Vol. 70, No. 5, May
1997
Supreme Court Orders
The Wisconsin Supreme Court has issued an order establishing a Judicial
Conduct Advisory Committee, which follows the court's adoption of the Code
of Judicial Conduct.
Code of Judicial Conduct
In the Matter of the Amendment of the Supreme Court Rules: SCR Chapter
60 - Code of Judicial Conduct
Order 95-05
When it adopted the Code of Judicial Conduct, effective Jan. 1, 1997,
the court stated that it would establish by rule a Judicial Conduct Advisory
Committee to render opinions on the propriety of contemplated or proposed
future conduct of judges under the Code. The Judicial Conduct Advisory Committee
shall function pursuant to the rules and procedures adopted by this order.
The initial members and terms of the Judicial Conduct Advisory Committee
are:
- Hon. Thomas Barland, chair, Eau Claire, 3 years
- Hon. James Fiedler, Madison, 2 years
- Hon. Shelley Gaylord, Madison, 1 year
- Prof. Eric Godfrey, Ripon, 3 years
- Hon. David Hansher, Milwaukee, 2 years
- Hon. Barbara Kluka, Kenosha, 1 year
- Hon. Neal Nettesheim, Waukesha, 3 years
- Prof. Eva Soeka, Milwaukee, 2 years
IT IS ORDERED that, effective the date of this order, the Appendix to
the Code of Judicial Conduct, SCR Chapter 60, is created to read:
CODE OF JUDICIAL CONDUCT APPENDIX
A. Rules of the Judicial Conduct Advisory Committee
(1) Membership. A judicial conduct advisory committee consisting
of eight 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 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 on an urban area court, one judge member shall be a circuit
judge 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, two 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
requests 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 it
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 Opinion. A request for
a formal advisory opinion shall be in writing addressed to the chair of
the committee in care of the Director of State Courts Office, P.O. Box 1688,
Madison, WI 53701-1688. 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 request shall be forwarded to the chair
of the committee. 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 15 days after receipt of the assignment of the request or
receipt of sufficient supplemental information, if requested, the member
to whom a 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 a request
is assigned may consult with other committee members.
(c) Within 10 days after the circulation of a preliminary recommendation
and draft opinion, committee members shall circulate to all other committee
members any comments on the recommendation and opinion.
(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) Within 10 days after the last day for comment on a preliminary recommendation
and draft opinion, the committee member to whom the request has been assigned
shall circulate a final draft opinion to the committee members. Formal advisory
opinions shall be decided by a majority vote of the committee within five
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 10 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.
IT IS FURTHER ORDERED that the court will review the operation of the
Judicial Conduct Advisory Committee after it has been functioning for two
years.
IT IS FURTHER ORDERED that notice of this amendment of the Supreme Court
Rules shall be given by a single publication of a copy of this order in
the official state newspaper and in an official publication of the State
Bar of Wisconsin.
Dated at Madison, Wis.,
this 7th day of March, 1997.
By the court:
Marilyn L. Graves, Clerk |