participate in the management and investment of the
organization's funds but may not personally participate in the solicitation of
funds or other fund-raising activities, except that a judge may solicit funds
from other judges over whom the judge does not exercise supervisory or
appellate authority;
COMMENT
As provided in SCR
60.07(2), par. (c) 2.a. does not apply to a judge serving on a part-time basis.
b. May make recommendations to public and
private fund-granting organizations on projects and programs concerning the
law, the legal system or the administration of justice;
c. May not personally participate in membership
solicitation if the solicitation reasonably may be perceived as coercive or,
except as permitted in subd. 2.a, if the membership solicitation is essentially
a fund-raising mechanism; and
COMMENT
As provided in SCR
60.07(2), par. (c) 2.c. does not apply to a judge serving on a part-time basis.
d. May not use or permit the use of the prestige
of judicial office for fund raising or membership solicitation.
COMMENT
A judge may solicit
membership or endorse or encourage membership efforts for an organization
devoted to the improvement of the law, the legal system or the administration
of justice or a nonprofit educational, religious, charitable, fraternal or
civic organization as long as the solicitation cannot reasonably be perceived
as coercive and is not essentially a fund-raising mechanism. Solicitation of funds for an organization and
solicitation of memberships similarly involve the danger that the person
solicited will feel obligated to respond favorably to the solicitor if the
solicitor is in a position of influence or control. A judge must not engage in direct, individual
solicitation of funds or memberships in person, in writing or by telephone
except in the following cases: 1) a
judge may solicit for funds or memberships other judges over whom the judge
does not exercise supervisory or appellate authority, 2) a judge may solicit
other persons for membership in the organizations described above if neither
those persons nor persons with whom they are affiliated are likely ever to
appear before the court on which the judge serves, and 3) a judge who is an
officer of such an organization may send a general membership solicitation
mailing over the judge's signature.
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. Similarly, SCR
60.05 should not be read to prohibit judges from soliciting memberships for
religious purposes, but judges must nevertheless avoid using the prestige of
the office for the purpose of such solicitation.
Use of an
organization letterhead for fund raising or membership solicitation does not
violate subd. 2 provided the letterhead lists only the judge's name and office
or other position in the organization and, if comparable designations are
listed for other persons, the judge's judicial designation. In addition, a judge must make reasonable
efforts to ensure that the judge's staff, court officials and others subject to
the judge's direction and control do not solicit funds on the judge's behalf
for any purpose, charitable or otherwise.
A judge may be a
speaker or guest of honor at an organization's fund-raising event provided
there is no advertising of the judge as speaker or guest of honor in order to
encourage people to attend and make contributions and provided that any
contributions at the event are made prior to the judge's speech or presentation
as guest of honor. A judge's attendance
at such event is permissible if otherwise consistent with this chapter.
(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.
COMMENT
As provided in SCR
60.07(2), sub. (4)(a)1.b. does not apply to a judge serving on a part-time
basis.
2. A judge shall comply with sub. (4)(a)1 as
soon as reasonably possible and, in any event, within one year of the
applicability of this chapter to the judge.
COMMENT
When a judge
acquires in a judicial capacity information, such as material contained in
filings with the court, that is not yet generally known, the judge must not use
the information for private gain. See
SCR 60.03 (2) and 60.04 (1) (m).
A judge must avoid
financial and business dealings that involve the judge in frequent transactions
or continuing business relationships with persons likely to come either before
the judge personally or before other judges on the judge's court. In addition, a judge should discourage
members of the judge's family from engaging in dealings that would reasonably
appear to exploit the judge's judicial position. This rule is necessary to avoid creating an
appearance of exploitation of office or favoritism and to minimize the
potential for recusal or disqualification.
With respect to affiliation of relatives of a judge with law firms
appearing before the judge, see Comment to SCR 60.04 (4) relating to
recusal.
Participation by a
judge in financial and business dealings is subject to the general prohibitions
in SCR 60.05 (1) against activities that tend to reflect adversely on
impartiality, demean the judicial office, or interfere with the proper
performance of judicial duties. Such
participation is also subject to the general prohibition in SCR 60.03 against
activities involving impropriety or the appearance of impropriety and the
prohibition in SCR 60.03 (2) against the misuse of the prestige of judicial
office. In addition, a judge must
maintain high standards of conduct in all of the judge's activities, as set
forth in SCR 60.02. See Comment
to SCR 60.05 (2) regarding use of the phrase "subject to the requirements
of this chapter."
