Supreme Court Orders
The Wisconsin Supreme Court sets a public hearing
for Nov. 7 to consider proposed revisions of SCR Chapter 60, the Code
of Judicial Conduct.
Code of Judicial Conduct
In the Matter of the Amendment of Supreme Court Rules: SCR Chapter
60, Code of Judicial Conduct – Campaigns, Elections, Political Activity
Order 00-07
On June 4, 1999, the Supreme Court's Commission on Judicial Elections
and Ethics filed its final report on its examination of judicial
campaign ethics and judges' participation in partisan politics.
Attached to this order are the proposals included in that report
for the retention or revision of specified provisions of the Code
of Judicial Conduct, SCR chapter 60. The Commission's report and
materials related to it are available on the Supreme Court home
page: www.courts.state.wi.us, in the section entitled "Reports filed
with the Supreme Court."
IT IS ORDERED that a public hearing on the final report of and
the rule amendments proposed by the Commission on Judicial Elections
and Ethics shall be held in the Supreme Court Hearing Room, 119
Martin Luther King Jr. Blvd., Madison, Wis., on Nov. 7, 2000, at
1:30 p.m.
IT IS FURTHER ORDERED that the court's conference in the matter
shall be held promptly following the public hearing and, if necessary,
continued on Nov. 8, 2000.
IT IS FURTHER ORDERED that notice of the hearing be given by a
single publication of a copy of this order, including the attached
rule proposals, in the official state newspaper and in an official
publication of the State Bar of Wisconsin not more than 60 days
nor less than 30 days before the date of the hearing. Dated at Madison,
Wisconsin, this 28th day of April, 2000. By the court: Cornelia
G. Clark, Clerk of Court
Rule Proposal
SCR 60.06 A Judge or Judicial Candidate Shall Refrain
From Inappropriate Political Activity.
(1) 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.
Reporter's Note: No change from the current rule is proposed.
(2) Party membership and activities. A judge or candidate
for judicial office or judge-elect shall not
(a) be a member of any political party; or
(b) participate in the affairs, caucuses,
promotions, platforms, endorsements, conventions or activities of
a political party or of a candidate for partisan office; or
(c) make or solicit financial or other contributions
in support of a political party's causes or candidates; or
(d) publicly endorse or speak on behalf of
its candidates or platforms. Nothing herein shall be deemed to prohibit
a judge or 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. If attendance at such an event requires the
purchase of a ticket or otherwise requires the payment of money,
the amount paid by a judge or 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 such attendance.
Reporter's Note: 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 should be encouraged
to 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 last two
sentences of this rule are designed to make this clear. 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.
(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 and judge-elect shall
maintain, in campaign conduct and otherwise, the dignity appropriate
to judicial office.
Reporter's Note: 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 or judicial candidate
shall not do or authorize others to do in his or her behalf anything
which would commit or appear to commit the judge or judicial candidate
in advance with respect to any particular case, or controversy,
or legal issue likely to come before the court to which election
or appointment is sought, or which suggests that, if elected or
chosen, the judge or judicial candidate would administer his or
her office with partiality, bias or favor. Nothing herein shall
restrict a judge or judicial candidate from making statements
of position concerning court rules or administrative practices
or policies.
Reporter's Note: The rule modifies SCR 60.06(3) by eliminating
the reference to appeals to cupidity or partisanship and, with
respect to acts by actors other than the judge or candidate, by
substituting the word "authorize" for "permit" to make it clearer
that a judge or candidate cannot be held responsible for unauthorized
statements of third parties not subject to the control of the
judge or candidate. The last sentence, coupled with the earlier
reference to "legal issues," makes it clear that candidates are
free to take campaign positions concerning court rules, policies
and practices not related to legal issues before the court or
likely to come before the court. Furthermore, the rule is not
intended to nor does it prohibit judicial candidates from commenting
on a particular "controversy, or legal issue likely to come before
the court," but rather from committing or appearing to commit
in advance with respect to outcomes or decisions. It is most difficult
to codify a line between a challenger's criticism of a judge's
past decision or opinions (or a candidate's demonstration of position
on legal issues) which is relevant to that judge's (or candidate's)
judicial philosophy and such criticism which is an attempt to
exploit emotional public response to such decisions or opinions
(or positions). Because of that difficulty and the need to preserve
the protections of the First Amendment to the Constitution of
the United States, we do not attempt to draw that line. Transforming
an election into an electoral review of a judge's opinion, conscientiously
arrived at, is an attack on the independence of all our judges.
Moreover, an attack on a past decision or opinion almost always
implies a promise that the challenger would decide or vote differently
on similar issues in future cases and thus violates SCR 60.06(3)(b).
