NOTE: Various references in this ethics opinion to portions of the Michigan Code of Judicial Conduct are no longer accurate due to amendments effective August 1, 2013. Click here to review language added to (which is underlined) and language stricken from (which is indicated by strikethrough) Canons 2, 4, 5, and 7.
April 20, 2001
A judge may not participate in a fundraiser commonly referred to as "Jail and Bail," "The Great American Lockup" or a "Lockup for Charity," where the primary involvement of the judge is to set an amount of money that constitutes a target amount for an individual to pay or try to raise as "bail."
Where the purpose of a judge's involvement is to determine the amount of money to be paid to a charitable organization by donors, such involvement constitutes a direct solicitation for the charity and is not permitted.
References: MCJC 5B(2), JI-3, OP-69.
A charitable organization may hold an annual fundraiser sometimes called a "Jail and Bail," The Great American Lockup" or "Lockup for Charity," whereby a charitable organization recruits volunteers to be "arrested" and held in order to call friends and associates who would pledge donations which must equal the bail amount set by a "judge." In some instances, the events surrounding this humorous type of charitable fundraiser are reported on local TV, radio and in newspapers and often become the subject of television news broadcasts.
Often, actual public officials and leading citizens are involved. A sheriff, police chief or prosecutor may prepare humorous charges against the "prisoner" and take the individuals into voluntary custody to serve as the subject of the "bail" setting. In some instances the voluntary prisoner is brought before a local judge who is to set a "bond" which is the amount of pledges or donations necessary for the person to be released. The involvement of a local judge is to engage in a conversation with the voluntary prisoner and determine the amount of bond. However, the local judge does not personally solicit the funds by contacting potential donors, since that is the "prisoner" duty. The Michigan Code of Judicial Conduct would be applicable. MCJC 5B states:
The scenario of this type of fundraising has been found to constitute a direct solicitation and give the appearance of the judicial office being used to give prominence and potential publicity to the proceedings. The proceedings themselves are, of course, taken in a humorous light, however the individuals brought before the judge, albeit voluntarily, are often citizens, public officials, or professionals, including lawyers who may have official dealings with the judge.
"A judge should not individually solicit funds for any educational, religious, or charitable, fraternal, or civic organization, or use or permit the use of the prestige of office for that purpose, but may be listed as an officer, director, or trustee of such an organization. A judge may, however, join a general appeal on behalf of an educational, religious, charitable, or fraternal organization, or speak on behalf of such organization."
"The Great American Lockup" was the subject of a prior Advisory Opinion where the issue was whether a judge might serve on the board of the American Cancer Society when soliciting the participation of community leaders to participate in the event gave raise to the appearance of using the position of the judge's office to obtain cooperation. JTC A/O 69.
A further analysis of this same basic concept of a judge's participation in solicitation of funds is found in JI-3 that stresses that a judge may not individually solicit funds for any educational, religious, charitable, fraternal or civic organization. A judge shall not use the prestige of the judicial office in the course of a solicitation.
Further, the participation of the judge is much more removed from the more neutral participation envisioned under MCJC 5B and its predecessor, MCJE 25, where the involvement of the judge in a general sense is by simply providing his or her name for a neutral listing on a charity board or general speaking on behalf of the charity. See also J-1.
The most significant prior interpretation of a judge's participation in charitable actives is found in J-1. Significantly, J-1 speaks to the acceptability of more benign use of a judge's name in charitable organization literature and provides that as long as the judge is not the sole name and that the judge's name is not linked directly with the solicitation, the activity is permitted. However, in contrast the situation presented here, a judge stands out as the sole individual who is setting a "bail" or "bond" amount for donations that would be personalized to the voluntary prisoner.
Particularly troublesome is the potential that lawyers, prosecutors and police officials may be caught up in the fundraising effort and be brought before the judge whom they may be actively appearing, or with whom they have an official relation.
A judge may not participate in a fundraiser commonly referred to as "Jail and Bail," "The Great American Lockup" or a "Lockup for Charity," where the primary involvement of the judge is to set an amount of money which constitutes a target amount for an individual to pay or try to raise as "bail." Where the purpose of the judge's involvement is to determine the amount of money to be paid to a charitable organization by donors, such involvement constitutes a direct solicitation for the charity and is not permitted.