If engaged in a
financial or business activity at the time this chapter becomes applicable to
the judge, a judge may continue to do so for a reasonable period not to exceed
one year.
(b) A judge may,
subject to the requirements of this chapter, hold and manage investments of the
judge and members of the judge's family, including real estate, and engage in
other remunerative activity.
COMMENT
Subject to the
requirements of this chapter, a judge may hold and manage investments owned
solely by the judge, investments owned solely by a member or members of the
judge's family, and investments owned jointly by the judge and members of the
judge's family.
As provided in SCR
60.07(2), sub. (4)(b) does not apply to a judge serving on a part-time basis.
(c) 1.
Except as provided in par. 2, a judge may serve as an officer, director,
manager, general partner, advisor or employee of a business entity if that
service does not conflict with the judge's judicial duties, create the
appearance of impropriety, or otherwise violate any provision of this chapter.
2. A judge may not serve as an officer,
director, manager, general partner, advisor or employee of any business entity
affected with a public interest, including a financial institution, insurance
company, and public utility, and may not participate in or permit the judge's
name to be used in connection with any business venture or commercial
advertising that indicates the judge's title or affiliation with the judiciary
or otherwise lends the power or prestige of office to promote a business or
commercial venture.
COMMENT
A judge may
participate in a business not affected with a public interest if that
participation does not conflict with the judge's judicial duties, create the
appearance of impropriety, or violate any other provision of this Code. For example, a judge may be prohibited from
participation if the business entity frequently appears before a court in the
jurisdiction in which the judge serves or the participation requires
significant time away from judicial duties.
Similarly, a judge must avoid participation if the judge's participation
would involve misuse of the prestige of office.
As provided in SCR
60.07(2), sub. (4)(c) does not apply to a judge serving on a part-time basis.
(d) A judge shall manage the judge's investments
and other financial interests so as to minimize the number of cases in which
the judge's recusal or disqualification is required. As soon as the judge can do so without
serious financial detriment, the judge shall divest himself or herself of
investments and other financial interests that might require frequent
disqualification.
COMMENT
As provided in SCR
60.07(2), sub. (4)(d) does not apply to a judge serving on a part-time basis.
(e) A judge may not accept, and shall urge
members of the judge's family residing in the judge's household not to accept,
a gift, favor or loan from anyone except for the following:
COMMENT
Sub. (4) (e) does
not apply to contributions to a judge's campaign for judicial office.
Because a gift,
favor or loan to a member of the judge's family residing in the judge's
household might be viewed as intended to influence the judge, a judge must
inform those family members of the relevant ethical constraints upon the judge
in this regard and discourage those family members from violating them. A judge cannot, however, reasonably be
expected to know or control all of the financial or business activities of all
family members residing in the judge's household.
As provided in SCR
60.07(2), sub. (4)(e) does not apply to a judge serving on a part-time basis.
1. A gift incident to a public testimonial,
books, tapes and other resource materials supplied by publishers on a
complimentary basis for official use, or an invitation to the judge and the
judge's spouse or guest to attend a bar-related function or an activity devoted
to the improvement of the law, the legal system or the administration of
justice.
COMMENT
Acceptance of an
invitation to a law-related function is governed by sub. (4) (e) 1; acceptance
of an invitation paid for by an individual lawyer or group of lawyers is
governed by sub. (4) (e) 10.
A judge may accept
a public testimonial or a gift incident thereto only if the donor organization
is not an organization whose members comprise or frequently represent the same
side in litigation, and the testimonial and gift are otherwise in compliance with
other provisions of this chapter. See
SCR 60.05 (1) (a) and 60.03 (2).
2. A gift, award or benefit incident to the
business, profession or other separate activity of a spouse or other family
member of a judge residing in the judge's household, including gifts, awards
and benefits for the use of both the spouse or other family member and the
judge, provided the gift, award or benefit could not reasonably be perceived as
intended to influence the judge in the performance of judicial duties.
3. Ordinary social hospitality.
4. A gift from a relative.
5. A gift from a friend for a special occasion,
such as a wedding, anniversary or birthday, if the gift is fairly commensurate
with the occasion and the relationship.
COMMENT
A gift to a judge,
or to a member of the judge's family living in the judge's household, that is
excessive in value raises questions about the judge's impartiality and the
integrity of the judicial office and might require recusal or disqualification
of the judge where recusal or disqualification would not otherwise be
required. See, however, par. (e)
5.
