Vol. 70, No. 2, February 1997
Supreme Court Orders
The Wisconsin Supreme Court has modified SCR
Chapter 60 - Code of Judicial Conduct following input from the
judiciary, other judicial officers and the public. The court also will
hold public hearings on March 18 regarding the following petition
subject: requests for publication of court of appeals opinions; guardian
ad litem legal education; and rules of appellate procedure as to the
number, form and length of briefs and appendices. The
hearings will be held at 1:30 p.m. in the Supreme Court Room in the
State Capitol, Madison, Wis.
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
In its July 1, 1996, opinion repealing and recreating the Code of
Judicial Ethics, chapter 60 of the Supreme Court Rules, effective Jan.
1, 1997, the court invited members of the judiciary and other judicial
officers governed by the Code, as well as the public, to file comments
with the court by Nov. 1, 1996, expressing their concerns with the
effectiveness of the new Code and potential problems in its enforcement.
The court has received and carefully considered the comments that have
been filed and has determined that some modification of the Code is
warranted prior to its effective date. The court has determined that
additional modification of the Code may be warranted after further
consideration and, in some cases, following notice and the holding of a
public hearing.
The court does not address those comments that question the
applicability of certain provisions of the Code to specified conduct, as
they present questions or concerns that properly are the subject of a
request for an opinion, with a full exposition of pertinent facts, from
the Judicial Ethics Advisory Committee the court will appoint
shortly.
IT IS ORDERED that, effective the date of this order, chapter 60 of
the Supreme Court Rules, as repealed and recreated by the July 1, 1996,
order of the court, is amended as follows:
1. The title of SCR chapter 60 is amended to read: CODE OF JUDICIAL
CONDUCT and Code of Judicial Ethics, wherever it appears in SCR chapter
60, is amended to read Code of Judicial Conduct.
2. SCR 60.01(3) is amended to read:
(3) "Court personnel" means the clerk of court and sheriff
department employees providing staff services to the court
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.
3. The Comment to SCR 60.03(2) is amended to read:
COMMENT: 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.
This subsection does not reach the matter of a judge's endorsement
of a candidate for judicial or other nonpartisan elective office. That
matter is left for consideration together with other issues involving a
judge's political and campaign activity by the committee the court will
appoint to study and to make recommendations to the court.
A judge must not testify voluntarily as a character witness because
to do so may lend to 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.
4. SCR 60.04(1)(g)4. is amended to read:
4. A judge may, with the consent of the parties, confer separately
with the parties and their lawyers in an effort to mediate
or settle matters pending before the judge.
5. SCR 60.04(1)(n) is repealed.
6. The Comment to SCR 60.04(2) is amended to read:
COMMENT: Appointees of a judge include assigned
counsel, officials such as referees, commissioners, special masters,
receivers and guardians, and personnel such as clerks,
secretaries judicial assistants and bailiffs.
Consent by the parties to an appointment or an award of compensations
does not relieve the judge of the obligation prescribed by SCR
60.04(2)(c).
7. SCR 60.05(4)(c) is repealed and recreated to read:
(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.
COMMENT: 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.
8. SCR 60.05(4)(d) is amended to read:
(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.
9. The Comment to SCR 60.06(1) is amended to read:
COMMENT: This rule provision
derives from former SCR 60.05, which 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 former
SCR 60.04. It was felt that the appeal to the electorate by a sitting
judge for a nonjudicial office was inherently in conflict with his or
her duty to serve impartially all of the people.
This provision is among the matters to be considered by the
committee the court will appoint to conduct a study of judicial conduct
relating to judges' political and campaign activity and submit for the
court's consideration a comprehensive set of ethical rules in this area.
See, Note, supra.
10. The Comment to SCR 60.06(2) is amended to read:
COMMENT: As an individual, a judge is entitled to
his or her personal view on political questions and to rights and
opinions as a citizen. However, as a member of Wisconsin's nonpartisan
judiciary, a judge must avoid any conduct which associates him or her
with any political party. This rule does not preclude a judge from
attending a political meeting as a member of the public, but he or she
shall not attend as a participant.
This provision derives from former SCR 60.14 and is among the
matters to be considered by the committee the court will appoint to
conduct a study of judicial conduct relating to judges' political and
campaign activity and submit for the court's consideration a
comprehensive set of ethical rules in this area. See, Note,
supra.
11. The Comment to SCR 60.06(3) is amended to read:
COMMENT: As provided in SCR 60.07(2), SCR
60.06 does not apply to a judge serving on a part-time basis.
