CODE OF JUDICIAL CONDUCT
JUDICIAL COUNCIL COMMITTEE'S NOTE, 1979: The following rules, called the code of judicial ethics, govern the members of the Wisconsin judiciary. These rules were originally adopted by the supreme court on November 14, 1967, effective January 1, 1968. They were amended on June 28, 1974; December 23, 1977, March 16, 1978; March 28, 1978; and November 20, 1979. The rules were originally numbered standards 1 to 16 and rules 1 to 17. They have been clarified and numbered 60.001 to 60.19 for uniformity and convenience.
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 ABA Standards Relating to Judicial Discipline and Disability Retirement.
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.
<![if !supportLists]>(7) <![endif]>"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.
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.
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.
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.
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 New York, 108 S. Ct. 2225, 101 L. Ed. 2d 1 (1988); Board of Directors of Rotary International v. Rotary Club of Duarte, 481 U.S. 537 (1987), 95 L. Ed. 2d 474; Roberts v. United States Jaycees, 468 U.S. 609 (1984). Organizations dedicated to the preservation of religious, fraternal, sororal, spiritual, charitable, civic or cultural values which do not stigmatize any excluded persons as inferior and therefore unworthy of membership are not considered to discriminate invidiously.
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.
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.
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.
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.
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.
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.
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.
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.
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:
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.
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.
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.
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.
<![if !supportLists]>4. <![endif]>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:
<![if !supportLists]>1. <![endif]>An issue in the proceeding.
<![if !supportLists]>2. <![endif]>The controversy in the proceeding.
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.
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.
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.
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.
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.
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.
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:
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.
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;
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
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.
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.
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.
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.
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.
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.
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:
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.
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.
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.
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.
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.
<![if !supportLists]>(6) <![endif]>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.
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.
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.
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.
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. Milwaukee County Election Comm’n, 2003 WI 103, 263 Wis. 2d 709, 666 N.W.2d 816.
(2) Party membership and activities.
<![if !supportLists]>(a) <![endif]> 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.
<![if !supportLists]>(b) <![endif]>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.
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.
<![if !supportLists]>(3) <![endif]>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.
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.
This subsection is new. The first sentence is based on the August 2003 amendments to the ABA model code of conduct.
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. 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 or candidate for judicial office should also be mindful of the requirements of SCR 60.03 and 60.04(4).
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.
<![if !supportLists]>(5) <![endif]> 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.
(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.
SCR CHAPTER 60
CODE OF JUDICIAL CONDUCT
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 Wisconsin judicial commission or the supreme court in the exercise of their judicial discipline responsibilities. The fact that a judge or candidate for judicial office has requested and relied upon a formal advisory opinion should be taken into account by the Wisconsin judicial commission in its disposition of complaints and in determining whether to file a formal complaint with the supreme court. If a judge or candidate for judicial office has requested and received a formal advisory opinion, compliance of the judge or the candidate for judicial office with that opinion shall constitute evidence of a good faith effort to comply with the code of judicial conduct in a judicial disciplinary proceeding based, in whole or in part, on the conduct for which the opinion was requested.
(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,.