6. Anything of value if the activity or occasion
for which it is given is unrelated to the judge's use of the state's time,
facilities, services or supplies not generally available to all citizens of
this state and the judge can show by clear and convincing evidence that it was
unrelated to and did not arise from the judge's holding or having held a public
office.
7. A gift, favor or loan from a relative or
close personal friend whose appearance or interest in a case would in any event
require recusal under SCR 60.04(4).
8. A loan from a lending institution in its
regular course of business on the same terms generally available to persons who
are not judges.
9. A scholarship or fellowship awarded on the
same terms and based on the same criteria applied to other applicants.
10. Any other gift, favor or loan, only if the
donor is not a party or other person who has come or is likely to come or whose
interests have come or are likely to come before the judge.
COMMENT
Unless authorized
by other provisions of sub. (4) (e), sub. (4)(e) 10 prohibits judges from
accepting gifts, favors or loans from lawyers or their firms if they have come
or are likely to come before the judge; it also prohibits gifts, favors or
loans from clients of lawyers or their firms when the clients' interests have
come or are likely to come before the judge.
See sec. 19.43 et seq., Stats.
(5) Fiduciary Activities.
(a) A judge may not serve as executor,
administrator or other personal representative, trustee, guardian,
attorney-in-fact or other fiduciary, except for the estate, trust or person of
a member of the judge's family, and then only if such service will not
interfere with the proper performance of his or her judicial duties.
(b) A judge may not serve as a fiduciary if it is
likely that the judge as a fiduciary will be engaged in proceedings that would
ordinarily come before the judge or if the estate, trust or ward becomes
involved in adversary proceedings in the court on which the judge serves or one
under its appellate jurisdiction.
(c) The same restrictions on financial activities
that apply to a judge personally also apply to the judge while acting in a
fiduciary capacity.
(d) A judge shall comply with pars. (a) and (b)
as soon as reasonably possible and, in any event, within one year of the
applicability of this chapter to the judge.
COMMENT
A judge who is a
fiduciary at the time this chapter becomes effective for the estate or person
of one who is not a member of the judge's family may continue to act as such if
the demands on his or her time and the possibility of a conflict of interest
are not substantial and for the period of time necessary to avoid serious
adverse consequences to the beneficiary of the fiduciary relationship but in no
event longer than one year.
The restrictions
imposed by SCR 60.05 may conflict with the judge's obligation as a fiduciary. For example, a judge should resign as trustee
if detriment to the trust would result from divestiture of holdings the
retention of which would place the judge in violation of sub. (4) (d).
As provided in SCR
60.07(2), sub. (5) does not apply to a judge serving on a part-time basis.
(6) 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.
COMMENT
Paragraph (6) does
not prohibit a judge from participating in arbitration, mediation or settlement
conference performed as part of judicial duties.
As provided in SCR
60.07(2), sub. (6) does not apply to a judge serving on a part-time basis.
(7) Practice of Law. A judge may not practice law. Notwithstanding this prohibition, a judge may
act pro se and may, without compensation, give legal advice to
and draft or review documents for a member of the judge's family and represent
without compensation the estate of a person with whom the judge maintains a
close familial relationship so long as the estate remains uncontested.
COMMENT
This prohibition
refers to the practice of law in a representative capacity and not in a pro
se capacity. A judge may act for
himself or herself in all legal matters, including matters involving litigation
and matters involving appearances before or other dealings with legislative and
other governmental bodies. However, in
so doing, a judge must not abuse the prestige of office to advance the
interests of the judge or judge's family.
See SCR 60.03 (2).
The chapter allows
a judge to give legal advice to and draft legal documents for members of the
judge's family, so long as the judge receives no compensation. A judge must not, however, act as an advocate
for a member of the judge's family in a legal matter.
The restraint
against a judge giving advice to parties in matters before the judge does not
prohibit a judge from advising such parties to obtain lawyers or medical
treatment and from advising such parties on similar matters unrelated to the
merits of the matter before the judge.
As provided in SCR
60.07(2), sub. (7) does not apply to a judge serving on a part-time basis.
(8) Compensation, Reimbursement and
Reporting.
(a) Compensation and Reimbursement. A judge may receive compensation and
reimbursement of expenses for the extra-judicial activities permitted by this
chapter if the source of such payments does not give the appearance of
influencing the judge's performance of judicial duties or otherwise give the
appearance of impropriety.
1. Compensation may not exceed a reasonable
amount nor may the compensation exceed what a person who is not a judge would
receive for the same activity.