This provision derives from former SCR 60.15 and is among the matters
to be considered by the committee the court will appoint to conduct a
study of judicial conduct relating to judges' political and campaign
activity and submit for the court's consideration a comprehensive set of
ethical rules in this area. See, Note, supra.
12. SCR 60.06(4) is created to read:
(4) Solicitation or acceptance of campaign contributions. A judge or
candidate for judicial office shall not personally solicit or accept
campaign contributions.
COMMENT: This provision does not prohibit reasonable
financial contributions to a voluntary campaign committee in behalf of a
judicial candidate. The nonpartisan elective process as now constituted
is an expensive one, and until other means of conducting and financing
judicial elections are devised, this provision should be so
construed.
This provision and its Comment derive from former SCR 60.10 and 60.11
and is among the matters to be considered by the committee the court
will appoint to conduct a study of judicial conduct relating to judges'
political and campaign activity and submit for the court's consideration
a comprehensive set of ethical rules in this area. See, Note,
supra.
13. SCR 60.07(2) is amended to read:
(2) 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) and SCR 60.06.
IT IS FURTHER ORDERED that notice of these amendments 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 20th day of December, 1996.
By the court:
Marilyn L. Graves, Clerk
Publication of Court of Appeals Opinions
In the Matter of the Amendment of Rules of Appellate Procedure: Wis.
Stat. (Rule) 809.23(4) Requests for Publication of Court of Appeals
Opinions
Order 96-10
On July 17, 1996, the Court of Appeals of Wisconsin filed a petition
seeking the amendment of Wis. Stat. (Rule) 809.23(4), to provide for
requests to have a Court of Appeals opinion not recommended for
publication published in the official reports and to limit requests for
publication to opinions other than decisions by one court of appeals
judge and a per curiam opinion. In respect to per curiam opinions, the
amendment would permit a person to request that a per curiam opinion be
withdrawn, authored and recommended for publication and would establish
a time for that request to be made.
IT IS ORDERED that a public hearing on the petition shall be held in
the Supreme Court Room in the State Capitol, Madison, Wis., on March 18,
1997, 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.
IT IS FURTHER ORDERED that notice of the hearing be given by
publication of a copy of this order and of the petition in the official
state newspaper once each week for three consecutive weeks 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, Wis., this 13th day of November, 1996.
By the court:
Marilyn L. Graves, Clerk
Guardian ad Litem Education
In the Matter of the Amendment of Supreme Court Rules: (Proposed)
31.02(3), 31.065 and 31.07(6) - Guardian ad Litem Legal Education
Order 96-13
On Nov. 1, 1996, the Judicial Council of Wisconsin filed a petition
seeking the adoption of rules establishing continuing legal education
attendance requirements of lawyers who accept appointment as guardian ad
litem for a minor in a proceeding under Chapters 48, 767 or 938 of the
statutes. The petition also proposes that approval of continuing legal
education for credit in satisfaction of the requirement be done by the
Board of Bar Examiners.
IT IS ORDERED that a public hearing on the petition shall be held in
the Supreme Court Room in the State Capitol, Madison, Wis., on March 18,
1997, 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.
IT IS FURTHER ORDERED that notice of the hearing be given by a single
publication of a copy of this order and of the petition 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, Wis., this 13th day of November, 1996.
By the court:
Marilyn L. Graves, Clerk
Petition
Preamble: A guardian ad litem is appointed by the
court to protect the legal rights of children in proceedings under
Chapters 48, 767 or 938, Wis. Stats. "[T]he guardian ad litem's
overarching duty is to assist the court in its governmental function of
seeing to it that justice is done to those who are defenseless and who
are the objects of the special concern of government . . A guardian ad
litem must do the job competently and to the fullest extent reasonable
in a particular case." Waukesha County v. Tadych, 197 Wis. 2d 653, 659
(1996). Yet, despite their critical role in the protection of children's
legal rights, guardians ad litem representing minors in Wisconsin courts
are not currently required to have any special training.
Lawyers should have special training for these reasons: 1) Because a
child does not hire and cannot fire the guardian ad litem, there are no
market forces weeding out incompetents; 2) Children cannot speak for
themselves, which makes them especially vulnerable to inadequate
representation; 3) Because the guardian ad litem is court-appointed, the
State has a moral responsibility to ensure that the representation is
adequate; 4) Law schools generally do not offer courses that prepare
lawyers to deal with, represent, or advocate for children; and 5) The
guardian ad litem role is unique, requiring familiarity with many
disciplines including child development, psychology, sociology,
parenting and law.
