Kading, In re, 1
| Decision Date | 03 February 1976 |
| Docket Number | No. 1,J,No. 75--154,1,75--154 |
| Parties | In re Hon. Charles E. KADING, Judge of County Court, Branchefferson County. |
| Court | Wisconsin Supreme Court |
Bronson C. La Follette, Atty. Gen., Betty R. Brown, Sol. Gen., in support of the validity of Rule 17 of the Code of Judicial Ethics.
Richard L. Cates, John H. Bowers, Michael S. Weiden, Lawton & Cates, Madison, in support of the Hon. Charles E. Kading that Rule 17 of the Code of Judicial Ethics is unconstitutional.
WILKIE, Chief Justice (on motion for rehearing).
Sanctions available to the supreme court for violations of the Code of Judicial Ethics include reprimand, censure, or civil contempt. The Code of Judicial Ethics, as promulgated, specifically provides for reprimand or censure. 1 It is settled beyond any question in Wisconsin that all courts have an inherent power to hold in contempt those who disobey the court's lawful orders. 2 This power exists independently of statute for the fundamental reason that it 'is a necessary incident to the exercise of judicial power and is reasonably to be implied from the grant of such power.' 3 Of course, Wisconsin courts also possess, by virtue of statute, specific power of civil 4 and criminal 5 contempt. A violation with respect to the financial disclosure provisions of Rule 17, or of any of the other provisions of the Code of Judicial Ethics, is serious and this court must have the authority to enforce the provisions of the Code through civil contempt.
Violations of the Code of Judicial Ethics, if determined to be in contempt of the court, are civil rather than criminal contempt. The real character of a contempt of court is determined by the nature of the relief sought, 6 and in cases involving violations of the Code this court seeks to remedy the situation created by the violation and to enforce the collective private rights of the citizens of this state to impartial justice.
In this instance, if Charles E. Kading fails to comply with the provisions of Rule 17 for the year ending December 31, 1974, as mandated in these proceedings, he will be subject to reprimand and censure, but not civil contempt. The court, with the exception of the writer, concludes that his conduct is not contumacious and therefore will not resort to civil contempt in this instance.
The motion for rehearing is denied and Charles K. Kading is granted twenty days from the date of this order to file with the Judicial Commission the financial disclosure report as required for the year ending December 31, 1974.
The majority claims, the present case to be excepted, that it has the power to fine or imprison for civil contempt any circuit or county or municipal judge in this state who violates a rule in its Code of Judicial Ethics. These rules range from banning cameras in courtrooms 1 to requiring a judge to report the income and assets of his wife and children. 2
It is not to be denied that, by statute, every court of record and every judge of such court in this state possesses a definite, but limited, power to punish for civil contempt. 3 But such statute limits the power of courts to punish for civil contempt to misconduct '. . . by which the rights or remedies of a party in an action or proceeding pending or triable in such court . . . may be defeated, impaired, impeded or prejudiced . . ..' 4 Thus such statute relates and limits the application of punishment for civil contempt, not to violations of a judicial rule, but to actions or proceedings pending or triable in court. The writer would hold the power of civil contempt limited by the statute, and the situation here to be outside the limits of such statute.
However, the majority additionally claims that 'independently of statute,' all courts in this state '. . . have an inherent power to hold in contempt those who disobey the court's lawful orders.' The writer does not find in state or federal constitutions any such grant of an awesome and unlimited power of trial courts or appellate courts to fine or jail those judges who violate its rules. Instead, the writer finds this court as having applied sec. 295.01, Stats., and having recognized its limits as to impositions of penalties in civil contempt cases. In this very term of court, in a case where a trial court went beyond the limits of the civil contempt statute in imposing liquidated damages for violation of a court injunction, this court set aside the penalty imposed as not statutorily authorized. 5 If the statute controls impositions of civil contempt penalties by trial courts for violations of their orders, it ought control impositions of penalties by an appellate court for violation of its orders. What is sauce for one ought to be sauce for the other.
Moreover, when this court established the sanctions that were to be imposed for a violation of a rule in its judicial ethics code, it provided for only four possible penalties: (1) Removal from office; (2) suspension from office; (3) reprimand; and (4) censure. 6 As to the first two such sanctions, removal or suspension, this court gave the judicial commission only the power to make recommendations to this court. 7 As to the third and fourth of the possible sanctions, it decreed that such judicial commission could either reprimand or censure, but subject to review by this court. 8 It was these four sanctions, plus retirement for disability, 9 and only these four, that were made applicable to all appellate and trial judges in this state. 10
However, only two of the four sanctions were made immediately effective. As to the sanctions of removal or suspension from office, this court then made clear that: 'These sanctions require constitutional amendment.' 11 Thus, under the rules then promulgated, only the penalties of reprimand or censure are set forth as immediately effective and available as penalties for violation by a judge of a code rule. Unless a trial judge is to hold court in his prison cell, it is difficult to see how imprisonment for contempt is not an equivalent to suspension from office. If constitutional amendment is required to validate a suspension from office for a rule violation, it is submitted that constitutional a...
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State v. Holmes
...State v. Cannon, 199 Wis. 401, 402, 226 N.W. 385 (1929), quoted with approval in In re Kading, 70 Wis.2d 508, 517, 235 N.W.2d 409, 238 N.W.2d 63, 239 N.W.2d 297 Thus the constitution grants the supreme court power to adopt measures necessary for the due administration of justice in the stat......
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State v. Dowdy
...(1995), quoted with approval in State v. Henley, 2010 WI 97, ¶ 73, 328 Wis.2d 544, 787 N.W.2d 350. FN14. See, e.g., In re Kading, 70 Wis.2d 508, 517–18, 238 N.W.2d 63 (1976); State v. Cannon, 199 Wis. 401, 402, 226 N.W. 385 (1929). FN15. Friedrich, 192 Wis.2d at 16, 531 N.W.2d 32 (quoting S......
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...with means and instrumentalities, and limited only by the necessities of justice. In re Kading, 70 Wis.2d 508, 519-20, 235 N.W.2d 409, 238 N.W.2d 63, 239 N.W.2d 297 (1975); Reynolds, 11 Wis.2d at 564-65, 105 N.W.2d 876; In re Phelan, 225 Wis. 314, 320-21, 274 N.W. 411 (1937); Johnson, 103 W......
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