Judges and The Code of Judicial Conduct

By John DiMotto

I am now back from a brief vacation that my wife, Judge Jean DiMotto, and I took to Brussels, Belgium. It was nice to get away and see a different part of the world. It was like a trip back in time. Very enjoyable and rewarding.

Now that I am back, I have decided to do a series on The Code of Judicial Conduct that governs both the "on the bench" and "off the bench" conduct of judges in Wisconsin. Every state has its own Code and provisions do vary from state to state. My focus will be on the Wisconsin Code since it governs my life 24/7.

My judicial code is found in Supreme Court Rule (SCR) Chapter 60. In the Preamble to the chapter, it sets forth the propositions that:

1) The judiciary which must interpret and apply the laws that govern people and it must do so in an independent, fair and competent manner.

2) The role of the judiciary is central to the concepts of justice and the rule of law.

3) Judges must individually and collectively respect and honor the judicial office as a public trust.

4) Judges are the arbiters of facts and law for the resolution of disputes.

5) Judges are a highly visible symbol of government under the rule of law.

In order to facilitate these propositions, the Code provisions provide:

1) Guidance to judges as to their behavior.

2) Govern the conduct of judges and are binding upon judges.

The ultimate purpose of the Code is to enhance public confidence in the integrity, independence and impartiality of the judiciary.

These are not mere platitudes to make people feel good. These are important propositions to ensure that it is the rule of law and not the vagaries of men/women which govern our lives.

The judiciary is the "Third Branch" of government. It is independent of the First and Second Branches -- the legislative and executive branches -- not an appendage of them. In order to remain so, the judiciary must be separate from politics and the political process. It must be an "uber-referee." As I explain to students who come through the courthouse, in some ways what judges do is analogous to what umpires and referees do in sporting events.

1) Referees and umpires do not "play" the game rather they enforce the rules of the game to ensure that the game is played fairly. Judges do this in the courtroom when they enforce the rules of evidence or procedure.

2) Referees and umpires make judgment calls as to whether "fouls" are committed or whether a pitch was a ball or a strike or whether a catch was made in or out of bounds or whether a basket was a two or three point shot. Judges similarly make judgment calls when they decide whether a question may or may not be asked or whether certain evidence will or will not be admissible.

3) Referees and umpires interpret whether player conduct did or did not violate a rule of the game. Judges interpret whether conduct did or did not violate a law or whether conduct did or did not violate a standard of care or whether conduct did or did not breach a contract.

In order for a judge to do his/her job, a judge must make rulings of law. However, the rulings must be within the context of the law or legal principle at issue. Judges interpret the law/principles as expressed by the legislature not as the judge would have done if he/she was in the legislature. Judicial decisions are to be made "without regard to persons" -- this means decisions are not to be based on who the litigants are but what the law dictates.

In the final analysis, judges must be independent and above the fray. It may sound like a simple proposition but it is not. I will address why this is the case in this series on "Judges and The Code of Judicial Conduct."