2. Expense reimbursement shall be limited to the
actual cost of travel, food and lodging reasonably incurred by the judge and,
where appropriate to the occasion, by the judge's spouse or guest. Any payment in excess of that amount is
compensation.
(b) Financial reports. Except as provided in SCR 60.07, a judge
shall file with the ethics board a timely financial report as required by
section 19.43 of the statutes. The
report shall also be filed by commissioners of the supreme court, staff
attorneys of the court of appeals, and the director of state courts.
COMMENT
The chapter does
not prohibit a judge from accepting honoraria or speaking fees provided that
the compensation is reasonable and commensurate with the task performed. A judge should ensure, however, that no
conflicts are created by the arrangement.
A judge must not appear to trade on the judicial position for personal
advantage. Nor should a judge spend
significant time away from court duties to meet speaking or writing commitments
for compensation. In addition, the
source of the payment must not raise any question of undue influence or the
judge's ability or willingness to be impartial.
See SCR
60.05 (4) (e) and sec. 19.56, Stats., regarding reporting of gifts and
loans.
As provided in SCR
60.07(2), sub. (8) does not apply to a judge serving on a part-time basis. Sub.
(8) does not apply to a supplemental court commissioner authorized under SCR
75.02(3) who has performed fewer than 40 hours of circuit court commissioner
duties in the preceding calendar year.
SCR 60.06 A judge or judicial candidate shall refrain
from inappropriate political activity.
(1g) Terminology.
In this section, “judge” has the meaning given in SCR 60.01(8), except
that in subs. (1m), (2), and (4), “judge” does not include a court commissioner
or a municipal judge who did not devote 40 or more hours to the performance of
his or her official duties in the preceding calendar year.
(1m) Candidate for Office. A judge shall not become a candidate for
a federal, state, or local nonjudicial elective office without first resigning
his or her judgeship. A judge’s
eligibility to serve may be governed by other rules or constitutional
provisions.
COMMENT
Article VII,
section 10 (1) of the Wisconsin Constitution provides, “No justice of the
supreme court or judge of any court of record shall hold any other office of
public trust, except a judicial office, during the term for which
elected.” See Wagner v.
(2)
Party membership and activities.
(a)
Individuals
who seek election or appointment to the
judiciary
may have aligned themselves with a particular political party and may have
engaged in partisan political activities.
Wisconsin adheres to the concept of a nonpartisian judiciary. A candidate for judicial office shall not
appeal to partisanship and shall avoid partisan activity in the spirit of a
nonpartisan judiciary.
(a) No judge or candidate for judicial office
or judge-elect may do any of the following:
1. Be
a member of any political party.
2. Participate
in the affairs, caucuses, promotions, platforms, endorsements, conventions, or
activities of a political party or of a candidate for partisan office.
3. Make
or solicit financial or other contributions in support of a political party's
causes or candidates.
4. Publicly
endorse or speak on behalf of its candidates or platforms.
(c) A partisan political office holder
who is seeking election or appointment to judicial office or who is a
judge-elect may continue to engage in partisan political activities required by
his or her present position.
(d) 1. Paragraph (b) does not
prohibit a judge, candidate for judicial office or judge-elect from attending,
as a member of the public, a public event sponsored by a political party or
candidate for partisan office, or by the campaign committee for such a
candidate.
2. If attendance at an event
described in subd. 1. requires the purchase of a ticket or otherwise requires
the payment of money, the amount paid by the judge, candidate for judicial
office, or judge-elect shall not exceed an amount necessary to defray the
sponsor's cost of the event reasonably allocable to the judge's, candidate's,
or judge-elect's attendance.
(e) Nothing
in this subsection shall be deemed to prohibit a judge, judge-elect, or
candidate for judicial office, whether standing for election or seeking an
appointment, from appearing at partisan political gatherings to promote his or
her own candidacy.
COMMENT
The rule prohibits
political party membership and activities by judges, nonincumbent candidates
for judicial office, and judges-elect. When one becomes a candidate for
judicial office is determined by the terms of SCR 60.01 (2) which defines
"candidate" as "a person seeking selection for or retention of a
judicial office by means of election or appointment who makes a public
announcement of candidacy, declares or files as a candidate with the election
or appointment authority, or authorizes solicitation or acceptance of
contributions." The rule prohibits judicial candidates and judges-elect as
well as judges from making or soliciting contributions to the party or its
candidates and from publicly endorsing or speaking on behalf of partisan
candidates or platforms. Although the rule contemplates the continuance of
nonpartisanship on the part of Wisconsin judges and those seeking judicial
office, judges are not expected to lead lives of seclusion. As members of the
public and as public officeholders, judges may attend public events, even those
sponsored by political parties or candidates, so long as the attendance does
not constitute the kind of partisan activity prohibited by this rule. The
judge, judicial candidate or judge-elect is responsible for so conducting
herself or himself that her or his presence at the sponsored event is not made
to appear as an endorsement or other prohibited political activity. The judge,
judicial candidate, or judge-elect should also exercise care that the price of
his or her ticket to any such event does not include a prohibited political
contribution.
