Vol. 82, No. 4, April 2009
The preamble to the code of Professional Responsibility contains 13 numbered paragraphs titled “Preamble: A Lawyer’s Responsibilities.” Many responsibilities are assigned to lawyers in the Preamble, and entire law reviews could and perhaps should be filled with detailed articles describing and explicating those responsibilities. However, this article discusses only this single sentence found in Section 6:
“In addition, a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.”
By itself this sentence imposes more than enough responsibility on a lawyer to consume a full career, a full State Bar presidency (just ask my predecessor Tom Basting), and, certainly, a full president’s column.
Judicial elections in our constitutional democracy are making these the worst of times for the public’s confidence in the justice system. Some judicial campaigns seem to reflect a concerted effort to confuse the public about the justice system. As I write this column, we are awaiting a determination by the Judicial Commission on whether one campaign ad that aired last year should subject a sitting Wisconsin Supreme Court justice to discipline. A new campaign for supreme court is raging, with the challenger saying that campaign donations to the incumbent will prejudice the incumbent’s opinions on a case and insisting that she step down from hearing certain cases pending in the court. In Milwaukee, one judicial candidate accurately “accuses” his opponent, a public defender, of defending clients. (Who can think of anything more heinous than that?) As if all of this wasn’t enough, U.S. District Judge Barbara Crabb ruled in February that the provisions of the Wisconsin Judicial Code prohibiting judges from holding membership in political parties, endorsing candidates, and engaging in direct fundraising are unconstitutional.
None of these situations are likely to increase the public’s confidence in the fairness and impartiality of its courts.
There are indications, however, that civilized debate that has the potential to inform the public and restore confidence may be on the horizon. Competing petitions in the Wisconsin Supreme Court ask the justices to create new rules: One petition, if granted, would require the recusal of a judge in a case involving a party who made a campaign contribution to the judge of more than $1,000, while the other seeks a declaration that campaign contributions should never be the basis for a judge’s recusal. The court has deferred a public hearing on these petitions, in the hope that the U.S. Supreme Court will help clarify the issue of judicial disqualification based on campaign contributions and campaign support in the recently argued case of Caperton v. A.T. Massey Coal Co. In Caperton, the Court will consider whether a justice supported by more than $3 million in indirect campaign advertising by one of the parties to a lawsuit should have stepped down from the case. The justice participated in the case and was the deciding vote in a decision in favor of the contributor.
The Wisconsin Legislature is considering various judicial campaign-related proposals, including moving judicial elections to the fall, requiring full public funding of supreme court campaigns, and creating an appointed, not elected, judiciary.
Our current rules require judges to recuse themselves from cases in situations in which “reasonable, well informed persons … would reasonably question the judge’s ability to be impartial.” SCR 60.06.04(4.) In addition, Wis. Stat. section 757.19 imposes a mandatory disqualification on judges in certain situations, for example, when the judge is related to a party or counsel, is a material witness, formerly represented a party, or has a significant financial interest in the outcome of the action. Wis. Stat. section 757.19(2)(g) provides that a judge is disqualified when “for any reason, he or she cannot, or it appears he or she cannot, act in an impartial manner.”
The State Bar can help to educate the public about the role of the judiciary. I have reappointed the Judicial Campaign Integrity Committee started by Tom Basting, but we need to do more. The judiciary is the third branch of government, equal to and independent from the other branches but ideally above the distractions and distortions that sometimes characterize electoral politics. We need to take every opportunity to so educate the public. We need more active “Section 6” speakers. Judicial elections should be an opportunity to educate the public, not an opportunity to misinform the public. It is, after all, right there in the Code of Professional Responsibility.