Supreme
Court of Wisconsin
Judicial
Conduct Advisory Committee OPINION
98-4
Date
Issued: February 19, 1998
═══════════════════════════════════
ISSUE
May a judge serve as a member of the
board of directors of a state university extension foundation committee whose
purpose is to promote development of the university's county center and to
improve the quality of student life at the center?
ANSWER
Yes, subject to the following
limitations: (1) the judge may not personally participate in the solicitation
of funds or other fund-raising activities; (2) the judge's judicial designation
may not be listed on the letterhead of the foundation's fund-raising letters
unless comparable designations are listed for other directors; and (3) the
judge's name may not be listed on the letterhead of any fund-raising committee
acting on behalf of the foundation.
FACTS
The judge has been nominated to be a
member of the board of directors for an incorporated state university extension
center foundation. The foundation is a
nonprofit corporation which is exempt from income taxes pursuant to I.R.C.
§ 501(3)(c).
The foundation's purpose is to
promote the welfare of the university center by:
1. encouraging
student attendance;
2. offering
assistance in student campus-life projects;
3. encouraging
the enlargement of existing facilities and the acquisition of additional
facilities commensurate with the center's needs and growth; and
4. inaugurating
and supporting scholarship and loan programs.
The board of directors consists of
fifteen members. Each director serves a
three-year term. The board meets
quarterly, usually in the late afternoon.
A meeting generally lasts for 1 1/2 hours.
The university center facilities are
owned by the county and city in which the center is located. The county which the judge serves is not the
county in which the center is located.
Although the board is consulted regarding the enlargement of existing
facilities and the acquisition of additional facilities, the ultimate decision
on these matters
is reserved
to the county and city. The board does
not have the power to make any political decisions.
In the letter requesting an advisory
opinion, the judge has recognized the duty to disqualify should any litigation
involving the foundation or the center be assigned to the judge. In addition, the judge has recognized the
duty to refrain from fund-raising activity.
DISCUSSION
The Committee concludes that the
issue presented involves SCR 60.05(1), (2) & (3).
A. SCR 60.05(1).
SCR 60.05(1) provides:
(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.
The Committee concludes that the
judge's service as a member of the board of directors of the university center
foundation does not violate SCR 60.05(1).
The Comment to this section states that, "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."
The board of director's position
obviously does not demean the judicial office.
Nor do the time demands and the scheduling of the meetings appear to
interfere with the proper performance of the judge's duties. As to impartiality, it is unlikely that the
foundation would be involved in litigation.
While it is more likely that the university center could be involved in
litigation, the venue would likely be the county where the center is located,
not the different county where the judge presides. Finally, if the foundation or the center were involved in
litigation in the county where the judge presides, the judge has recognized the
duty to disqualify. Therefore, the
position does not cast reasonable doubt on the judge's capacity to act
impartially.
B. SCR 60.05(2).
SCR 60.05(2) provides:
(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. [Emphasis added.]
The Committee concludes that the
judge's service as a member of the board of directors of the university center
foundation does not violate SCR 60.05(2).
This provision expressly allows a judge to participate in extra-judicial
activities concerning nonlegal subjects.
The Committee notes that the conduct permitted under this provision is
otherwise "subject to the requirements of this chapter." However, the Committee sees no other
provisions of the Code of Judicial Conduct which bar the judge's proposed
conduct.
C. SCR 60.05(3).
SCR 60.05(3), in relevant part,
provides:
(3) Governmental, Civic or Charitable
Activities.
....
(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....
(c) A judge may serve as an officer, director,
trustee or nonlegal advisor of an organization or governmental agency devoted
to the improve-ment 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:
1. A judge may not serve as an officer,
director, trustee or nonlegal advisor if it is likely that 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....
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,....
....
d. May not use or permit the use of the prestige
of the judicial office for fund raising or membership solicitation. [Emphasis added.]
The Committee concludes that the
judge's service as a member of the board of directors of the university center
foundation does not violate SCR 60.05(3).
As with SCR 60.05(2) which permits a judge to participate in activities
concerning nonlegal subjects, subsections (3)(b) and (c) respectively allow a
judge to: (1) serve on a governmental or private committee or board concerned
with educational activities; and (2) serve as a director of a nonprofit
educational organization.
