Kading, In re

• Decision Date: 25 November 1975
• Docket Number: No. 75--154,No. 1,J,1,75--154
• Citation: 235 N.W.2d 409,70 Wis.2d 508
• Parties: In re Hon. Charles E. KADING, Judge of County Court, Branchefferson County, Wisconsin.
• Court: Wisconsin Supreme Court

Page 409

235 N.W.2d 409

70 Wis.2d 508

In re Hon. Charles E. KADING, Judge of County Court, Branch No. 1, Jefferson County, Wisconsin.

No. 75--154.

Supreme Court of Wisconsin.

Nov. 25, 1975.

Rehearing Denied Feb. 3, 1976.

[70 Wis.2d 513] Bronson C. LaFollette, Atty. Gen., Betty R. Brown, Sol. Gen., Madison, in support of the validity of Rule 17 of the Code of Judicial Ethics.

Richard L. Cates, John H. Bowers, Michael S. Weiden of Lawton & Cates, Madison, in support of the Hon. Charles E WILKIE, Chief Justice.

Kading the Rule 17 of the Code of Judicial Ethics is unconstitutional.

The matter before us concerns the validity of Rule 17 of the Judicial Code of Ethics which this court adopted on June 28, 1974, and which requires an annual financial report listing assets and liabilities of each state judge, owned by the judge, by his spouse, or by his legal dependents. Judge Kading filed his financial report (for assets and liabilities as of December 31, 1974) on March 5th, in advance of the March 15, 1975, deadline. All items were completed, with the exception of Item 10, which called for disclosure of assets. At Item 10 Judge Kading wrote the following words:

'Sorry. I decline to furnish this information at this time. At such time as any case is assigned to me in which I might conceivably be prejudiced because of any asset owned by myself, wife, or any relative, dependent or otherwise, the situation will be fully disclosed to the Administrator of Courts.'

On March 25, 1975, the supreme court directed the Judicial Commission to investigate Judge Kading's failure to comply with Rule 17 and to take action on any violation it might find.

Commission Chairman Francis J. Wilcox informed Judge Kading by letter of April 24, 1975, that the report as returned constituted a violation of Rule 17. Chairman Wilcox also stated that the Commission proposed to report this violation to the supreme court and to recommend appropriate discipline, but that before this was done, Judge Kading would be granted a hearing if he desired. On May 9, 1975, Judge Kading replied by letter to the executive secretary of the Commission that the reason he had failed to comply was that the asset-disclosure requirement was, in his opinion, unconstitutional on a number of specific grounds. Judge Kading also rejected the opportunity for a hearing.

On June 11, 1975, the Judicial Commission made its formal determination in this matter. It found that Judge Kading had not filed a complete financial report, and concluded that this was a violation of Rule 17. The Commission recommended that the supreme court take whatever appropriate action would insure Judge Kading's compliance with Rule 17. The supreme court, on June 16, 1975, ordered Judge Kading to comply with Rule 17 on or before June 27, 1975, or show cause why he should not be held in contempt of the supreme court and why other appropriate action should not be taken by the court. By letter, dated June 19, 1975, Judge Kading answered that he still refused to comply because, in his view, Rule 17 was unconstitutional. On June 24, 1975, the supreme court ordered that a supreme court hearing be held on September 2, 1975, on the question of the constitutionality of Rule 17, and on the question of which sanctions were appropriate for violation of Rule 17.

The following issues are raised in this original proceeding:

1. Did this court have the power to adopt and enforce the Code of Judicial Ethics in 1967, and the 1974 amendment, Rule 17?

2. Is Rule 17, which provides for mandatory disclosure of assets, an unconstitutionally overbroad intrusion into the private economic affairs of judges?

3. Is Rule 17 invalid as a legislative act?

4. Does Rule 17 establish a prohibited additional qualification for office?

5. Is Rule 17 a fundamentally unfair deprivation of due process?

We hold that the court had authority to adopt the Code of Judicial Ethics and Rule 17 of that code; that Rule 17 is valid in all respects as against all of the challenges made by Judge Kading; that this court has the authority to enforce Rule 17. We order Judge Kading to comply with the provisions of Rule 17 and reserve jurisdiction on this entire proceeding, pending that compliance.

