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.
March 10, 1992
A sentencing judge may not give offenders the option of performing a designated number of hours of community service work or making a monetary contribution to a charity designated by the judge.
References: MCJC 2C, 3A, 5B(2); J-1; JI-9, JI-33; In re Merritt, 431 Mich 1211 (1988).
In addition to traditional penalties of jail time, fines and costs, a judge of a multiple judge district court gives offenders the option of either performing a designated number of hours of community service work or making a cash contribution to a charity designated by the judge. Each participating judge randomly selects charities to be included in the program; there is no written policy identifying criteria for charities to become eligible to receive funds. The number of organizations vary from judge to judge, there is no independent verification of whether a designated charity is a qualified tax exempt organization, and it is unknown whether a judge is personally affiliated with the designated charity.
The sum of money paid by the offender in lieu of performing community service work is set by the sentencing judge. One participating judge sets the amount of the donation at $5.00 per hour. Another participating judge uses the offender's actual hourly wage rate. Payments may be made over time, if requested. All donations are paid into the court clerk's office and deposited into a county "restitution" account. Disbursements are made randomly each calendar quarter to the charities selected by the sentencing judges. At a sentencing judge's direction, the checks are sent to the charities with a cover letter from the sentencing judge describing the program and fund distribution.
The issue presented is whether or not the sentencing practice utilized by the district court judges violates ethics rules.
MCJC 5B is relevant and states:
"B.Civic and Charitable Activities: A judge may participate in civic and charitable activities that do not reflect adversely upon his impartiality or interfere with the performance of his judicial duties. A judge may serve as an officer, director, trustee, or non-legal advisor of a bona fide educational, religious, charitable, fraternal, or civic organization, subject to the following limitations:
"(1) A judge should not serve if it is likely that the organization will be engaged in proceedings that would ordinarily come before him or will be regularly engaged in adversary proceedings in any court.
"(2) A judge should not individually solicit funds for any educational, religious, charitable, fraternal, or civic organization, or use or permit the use of the prestige of his office for that purpose, but he 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."
This rule clearly says that a judge may not personally solicit funds for any civic/charitable organization, nor use the prestige of judicial office for the private interests of the organization or solicitation purposes. See also MCJC 2C.
In previous opinions the Committee has held that not all judicial activities associated with fund-raising are proscribed. Short of solicitation or permitting the judge's name to be used in solicitations, there is a realm of activity in which the judge may participate in the charitable/civic life of the community. For example, a judge may attend a testimonial dinner held in the judge's honor by a charitable or civic organization where the proceeds of the dinner are donated to a charitable or civic cause. See JI-9. In JI-33, the Committee ruled that an organization of judges may retain a non-judge executive director to solicit funds for the organizations' charitable and educational activities. Judges are permitted to participate in a walk-a-thon, telethon or other charitable causes so long as the judge does not personally solicit contributions, sponsors or other participants and the judge does not allow others to use the prestige of the judicial office to coerce donations. See J-1.
Underlying the prohibition against judicial solicitation is the notion that it is not ordinarily possible to solicit without raising the suspicion that the judge is using the power and prestige of judicial office to persuade or coerce others to contribute. No matter how well intentioned, the work of solicitation for charitable purposes is better left to persons other than those who occupy the bench. The rule is not limited to solicitation for charity but applies equally to civil, ecclesiastical and other philanthropic enterprises.
If judges are forbidden to solicit for charity, clearly judges cannot direct contributions by requesting or requiring offenders to donate contributions in lieu of fine or jail time to charities designated by the judge. Just because the option of making cash contributions to the court's charity in lieu of performing a certain number of hours of community service work is in addition to the more traditional sentences of time and fine does not make the sentencing practice any more acceptable. The sentencing judge is left open to the accusation that a particular community service alternative is intentionally more burdensome than required in order to encourage monetary contributions to the judge's charity. The judicial imposition of dollars for hours also discriminates in favor of those more affluent offenders who have the means to buy out of community service work.
We further note that MCJC 3A(1) provides a judge should be faithful to the law in performing adjudicative responsibilities. MCJC 3A(9) states:
"A judge should adopt the usual and accepted methods of doing justice; avoid the imposition of humiliating acts or discipline, not authorized by law in sentencing and endeavor to conform to a reasonable standard of punishment and not seek popularity or publicity either by exceptional severity or undue leniency."
We are unable to find any authority in law which allows the sentencing practices described.
In In re Merritt, 431 Mich 1211 (1988), a judge opened a checking account denominated as the "HELP Fund" account over which the judge had signatory power. The Fund had for its original purpose the assistance of indigent drug and alcohol abusers. The funds in the account came from a variety of sources, including fines imposed by the judge against attorneys for late filings, tardy appearances and failure to appear on court dates. Citing to the Michigan Constitution 1963, art 6, Sec 30, MCR 9.104(4), and MCJC 1, 2A and 3A(9), the Court found that the judge's conduct, whether well-intentioned or not, gave the appearance of using the power of judicial office to solicit moneys, and the conduct constitutes misconduct in office clearly prejudicial to the administration of justice. The Court ordered a public censure of the judge.