In Re Promulgation of a Code of Judicial Ethics

36 Wis. 2d 252 (1967)

IN RE PROMULGATION OF A CODE OF JUDICIAL ETHICS.

Supreme Court of Wisconsin.

November 14, 1967.

PER CURIAM.

After submission of a resolution of the Board of Governors of the State Bar of Wisconsin urging the drafting and adoption of a Code of Judicial Ethics for Wisconsin, this court created a committee of nine to study the power of the court to promulgate a code of ethics for judges and the desirability of taking such action. The committee consisted of the following:

Circuit Judges: Andrew W. Parnell, Elmer W. Roller, Edwin M. Wilkie

County Judges: James H. Levi, Marvin C. Holz, Francis H. Wendt

Attorneys: John A. Kluwin, John C. Whitney, Francis J. Wilcox

The committee selected its own chairman, Judge Andrew W. Parnell, and on May 28, 1965, it submitted its recommendations that the court had the power to promulgate a code of ethics and that such a code was desirable.

On October 17, 1966, the committee submitted a proposed Code of Judicial Ethics. After due notice a public hearing was held on September 12, 1967. There were appearances by members of the bench and bar in regard to the power of this court to promulgate any code and the desirability of adopting particular standards and rules. We need only to decide whether the court has the power to promulgate the particular code of ethics that accompanies this opinion.

We conclude that this court possesses such power and that the promulgation of a code of ethics is desirable. No doubt a code of ethics could contain provisions concerning matters of such a private nature and of such scope as to be beyond the ambit of the power of this court to promulgate. The proposed code, however, is well within the scope of our power. Moreover, we are not now concerned with the mechanics of the enforcement power and its exercise whether by this court, a commission, a court of the judiciary, or by any other agency.

At least twenty-three states have adopted a Code of Judicial Ethics by supreme court action, generally in the exercise of their recognized inherent and implied power of supervision over the courts, judges, and attorneys of the judicial system. This power has been considered generally to be as broad as is necessary for the administration of justice or as needed to protect the public or the state or a particular litigant. Our constitution has expressly given this court superintending power over inferior courts.

In the Integration of the Bar Cases, especially those appearing in 249 Wis. 523, 25 N.W.2d 500, and 273 Wis. 281, 77 N.W.2d 602, we pointed out this court's inherent power to control and regulate the members of the bar as officers of the court to promote high standards of practice. In bar Rule 9 we adopted the canons of ethics of the American Bar Association as supplemented or modified by the pronouncements of this court as rules governing the members of the bar in their practice of the law. By Rule 10, section 5, we made it a duty of district grievance committees to receive complaints of improper conduct on the part of members of the judiciary within the district of the committee. This was all to the end that justice might be better served. As Mr. Chief Justice EDWARD G. RYAN of this court said in his famous speech to the law class of 1880, "Professional duty faithfully and well performed is the lawyer's glory. It is equally true of the bench as of the bar."

We hold this court has an inherent and an implied power as the supreme court, in the interest of the administration of justice, to formulate and establish the Code of Judicial Ethics accompanying this opinion. It governs judicial acts of a judge in his official capacity and certain personal conduct which interferes or appears to interfere with the proper performance of his judicial conduct. This power, inherent in the supremacy of the court and implied from its expressed constitutional grants of supervisory power, embraces all members of the judiciary including members of this court not only because they are lawyers but also because they are judicial officers in a court system constituting the judicial branch of the state government with a solemn duty to perform their judicial duties well.

We believe it is desirable that a Code of Judicial Ethics be adopted for Wisconsin judges. Although, as the committee on the proposed code reported, "The history of the Wisconsin judiciary demonstrates few, if any, problems of judicial misconduct," there is a need for standards and rules of conduct on the part of judges so that they will have prescribed guidelines for their conduct insofar as it affects the performance of their duties in the fair and impartial administration of justice. Accordingly, we herewith adopt the following Code of Judicial Ethics which varies in some important details from the code proposed by the committee. Moreover, ambiguities have been resolved. The code is divided into standards and rules, the standards being statements of what the general desirable level of conduct should be, the rules being particular canons, the violation of which shall subject an individual judge to sanctions. Comments are included with certain rules. Each is explanatory or an interpretation of the rule and is a part of the rule. Where provisions of the constitution or of statutes are more restrictive, they will apply.

The entire code, except for Rule 7, is effective January 1, 1968. Rule 7 is effective January 1, 1970. Because of possible hardship in its immediate application a reasonable period is provided for compliance with this rule. Provisions of the code apply to judges of all courts, except that Rules 4, 5, 6, 7 and 9 shall not apply to reserve judges and municipal justices who are part-time and who are expected to disqualify themselves in a particular matter if the rule would otherwise be applicable.

