Judges and The Code of Judicial Conduct - Propriety in All Activities

By John DiMotto

In everything that a judge does, he/she is subject to all of the provisions of the Judicial Code. It does not matter if it is in court or out of court, a judge is always subject to public and judicial commission scrutiny.

SCR 60.03 sets forth the general principle that "A judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities." This is a broad charter that every judge must regard at all times. In SCR 60.03(1), it states: "A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." It cannot be stated with more clarity -- a judge must accept restrictions on his/her conduct. This includes both the professional and personal conduct of a judge. If a judge is with a group of people who decide to get "wild and crazy", the judge must back off and not participate.

So, how far must this provision be taken? Is it limited to violations of criminal law or municipal law or does it encompass more? In the comments, it is made clear that actual improprieties include violations of all law, all court rules or other specific provisions of Chapter SCR 60. In terms of a test for the appearance of impropriety, the comments set forth that it is whether the conduct would create in reasonable minds a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired.

The best, practical tests to apply to what a judge should or should not do are twofold. The first test is the "smell test." If it doesn't smell right, don't do it. The second test is the "Headline" test. In other words, would you want the conduct to be the top headline in your local newspaper. If you would not feel comfortable reading about the conduct, it would be wise to avoid the conduct.

Having been on the bench for almost twenty years, I do not find this provision to be onerous. I do not find that it deprives me of any fundamental freedoms enjoyed by all other people. It is a reasonable conduct standard. A judge should never engage in conduct that will demean the judge or the office. Respect for the office and confidence in the officer is critical to the effective operation of the judiciary and the delivery of justice.