The profession has an obligation to offer the type of training that
is necessary for a guardian ad litem to be effective and skilled. Most
lawyers interested in serving as guardians ad litem for minors will seek
this training voluntarily. However, for those who do not, a minimum
education requirement is necessary.
Therefore, the Judicial Council petitions the Supreme Court as
follows:
SECTION 1. SCR 31.02(3) is created to read:
SCR 31.02(3) On and after [the first day of the 24th month commencing
after adoption of this rule] a lawyer who accepts an appointment as a
guardian ad litem for a minor in a proceeding under chapters 48, 767 or
938 of the statutes shall also be subject to the continuing legal
education attendance requirements under SCR 31.065.
SECTION 2. SCR 31.065 is created to read:
SCR 31.065 Attendance requirements for guardians ad litem in
proceedings under chapters 48, 767 and 938 of the statutes. (1) On and
after [the first day of the 24th month commencing after adoption of this
rule] no lawyer may accept an appointment as a guardian ad litem for a
minor in a proceeding under chapters 48, 767 or 938 of the statutes
unless the lawyer meets one of the following continuing legal education
attendance requirements for courses approved under SCR 31.07(6);
(a) Six hours during the lawyer's current and immediate prior
reporting periods combined.
(b) Thirty hours at any time on or after [the first day of the 36th
month commencing prior to adoption of this rule]
(2) Students having successfully completed state law school courses
of instruction certified under SCR 31.07(6) shall, upon admission to the
bar, meet the requirements of this rule.
(3) Instructors for courses certified under SCR 31.07(6) shall be
allowed credit under SCR 31.05(3).
(4) In a specific case, a court may waive the requirement under this
rule only if the court makes specific findings in writing or on the
record that there are no attorneys available to serve as guardian ad
litem who have received the required certification and that the attorney
being appointed is qualified based upon the attorney's experience and
expertise in that type of proceeding.
SECTION 3. SCR 31.07(6) is created to read:
SCR 31.07(6) The board may approve continuing legal education for
credit under SCR 31.065 if it is designed to increase the attendee's
professional competence to act as a guardian ad litem for a minor in
proceedings under chapters 48, 767 or 938 of the statutes. The board
shall not approve any continuing legal education for credit under SCR
31.065 if it is not on the subject of the role and responsibilities of a
guardian ad litem for a minor or on the subject matter covered in
proceedings under chapters 48, 767 or 938 of the statutes or if the
continuing legal education activity occurred prior to [the first day of
the 36th month commencing prior to adoption of this rule].
COMMENTARY: The Board of Bar Examiners is the body
with the expertise to certify courses under this rule. It removes any
appearance that the State Bar of Wisconsin is favoring courses offered
by the State Bar for certification and assures the review of a neutral
body. If the Board of Bar Examiners cannot handle the increased
responsibilities that this rule would require, then the courses could be
submitted to the Guardian ad Litem Committee of the Family Law Section
and the Guardian ad Litem Committee of the Children and the Law Section
of the State Bar of Wisconsin.
Respectfully submitted on Nov. 1, 1996.
Judicial Council
By: James C. Alexander
Number, Form and Length of Brief and Appendices
In the Matter of the Amendment of Rules of Appellate Procedure: Wis.
Stat. (Rule) 809.19(8)1 - Number, Form and Length of Briefs and
Appendices
Order 97-01
The court, on its own motion, proposes to amend the rule, Wis. Stat.
(Rule) 809.19(8)1, to require that parties file 22 copies of briefs and
appendices in the Supreme Court, seven more than the number required by
the current rule. As proposed to be amended, Wis. Stat. (Rule)
809.19(8)1 would read:
1. Except as provided in s. 809.43, a person who files a brief or
appendix in the supreme court shall file 15 22 copies with the court, or
such other number as the court directs, and serve 3 copies on each
party.
IT IS ORDERED that a public hearing on the court's proposal to amend
Wis. Stat. (Rule) 809.19(8)1 shall be held in the Supreme Court Room in
the State Capitol, Madison, Wis., on March 18, 1997, 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.
IT IS FURTHER ORDERED that notice of the hearing be given by
publication of a copy of this order in the official state newspaper once
each week for three consecutive weeks 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, Wis., this 2nd day of January, 1997.
By the court:
Marilyn L. Graves, Clerk