(3) Campaign Conduct and Rhetoric.
(a) In
General. While holding the office of judge or while a candidate for
judicial office or a judge-elect, every judge, candidate for judicial office,
or judge-elect should maintain, in campaign conduct, the dignity appropriate to
judicial office and the integrity and independence of the judiciary. A judge,
candidate for judicial office, or judge-elect should not manifest bias or
prejudice inappropriate to the judicial office. Every judge, candidate for
judicial office, or judge-elect should always bear in mind the need for
scrupulous adherence to the rules of fair play while engaged in a campaign for
judicial office.
COMMENT
This subsection
is new. It states a rule generally applicable to judges, candidates for
judicial office, and judges-elect
(b) Promises and commitments. A judge,
judge-elect, or candidate for judicial office shall not make or permit or authorize
others to make on his or her behalf, with respect to cases, controversies, or
issues that are likely to come before the court, pledges, promises, or
commitments that are inconsistent with the impartial performance of the
adjudicative duties of the office.
This section
prohibits a candidate for judicial office from making statements that commit
the candidate regarding cases, controversies or issues likely to come before
the court. A judge or candidate for judicial office may not, while a proceeding
is pending or impending in the court to which selection is sought, make any
public comment that may reasonably be viewed as committing the judge,
judge-elect or candidate to a particular case outcome. As a corollary, a
candidate should emphasize in any public statement the candidate's duty to
uphold the law regardless of his or her personal views. This section does not
prohibit a candidate from making pledges or promises respecting improvements in
court administration. Nor does this section prohibit an incumbent judge from
making private statements to other judges or court personnel in the performance
of judicial duties. This section applies to any statement made in the process
of securing judicial office, such as statements to commissions charged with
judicial selection.
(c) Misrepresentations. A
candidate for a judicial office shall not knowingly or with reckless disregard
for the statement's truth or falsity misrepresent the identity, qualifications,
present position, or other fact concerning the candidate or an opponent. A
candidate for judicial office should not knowingly make representations that,
although true, are misleading, or knowingly make statements that are likely to
confuse the public with respect to the proper role of judges and lawyers in the
American adversary system.
COMMENT
This subsection is
new. The first sentence is based on the August 2003 amendments to the
The second
sentence is aspirational. Thus, "should" is used rather than
"shall." The remaining standards are mandatory and prohibit
candidates from knowingly or with reckless disregard for the truth making
various specific types of misrepresentations. Candidates are not responsible
for misrepresentations or misleading statements made by third parties not
subject to the control of the candidate, e.g., through independent expenditures
by interest groups.
(4) Solicitation and
Acceptance of Campaign Contributions. A judge, candidate for
judicial office, or judge-elect shall not personally solicit or accept campaign
contributions. A candidate may, however, establish a committee to solicit and
accept lawful campaign contributions. The committee is not prohibited from
soliciting and accepting lawful campaign contributions from lawyers, other
individuals or entities even though the contributor may be involved in a
proceeding in which the judge, candidate for judicial office, or judge-elect is
likely to participate. A judge or candidate for judicial office or judge-elect
may serve on the committee but should avoid direct involvement with the
committee's fundraising efforts. A judge or candidate for judicial office or
judge-elect may appear at his or her own fundraising events. When the committee
solicits or accepts a contribution, a judge, candidate for judicial office, or
judge-elect should also be mindful of the requirements of SCR 60.03 and
60.04(4); provided, however, that the receipt of a lawful campaign contribution
shall not, by itself, warrant judicial recusal.
Under longstanding Wisconsin law,
a judicial candidate may not personally solicit or accept campaign
contributions. However, a judicial candidate may form and rely upon a campaign
committee to solicit and accept contributions for the judicial campaign. Lawyers, other individuals, and entities are
not excluded from this process merely because committee members or contributors
may be involved in proceedings in which the judge is likely to participate.