AUTHORITY TO ADOPT AND ENFORCE CODE

The Code of Judicial Ethics was adopted on November 14, 1967, ¹ after (1) nearly two years of careful study by a special committee created by this court to study the question of whether this court should adopt such a code and to recommend provisions of the code; (2) unanimous recommendation by the study committee consisting of six trial judges and three attorneys both that this court has authority to adopt a code of ethics and proposing a detailed Code of Judicial Ethics; and (3) over one year of study of these reports by this court with a public hearing on September 12, 1967. In a unanimous order entered by the court, in which the code was promulgated, ² we declared:

'We hold this court has an inherent and an implied power as the supreme court, in the interest of the administration of justice, to formulate and establish the Code of Judicial Ethics accompanying this opinion. It governs judicial acts of a judge in his official capacity and certain personal conduct which interferes or appears to interfere with the proper performance of his judicial conduct. This power, inherent in the supremacy of the court and implied from its expressed constitutional grants of supervisory power, embraces all members of the judiciary including members of this court not only because they are lawyers but also because they are judicial officers in a court system constituting the judicial branch of the state government with a solemn duty to perform their judicial duties well.' ³

Effective January 1, 1972, a Judicial Commission was created by the court to enforce the code. ⁴ Certain rules of procedure for the Commission also became effective on that date. ⁵ More detailed Rules of Procedure for the Commission were later adopted by this court, effective January 1, 1973. ⁶ The code was amended by order of this court on June 28, 1974, in order to add Rule 17. ⁷

Judge Kading challenges this court's authority to adopt the original 1967 Code of Judicial Ethics and the additional provisions of Rule 17. We reject this attack on the fundamental authority of this court. Both the adoption of the code and the later adoption of Rule 17 are actions of this court performed under its inherent power to function as the Supreme Court and also performed in carrying out the function of superintending control as expressly set forth in art. VII, sec. 3, of the Wisconsin Constitution, as follows:

'The supreme court, except in cases otherwise provided in this constitution, shall have appellate jurisdiction only, which shall be coextensive with the state; but in no case removed to the supreme court shall a trial by jury be allowed. The supreme court shall have a general superintending control over all inferior courts; it shall have power to issue writs of habeas corpus, mandamus, injunction, quo warranto, certiorari, and other original and remedial writs, and to hear and determine the same.'

Inherent judicial power has been explained by this court in the following terms:

'. . . when the people by means of the Constitution established courts, they became endowed with all judicial powers essential to carry out the judicial functions delegated to them. . . . But the Constitution makes no attempt to catalogue the powers granted. . . . These powers are known as incidental In another case ⁹ this court amplified its description of this inherent judicial power as follows:

implied, or inherent powers, all of which terms are used to describe those powers which must necessarily be used by the various departments of government, in order that they may efficiently perform the functions imposed upon them by the people.' ⁸

'. . . The Constitution does not speak of the powers of courts. It does speak of their jurisdiction, but not of their powers. In the same manner the Constitution speaks of trial by jury, but it does not attempt to define the term 'jury.' It is settled that the trial by jury contemplated by the Constitution was the trial by jury known to the common law. Malinowski v. Moss, 196 Wis. 292, 220 N.W. 197. So when the term 'court' is used in the Constitution it is plain that the framers had in mind that governmental institution known to the common law possessing powers characterizing it as a court and distinguishing it from all other institutions. This power has been referred to by all legal scholars and writers as the inherent power of courts. . . . No one entertains the thought, whether it be called inherent or implied, that it is a power which transcends the Constitution. It is a power which may be taken away by the Constitution, just as all courts may be abolished by the Constitution. No mere creature of the people can rise above the people in importance, dignity, or power. The statement in the opinion that it was a power that existed independent of the Constitution merely meant that it was a power which inhered in the courts established by the Constitution and existed by reason of their creation, independent of any affirmative power expressly conferred by the Constitution.'

The function of the judiciary is the administration of justice, and this court, as the supreme court within a statewide system of courts, has an inherent power to adopt those statewide measures which are absolutely essential to the due administration of justice in the state.

The Code of Judicial Ethics is one such measure. One of its purposes is to eliminate the possibility that conflicts of interest will interfere with the fair and impartial administration of justice. The code primarily regulates judicial acts of a judge in his official capacity, and no one can claim that such official acts do not relate to the due administration of justice in the state. The code also...