Like SCR 60.05(2), subsection (3)(c)
also recites a general qualifier that the permitted judicial conduct is
otherwise "subject to the...other requirements of this chapter:" Here again, the Committee sees no other
provisions of the Code of Judicial Conduct which bar the judge's proposed
conduct.
In addition to this general
qualifier, subsections (3)(c) 1. & 2. set out specific limitations. Subsection (3)(c)1. bars a judge from
serving as a director if it is likely that the organization: (1) engages in
proceedings which would ordinarily come before the judge; or (2) frequently
engages in adversary proceedings in the court of which the judge is a member. However, as the Committee has already
explained when speaking to SCR 60.05(1), the likelihood of such litigation
coming before the judge is remote. And,
in any event, the judge has already recognized the duty to disqualify if such
litigation should occur. Therefore, the
Committee concludes that the provisions of this subsection do not bar the judge
from serving as a director.
Subsection (3)(c)2.a., while
allowing a judge to assist in planning fund-raising activities and to
participate in the management and investment of the organization's funds, bars
a judge from personally participating in the solicitation of funds or other
fund-raising activities. In addition,
subsection (3)(c)2.d. bars the use of the prestige of the judicial office for
fund-raising purposes. It is important
to note that these provisions do not bar the judge from holding the director's
position if the organization engages in fund-raising. Rather, the provisions bar the judge from soliciting funds. Here,
the judge has recognized the obligation to obey this provision of the
Code. Assuming that the judge will so
comply, the Committee concludes that the provisions of this subsection do not
bar the judge from serving as a director.
Even though a judge may not
personally engage in fund-raising, the Comment to subsection (3)(c)2.d. recites
that an organization's fund-raising letter may include the name of the judge
and the judge's name and office or other position in the organization. Only if comparable designations are listed
for other persons may the judge's judicial designation be listed. Some jurisdictions do not permit even this
latter practice. See Jeffrey M. Shaman et al., Judicial Conduct and
Ethics, § 9.07 at 292-93 (2d ed.
1995). Nonetheless, the Committee concludes that
the principle stated in the Comment to this subsection of the Code represents
an appropriate standard of judicial conduct for Wisconsin judges in a case such
as this. The judge is therefore cautioned
to assure that any fund-raising letters which use the foundation's letterhead
comport with the Comment to this subsection.
Finally, the Committee notes that
the Comment to subsection (3)(c)2.d. refers only to fund-raising efforts which
use the organization's letterhead. It
does not refer to other fund-raising efforts which do not use the
organization's letterhead, but instead recite the members of the organization's
fund-raising committee. This latter
situation is governed by subsection (3)(c)3.d. which, as the Committee has
already noted, permits a judge to engage in limited fund-raising activities,
but bars a judge from personal solicitation of funds. Therefore, under no circumstances may the judge's name be listed
on the letterhead of a fund-raising committee's solicitation letter.
CONCLUSION
The Committee concludes that the
judge may serve as a member of the board of directors of the university
foundation committee so long as the judge does not personally solicit funds on
behalf of the foundation. The Committee
further concludes that the foundation's fund-raising letters may not list the
judge's judicial designation unless comparable designations for other directors
are also listed. However, the judge's
name may not be listed on the letterhead of any fund-raising committee acting on
behalf of the foundation.
APPLICABILITY
This opinion is advisory only, is
based on the specific facts and questions submitted by the petitioner to the
Judicial Conduct Advisory Committee, and is limited to questions arising under
the Supreme Court Rules, Chapter 60 -- Code of Judicial Conduct. This opinion is not binding upon the
Wisconsin Judicial Commission or the Supreme Court in the exercise of their
judicial discipline responsibilities.
This opinion does not purport to address provisions of the Code of
Ethics for Public Officials and Employees, subchapter III of Ch. 19 of the
statutes.
I hereby certify that this is Formal
Opinion No. 98-4 issued by the Judicial Conduct Advisory Committee for the
State of Wisconsin this 19th day of February, 1998.
_________________________________
Thomas
H. Barland, Chair