Tuesday, May 25, 2010

Judges and The Code of Judicial Conduct - Political Activity

By John DiMotto
The Code of Judicial Conduct in Wisconsin is designed to provide guidance to judges so they will "respect and honor the judicial office as a public trust and strive to enhance and maintain confidence in our legal system." (SCR 60 Preamble) When people come to court they expect that they will be treated fairly by the judge. They expect that their case will be judged and decided on its merits and not on outside influences, particularly political influences. In order to promote these precepts, the Code has provisions addressing political activity by judges.
SCR 60.06(2)(b)1 prohibits a judge from being a member of any political party.
SCR 60.06(2)(b)2 prohibits a judge from participating in the activities of a political party or candidate for partisan office.
SCR 60.06(2)(b)3 prohibits a judge from making or soliciting financial contributions for a political party or candidate.
SCR 60.06(2)(b)4 prohibits a judge from endorsing a political party's candidate or platform.
SCR 60.06(4) prohibits a judge from personally soliciting or accepting campaign contributions.
SCR 60.06(2)(d) and (e) allow a judge to attend a political party event as a member of the public and allow attend partisan political gatherings to promote his/her own candidacy.
SCR 60.06(4) allows a judge to establish a committee to solicit and accept lawful campaign contributions and the judge may serve on the committee although the judge must avoid direct involvement with the committee's fundraising efforts.
SCR 60.06(5) allows a judge to solicit or accept endorsements supporting his/her election.
These provisions were enacted to extract a judge from partisan politics; to put a judge above the fray; to assure the public and litigants that the facts and the law, not political influences and biases, will rule the day in court. However, these provisions do put limits on a judge's First Amendment right to free expression. Therein lies a problem for some judges. This "clash" between the Code and the First Amendment has resulted in litigation. In litigation, the above Code provisions has been forced to give way to the First Amendment.
In 2008, Milwaukee County Circuit Court Judge John Seifert commenced a lawsuit against the Executive Director and Members of the Wisconsin Judicial Commission to enjoin them from enforcing provisions of SCR 60.06 against him. In Seifert v. Alexander, he sought a Declaratory Judgment that the prohibitions against a judge being a member of a political party, against a judge speaking on behalf of a political party's candidate or platform and against a judge personally soliciting or accept campaign contributions were unconstitutional and that the Commission be enjoined from enforcing these rules. He relied heavily on the 2002 United States Supreme Court decision in Republican Party of Minnesota v. White as well as the subsequent 2005 Eighth Circuit Court of Appeals decision in that same case. He claimed that the above code provisions violated his right to free speech. The Commission defendants contended that the rules were necessary to keep judges from being improperly influenced by partisan considerations, to maintain public confidence in the Wisconsin judiciary and to prevent potential donors from feeling coerced into giving money. In a lengthy decision, Judge Barbara Crabb declared that the above rules [SCR 60.06(2)(b)1, 60.06(2)(b)4 and 60.06(4)] were unconstitutional because they violated the First Amendment and she enjoined the Commission defendants from enforcing the rules against Judge Seifert. The Commission defendants have appealed this decision to the Seventh Circuit Court of Appeals.
As a member of the Wisconsin judiciary for the past 20 years, I have been guided by the Code - particularly the provisions at issue in the Seifert v. Alexander case. While I cherish the First Amendment, I do not mind the restrictions that the Code imposes on me. I accept those restrictions because I believe that the public's perception of a judge's independence and impartiality is critical to the confidence the public has in the judiciary. I believe that if judges immerse themselves in partisan politics it will severely dilute their independence and the public's confidence in the judiciary; and without the public's confidence, the judiciary cannot be effective.


  1. I strongly agree with Judge DiMotto's analysis here. While there is an obvious conflict of interests, it seems to me that the balance clearly favors the public's interest in an impartial judiciary. For any judge who feels strongly about the need to actively engage in partisan politics, they certainly have the option to pursue alternative careers where their public partisan political activity has no bearing on their occupation.
    Mark Frankel
    Reserve Judge

  2. Ditto. Nor do I mind the restrictions that the code imposes. We can best continue the appearance of impartiality by avoiding any labels that would cause the public to perceive that we will decide one way or another on certain issues. Be careful what you ask for.