The solicitation of contributions
from participants in judicial proceedings is always a matter requiring close,
careful attention. Campaign committees should be sensitive to the existence of
pending litigation, the proximity of judicial elections, and the wording of
campaign solicitations to avoid the appearance of promise or pressure.
A judge should
avoid having his or her name listed on another's fundraising solicitation even
when the listing is accompanied with a disclaimer that the name is not listed
for fundraising purposes.
Acknowledgement
by a judge or candidate for judicial office of a contribution in a courtesy
thank you letter is not prohibited.
(5)
Solicitation and Acceptance of Endorsements. A judge or
candidate for judicial office may solicit or accept endorsements supporting his
or her election or appointment personally or through his or her committee. A
judge, candidate for judicial office, or his or her committee is not prohibited
from soliciting and accepting endorsements from lawyers and others. A judge or
candidate for judicial office shall not knowingly personally solicit or accept
endorsements from parties who have a case pending before the court to which
election or appointment is sought. Nevertheless, a judge or judicial candidate
may personally solicit or accept endorsements from the types of organizations
that ordinarily make recommendations for selection to the office. In soliciting
or accepting an endorsement, a judge or candidate for judicial office should be
mindful of the requirements of SCR 60.03 and 60.04 (4).
This subsection
is new. In light of the restrictions on campaign rhetoric under SCR
60.06 (3), the receiving of endorsements is an important method of
informing the electorate of broad-based and presumably informed support for a
particular candidacy. Knowing solicitation and acceptance of endorsements from
current litigants are prohibited. Candidates for judicial office may solicit
and accept endorsements from entities that regularly endorse candidates, such
as newspapers and trade organizations. Neither culling nor cross-checking of
names on mailing lists or dockets is required.
60.07 Applicability.
(1) General. Subject to sub. (2), all judges shall
comply with this chapter. Candidates for judicial office and judges-elect shall
comply with SCR 60.06.
(2) Part-time Judicial Service. A judge who
serves on a part-time basis, including a reserve judge, a part-time municipal
judge or a part-time court commissioner, is not required to comply with the
following: SCR 60.05 (3) (a), (b) and (c) 1b., 2.a, and c.,
(4) (a) 1.b., (b) (c), (d) and (e), (5), (6), (7) and (8). All circuit court commissioners appointed under SCR 75.02 (1) and those
supplemental court commissioners authorized under SCR 75.02 (3) who have
performed 40 hours or more of circuit court commissioner duties during the
preceding calendar year shall comply with SCR 60.05 (8).
Candidates for judicial office and
judges-elect are subject to the requirements of SCR 60.06.
Amended January 16,
1985; April 29, 1985; May 11, 1994; November 17, 1994; July 1, 1996; December
20, 1996; April 6, 2001; November 14, 2001, October 29, 2004, January 1, 2007;
July 7, 2010.
SCR CHAPTER
60
CODE OF JUDICIAL CONDUCT
APPENDIX
A.
Rules of the Judicial Conduct Advisory Committee
(1) Membership. A judicial conduct advisory committee
consisting of nine members appointed by the supreme court is created. Six members of the committee shall be
selected from the judiciary of this state, one member shall be selected from
the court commissioners serving the circuit court, one member shall be selected
from attorneys licensed to practice law in this state, and one member shall be
selected from the public. One judge
member shall be a chief judge of a judicial administrative district, one judge
member shall be a judge of the court of appeals, one judge member shall be a circuit
judge or a reserve judge who serves regularly on an urban area court, one judge
member shall be a circuit judge or a reserve judge who serves regularly on a
rural area court, one judge member shall be a municipal judge, and one judge
member shall be a reserve judge. Members
shall serve for a term of three years and shall continue to serve until a
successor is appointed, except that, to achieve staggered terms, three of the
members first appointed, shall serve for one year, three members for two years,
and three members for three years. A
member may serve not more than two successive three-year terms. Appointments to fill a vacancy shall be for
the balance of the term vacated. Members
of the committee shall serve without compensation but shall be reimbursed for
expenses actually and necessarily incurred in the performance of their duties.
(2) Duties. The committee shall do the following:
(a) Render formal advisory opinions and give
informal advice concerning the compliance of contemplated or proposed future
conduct with the code of judicial conduct, provided that an opinion or advice
shall not be rendered on a matter known to be the subject of a past or pending
litigation, disciplinary proceeding, or investigation.
(b) Make recommendations to the supreme court for
amendment to the code of judicial conduct or the rules governing the committee.
(c) Each year submit to the supreme court a
report of its activities.