A committee will be appointed by the court to study and recommend the enforcement, organization and procedures, including possible constitutional and statutory changes and necessary implementing court rules.

CODE OF JUDICIAL ETHICS.

Standards and Rules.

Preamble.

The administration of justice requires adherence by the judiciary to the highest ideals of personal and official conduct. The office of judge casts upon the incumbent duties in respect to his conduct which concern his relation to the state, its inhabitants, and all who come in contact with him.

Standards.

The following standards set forth the significant qualities of the ideal judge:

1. A judge should be mindful that ours is a government of law and not of men and he should not permit his personal concept of justice to override the law. He should administer his office with due regard to the integrity of the system of law itself, remembering that he is not a repository of arbitrary power but a judge under the sanction of law.

2. A judge should support the United States and Wisconsin constitutions and fearlessly observe and apply their fundamental limitations and guarantees.

3. A judge should be temperate, attentive, patient, industrious, and, above all, impartial. He should administer the law free of partiality and the appearance of partiality. To that end he should avoid membership in, or association with, an organization whose objectives, policies, or activities are incompatible with the fair and evenhanded administration of justice.

4. A judge should be prompt in the performance of his duties, recognizing that the time of litigants, jurors, witnesses, and attorneys is of value. He should organize his court and supervise the personnel under his charge so that the business of the court is dispatched with promptness and convenience.

5. A judge should cooperate with other judges as members of a common judicial system to promote the satisfactory administration of justice. He should respect all expressions of judicial opinion.

6. A judge should be considerate and courteous to litigants, jurors, witnesses, attorneys, and all in attendance upon the court. He should require similar conduct on the part of clerks, court officials, and counsel. He should conduct all judicial proceedings so as to reflect the importance and seriousness of the inquiry to ascertain the truth.

7. A judge should utilize his opportunities to criticize and correct unprofessional conduct of attorneys and counsellors, brought to his attention; and, if adverse comment is not a sufficient corrective, should send the matter at once to the proper investigating disciplinary authorities.

8. A judge should, without being arbitrary or forcing matters to trial unjustly, endeavor to hold counsel to a proper appreciation of their duties to assist in combating delay and in promoting prompt justice.

9. A judge should conduct the work of his court with dignity and decorum and without interference which might detract from the proper courtroom atmosphere. He should so conduct himself during trials and hearings that his attitude, manner, or tone toward counsel or witnesses will not prevent the proper presentation of the cause or the ascertainment of the truth. He may properly intervene whenever he considers it necessary to clarify a point or expedite the proceedings. He should not make an unnecessary display of learning, express a premature judgment, or add to the embarrassment or timidity of witnesses or counsel.

10. A judge should always bear in mind the need of scrupulous adherence to the rules of fair play. He should not permit private interviews, arguments, briefs or communications designed to influence his decision. He should not act upon ex parte applications unless the necessity for prompt action is clearly shown, granting relief only when fully satisfied that the law permits it and the emergency requires it.

11. A judge should grant to all parties the opportunity to present, by a full and fair record, or transcript, questions exactly as they are presented and determined. In disposing of contested cases he should indicate the reasons for his action.

12. A judge should not seek to be extreme, peculiar, spectacular or sensational in his judgment or in his conduct of the court. He should not compel persons brought before him to submit to discipline of his own devising without authority of law. In imposing sentence he should not seek popularity or publicity by exceptional severity or undue leniency.

13. A judge should be fair, reasonable and just to all parties in fixing, granting, or approving compensation for services or charges under his control. He cannot rid himself of this responsibility by the consent of counsel.

14. A judge should contribute to the public interest by advising, suggesting, and supporting rules and legislation which, from his judicial observation and experience, will improve the administration of justice.

15. A judge should not restrict access to court records or proceedings except as authorized by law. He should not seek publicity on pending cases. He should exercise control of lawyers appearing before him in respect to public statements which he considers may prejudice or impede a fair trial in a pending case.

16. Justices of the appellate court, in deciding cases, should so indicate their views as to clarify the law and guide further proceedings involving similar questions. They should seek solidarity of conclusion and should not yield to pride of opinion. They should file separate opinions only in cases of conscientious differences on fundamental principles.

Rules.

The court promulgates the following rules because the requirements of judicial conduct embodied therein are of sufficient gravity to warrant sanctions if they are not obeyed:

1. A judge shall not exercise his duties with respect to any matter in which a near relative by blood or marriage is a party, has an interest, or appears as a counsel. He shall not participate in any matter in which he has a significant financial interest or in which he previously acted as counsel.

Comment: This rule covers those major conflicts of interest which should automatically disqualify a judge. There will be many lesser situations in which the judge's own sense of propriety may indicate that he disqualify himself. There may also be even lesser situations in which the judge will determine that full disclosure to counsel is adequate.