(c) Misrepresentations. A candidate for judicial
office should restrict his or her comments concerning an opposing
candidate to matters which are relevant to the opponent's integrity,
impartiality, judicial philosophy and temperament, legal ability
and industry. A candidate for judicial office shall 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. A candidate for judicial office shall not knowingly or with
reckless disregard for the truth misrepresent the identity, qualifications,
present position or any other fact concerning the judge or candidate
or his or her opponent. Such a candidate shall not:
-
use the title of an office not currently held
by a judicial candidate in a manner that implies that the judicial
candidate does currently hold that office,
- use the term "judge" when a judge is a candidate for another judicial
office and does not indicate the court on which the judge currently
serves,
-
use the term "re-elect" when the judicial candidate
has never been elected to the office for which he or she is a
judicial candidate,
-
make a false statement concerning the formal schooling
or training completed or attempted by a judicial candidate; a
degree, diploma, certificate, scholarship, grant, award, prize
or honor received, earned or held by a judicial candidate; or
the period of time during which a judicial candidate attended
any school, college, program or institution,
- make a false statement concerning the professional, occupational,
or vocational licenses held by a judicial candidate, or concerning
any position a judicial candidate held for which he or she received
compensation,
-
make a false statement that a candidate for judicial
office has been arrested, indicted, charged with or convicted
of a crime or accused by a legally competent authority or found
by a legally competent authority to have violated professional,
ethical, or other standards applicable to the candidate,
-
make a statement that a candidate for judicial
office has been arrested, indicted, charged with or convicted
of a crime or accused by a legally competent authority or found
by a legally competent authority to have violated professional,
ethical, or other standards applicable to the candidate, without
disclosing the outcome of all pending or concluded legal proceedings
resulting from the arrest, indictment, charge, conviction, accusation,
or finding.
-
make a false statement that a candidate for judicial
office has a record of treatment or confinement for mental disorder,
-
make a false statement that a candidate for judicial
office has been subjected to military discipline for criminal
misconduct or dishonorably discharged from the armed services,
-
falsely identify the source of a statement, issue statements
under the name of another person without authorization, or falsely
state the endorsement of or opposition to a candidate for judicial
office by a person, organization, political party, or publication.
A candidate for judicial office is under no duty to monitor
statements made by others not subject to his or her control,
but a candidate who knows of material misrepresentations or
material misleading statements by third parties concerning himself
or herself or his or her opponent, which statements are likely
to confuse or mislead the electorate, should publicly disclaim
such statements.
Reporter's Note: This subsection is new.
It has no counterpart either in the present Code of Judicial Conduct
or its predecessor. The 1967 Code contained sec. 60.01 ("Standards")
which included sub. (10): "A judge should always bear in mind
that need for scrupulous adherence to the rules of fair play."
It is not clear, however, that the subsection was drafted with
election conduct in mind. The language in the proposed rule is
derived in large measure from the Ohio Code of Judicial Conduct.
The first and last sentences are hortatory and aspirational. Thus,
"should" is used rather than "shall." The remaining standards
are mandatory. Intentional and reckless misrepresentations are
prohibited, as are statements that are knowingly misleading, though
true, and statements that are likely to confuse the electorate
about the proper role of judges and lawyers in the American adversary
system. Examples of the latter kinds of statements may include
campaign rhetoric which suggests that voting for a particular
candidate will effect law reform or other results which are constitutionally
committed to the political and nonjudicial branches or government.
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. However, when a candidate knows of such statements which
are likely to confuse or mislead the electorate, the candidate
is called upon to disclaim them.
(4) Solicitation and Acceptance of Campaign Contributions. A
judge or candidate for judicial office or judge-elect shall not
personally solicit or accept campaign contributions. A candidate
may, however, establish a committee to conduct a campaign for the
candidate through media advertisements, brochures, mailings, candidate
forums, and other means not prohibited by law. The committee may
solicit and accept lawful campaign contributions and manage the
expenditure of funds for the candidate's campaign. The committee
is not prohibited from soliciting and accepting lawful campaign
contributions from lawyers and other contributors, provided, however,
that the committee shall not knowingly solicit or accept contributions
from any litigant with a case before the court to which election
is sought. 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.
Reporter's Note: This subsection reflects
long-standing practice in Wisconsin. Committees are prohibited from
knowingly soliciting or accepting contributions from litigants with
a case before the court to which election is sought. The rule does
not impose an obligation on candidates or committees to cull campaign
mailing lists for names of current litigants or to search the court's
calendar or docket to identify all litigants throughout the campaign.
Especially in courts with heavy case volume and dockets that change
daily through new filings and dismissals, imposing a duty to search
and identify all current litigants and to cross-check against mailing
lists would be onerous. Only knowing solicitation and acceptance
of contributions from litigants are prohibited.
(5) Solicitation and Acceptance of Endorsements. A judge
or candidate for judicial office may solicit or accept endorsements
supporting his or her election or appointment personally or through
his or her committee. The committee is not prohibited from soliciting
and accepting endorsements from lawyers and others, provided, however,
that no judge, candidate for judicial office, or committee shall
knowingly solicit or accept an endorsement from any litigant with
a case before the court to which election or appointment is sought.
In soliciting or accepting an endorsement, a judge or candidate
for judicial office should be mindful of the values underlying SCR
60.03.
Reporter's Note: 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. As with the solicitation and acceptance
of campaign contributions, knowing solicitation and acceptance of
endorsements from current litigants are prohibited. Neither culling
nor cross-checking of names on mailing lists or dockets is required.
SCR 60.07 Applicability.
(1) General. Subject to sub.(2), all judges shall comply
with this chapter. Candidates for judicial office and judges-elect
shall comply with SCR 60.06.
(2) Part-time Judicial Service. A judge who serves on a
part-time basis, including a reserve judge, a part-time municipal
judge and a part-time court commissioner, is not required to comply
with the following: SCR 60.05(3)(a), (b)(c)1.b., 2.a, and c., (4)(a)1.b,
(b), (c), (d) and (e), (5), (6), (7) and (8).
Reporter's Note: Candidates for judicial
office and judges-elect are subject to the requirements of SCR 60.06.
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