(3) Administration. The committee shall be administered under the
direction of a chair appointed by the supreme court. The chair shall serve for a term of one year
and may serve not more than two successive terms. Staff of the director of state courts office
shall be available to answer inquiries concerning committee procedures, to receive
and process request for a formal advisory opinion, to maintain committee
records, and to provide other staff assistance as appropriate.
(4) Requests
for opinion or advice. Formal
advisory opinions and informal advice may be requested by a judge or a
candidate for judicial office about his or her own contemplated or proposed
future conduct. A request for a formal
advisory opinion shall be submitted in writing and include a detailed statement
of all relevant facts and circumstances, a discussion of the issues presented
in the request, and references to the relevant provisions of the code of
judicial conduct, advisory opinions, case law, and other authority the
requestor has consulted in the matter. A
request for informal advice may be made orally or in writing to any member of
the committee. The identity,
organizational affiliation, and geographic location of a person requesting a
formal advisory opinion or informal advice shall be confidential.
(5) Consideration
of requests. The committee shall determine
whether a request for a formal advisory opinion should be resolved with a
written, published opinion or by letter or other communication. A formal advisory opinion shall be decided by
a majority vote of the committee. The
committee may confer in person, by correspondence or by telephone or other
electronic means as needed to conduct committee business and consider requests
for formal advisory opinions. The
committee shall maintain records of its determinations and formal advisory
opinions.
(6) Formal
advisory opinion. Formal advisory
opinions shall be edited to omit the names of persons, courts, places and any
other information that may tend to identify the requestor or any other
person. Before issuing a formal advisory
opinion, the committee shall provide a copy of the opinion to the requestor,
and the requestor may ask the committee to omit from its specified information
that may tend to identify the requestor or any other person. In the event necessary editing produces an
opinion that the committee determines is not meaningful, the committee may
determine that a formal advisory opinion not be published and distribute it
only to the requestor.
(7) Opinion
distribution. Except as provided in
sub. (6), a formal advisory opinion shall be distributed to the requestor, the
justices and clerk of the supreme court, the chief judge of the court of
appeals, the chief judges of the judicial administrative districts in this
state, the director of state courts, the state law library, and the state bar of
Wisconsin. Formal advisory opinions
shall be accumulated and distributed to all judges at least annually by the
office of the director of state courts.
(8) Reconsideration. Within 30 days after the distribution of a
formal advisory opinion to all judges, a person authorized to request an
opinion may ask the committee to reconsider the formal advisory opinion by
submitting a written request for reconsideration explaining the basis for the
request. The committee shall respond to
the request by reaffirming or revising the formal advisory opinion or by
denying the request. The committee may,
on its own motion, reconsider a formal advisory opinion at any time. A revised formal advisory opinion shall be
distributed as provided in sub. (7).
(9) Effect
of opinion or advice. (a) A formal advisory opinion shall not be
binding upon the
(b) Reliance of a judge or candidate for
judicial office on informal advice given by the committee or by any of its
members may not constitute evidence of a good faith effort to comply with the
code of judicial conduct.
(10) Confidentiality. With the exception of published formal
advisory opinions, all opinions, inquiries, replies, circulated drafts,
records, documents, files, communications with staff, and proceedings of the
committee shall be confidential.
Confidentiality does not apply if the person requesting the formal
advisory opinion or informal advice expressly waives confidentiality in writing
or relies on the opinion or advice in a judicial disciplinary proceeding. Notwithstanding any waiver, committee
deliberations shall be confidential.
(11) Immunity. Members of the committee shall be immune
from liability for any conduct relating directly or indirectly to their duties
for the committee. When acting in their
advisory capacity, the judge members of the committee shall be exempt from the
provisions regarding disciplinary responsibilities in the code of judicial
conduct and the attorney members of the committee shall be exempt from the provisions
regarding reporting misconduct in the rules of professional conduct for
attorneys.
B.
Procedures of the Judicial Conduct Advisory Committee
(1) Request for formal advisory opinions. A request for a formal advisory opinion shall
be in writing and shall be addressed to the chair of the committee. The requestor shall also send a copy of the
request to the director of state courts.
The request shall include a detailed statement of all relevant facts and
circumstances, a discussion of the issues presented in the request, and
references to the relevant provisions of the code of judicial conduct, advisory
opinions, case law, and other authority the requestor has consulted in the
matter. The identity, organizational
affiliation, and geographic location of a person requesting a formal advisory
opinion shall be confidential.