2. A judge shall not hold any office of public trust except a judicial office during the term for which he is elected, or appointed.

3. A judge shall not become a candidate for a federal, state, or local nonjudicial elective office without first resigning his judgeship.

Comment: This rule was considered necessary because of the possibility that a candidacy for an office to take effect after the expiration of the judicial term would not be barred by Rule 2. It was felt that the appeal to the electorate by a sitting judge for a nonjudicial office was inherently in conflict with his duty to impartially serve all of the people.

4. A judge shall not engage in the practice of law.

5. A judge shall not accept any duties or continue to administer or hold any fiduciary position or position of trust, or incur any obligations which are, or will be, inconsistent with the expeditious, impartial, and proper administration of the duties of his office or which will involve association with enterprises or persons which are likely to come before him in his official capacity.

6. A judge shall not make or retain any personal investments in enterprises which are likely to be involved in litigation or proceedings in the court.

7. A judge shall not hold any office or directorship in any public utility, bank, savings and loan association, loaning institution, insurance company, or any other corporation or business enterprise or venture which is affected with a public interest. He shall not hold an office or directorship in any corporation, business enterprise, or venture, if the holding thereof interferes with the performance of his official duties or permits the exploitation of the prestige of his office or conflicts with the impartial exercise of his official duties.

8. A judge shall not accept gifts from lawyers, groups, or persons whose interests are, are likely to be, or have been before him in his official capacity.

Comment: This section does not prohibit reasonable financial contributions to a voluntary campaign committee in behalf of a judicial candidate. The non-partisan elective process as now constituted is an expensive one and until other means of conducting and financing judicial elections are devised, this rule should be so construed.

9. A judge shall not, directly or indirectly, lend the influence of his name or the prestige of his office to aid or advance the welfare of any private business or permit others to do so. He shall not personally solicit funds for any purpose, charitable or otherwise.

10. A judge shall not exercise the power of appointment vested in him by law for his personal, financial, or partisan advantage.

11. A judge shall not indulge in gross personal misconduct.

12. A judge shall not be a member of any political party or participate in its affairs, caucuses, promotions, platforms, endorsements, conventions, or activities. He shall not make or solicit financial or other contributions in support of its causes, or publicly endorse or speak on behalf of its candidates or platforms.

Comment: As an individual, a judge is entitled to his personal view on political questions, and to his rights and opinions as a citizen. However, as a member of Wisconsin's non-partisan judiciary, a judge must avoid any conduct which associates him with any political party. This rule does not preclude a judge from attending a political meeting as a member of the public, but he shall not attend as a participant.

13. A judge who is a candidate for judicial office shall not make, or permit others to make in his behalf, promises or suggestions of conduct in office which appeal to the cupidity or partisanship of the electing or appointing power. He shall not do, or permit others to do in his behalf, anything which would commit him, or appear to commit him in advance, with respect to any particular case or controversy, or which suggests that, if elected or chosen, he would administer his office with partiality, bias, or favor.

14. A judge shall not, when it will interfere with the judicial process or fair trial, permit any radio or TV reproductions or taking of pictures in the courtroom during recess or before or after proceedings, or in adjoining corridors or offices; nor shall he permit any radio or TV reproductions or taking of pictures in the courtroom at any time during judicial proceedings.

Comment: The rule applies to all judicial proceedings but shall not be applicable to investiture, ceremonial, or naturalization proceedings.

15. A judge shall not, while a judicial proceeding is pending, make any comment upon its merits, or make any comment which might affect its outcome or preclude a fair trial.

16. An aggravated and persistent failure to comply with the Standards of this code shall be deemed a rule violation.

Addendum.

These rules, except Rule 7, are effective January 1, 1968. Rule 7 is effective January 1, 1970. Rules 4, 5, 6, 7, and 9 do not apply to occupants of part-time judicial offices such as reserve judges and municipal justices.

The following memorandum was filed February 2, 1968.

PER CURIAM.

This court has considered the requests of the Milwaukee County Board of Judges dated December 28, 1967, that Rule 14 of the Code of Judicial Ethics be suspended and that this court schedule a hearing on Rule 14 at which the news media and other interested parties could appear. The court (by a divided vote) denies the request to suspend Rule 14 of the Code of Judicial Ethics but (by a unanimous vote) grants a hearing on the question of whether Rule 14 should be reconsidered and modified; such hearing shall be open to all interested persons and shall be held on May 10, 1968, at 1:30 p. m. in the courtroom of the supreme court.

The court has also considered the resolution of the Wisconsin Judicial Conference dated January 11, 1968, requesting this court to delay the effective date of the Code of Judicial Ethics until full implementation of the Code is effected, and has decided (by a divided vote) not to change the effective date of the Code of Judicial Ethics.