(2) Consideration
of Request. (a) The chair of the committee shall assign
requests for formal advisory opinions in rotation to committee members for
research and preparation of preliminary recommendations and draft
opinions. If the information provided in
the request is insufficient in detail to enable the committee to render a
formal advisory opinion, the committee shall request supplemental information
from the requestor to enable it to render a formal advisory opinion. If the requested supplemental information is
insufficient or is not provided within 10 days of the request, the committee
shall so state in a letter to the requestor and shall not render a formal
advisory opinion.
(b) Within 30 days after receipt of the
assignment of the request or receipt of sufficient supplemental information, if
requested, the member to whom the request is assigned shall circulate to all
committee members a preliminary recommendation and draft opinion. Prior to circulation of a preliminary
recommendation and draft opinion, the member to whom the request is assigned
may consult with other committee members.
(c)
Within 15 days after receipt of the preliminary recommendation and draft
opinion, committee members shall circulate to all other committee members any
comments on the recommendation and opinion. Within the same 15-day period any
committee member may also request that a discussion of the preliminary
recommendation and draft opinion be held.
If a majority of the committee determines that a discussion is needed,
the committee shall have a discussion of the matter within 30 days after the
committee determined a discussion was needed.
(d) The committee may consider requests for
formal advisory opinions and opinion drafts in person, by telephone, by
facsimile transmission, by mail, or by any other electronic means.
(e)
1. Within 20 days of whichever of the
following dates is applicable, the committee member to whom the request has
been assigned shall circulate a final draft opinion to the committee members:
a. If no request for discussion is made or if a
request is not agreed to by the committee, the last day for comment on the
preliminary recommendation and draft opinion under par. (c).
b. If a request for discussion is agreed to by
the committee, the date of discussion on the matter under par. (c).
2. Formal advisory opinions shall be decided by
a majority vote of the committee within 10 days after circulation of the final
draft opinion.
(f) Where appropriate, the committee may respond
to a request for a formal advisory opinion by referring the requestor to a
prior formal advisory opinion and by so doing need not issue a new formal
advisory opinion.
(3) Form
of Opinion. Prior to issuance, a
formal advisory opinion shall be edited to omit the names of persons, courts,
places and any other information that may tend to identify the requestor or any
other person. The committee shall
provide a copy of the proposed opinion to the requestor, and within 10 days of
receipt, the requestor may ask that specified information be omitted from it
that may tend to identify the requestor or any other person. A formal advisory opinion shall include a
statement that it does not purport to address the provisions of the Code of
Ethics for Public Officials and Employees, subchapter III of ch. 19 of the
statutes.
(4) Issuance
and Distribution of Formal Advisory Opinion. Upon approval of a majority of the committee,
a formal advisory opinion shall issue in written form sent to the director of
state courts office. The director of
state courts office shall send a copy of the formal advisory opinion to the
requestor, the justices and the clerk of the supreme court, the chief judge of
the court of appeals, the chief judges of the judicial administrative
districts, the state law library and the State Bar of Wisconsin. The director of state courts office shall
retain a copy of each formal advisory opinion and accumulate and distribute at
least annually to all judges a copy of each formal advisory opinion issued by
the committee. The director of state
courts office shall maintain the records of the committee's determinations and
formal advisory opinions.
(5) Reconsideration.
(a) Within 15 days after receipt
of a formal advisory opinion, the requestor may request in writing to the
committee that it reconsider the opinion, explaining the basis for that
request. Within 10 days after receipt of
a request for reconsideration from the requestor, the committee shall respond
by granting the request and approving or revising the opinion or by denying the
request. Upon granting a request for
reconsideration, the committee shall consider the matter as set forth in sec.
(2).
(b) Within 30 days after distribution of a formal
advisory opinion to all judges, a person authorized to request an opinion may
request in writing to the committee that it reconsider the opinion, explaining
the basis for that request. The
committee shall respond as set forth in sub. (a).
(c) The committee may, on its own motion,
reconsider a formal advisory opinion at any time.
(d) A revised formal advisory opinion shall be
issued and distributed as provided in sec. (4).
(6) Requests
for Informal Advice. Requests for
informal advice on the interpretation and application of the code of judicial
conduct to specific factual situations may be submitted in writing to the chair
of the committee or communicated in person or by telephone to any member of the
committee. Any member of the committee
may respond to the request for informal advice.
Reliance on informal advice may not constitute evidence of a good faith
effort to comply with the code of judicial conduct.
Adopted March 7,
1997; Amended June 18, 1997; September 25, 2000; April 26, 2001; January 23,
2002.