JI-139

October 21, 2013

SYLLABUS

A judge may serve as a member of an honorary committee or may join a general appeal on behalf of a charitable organization and may speak at or receive an award or other recognition in connection with an event of such an organization and a judge may allow his or her name or title to be used in advertising the judge's involvement in an event so long as the judge does not individually solicit funds. Allowing the use of the prestige of the judge's office does not create an appearance of impropriety.

A judge may not serve as an officer, director, trustee, or nonlegal advisor of a charitable or non-profit organization if the organization is regularly engaged in adversary proceedings before any court or is likely to be engaged in proceedings that would ordinarily come before the particular judge. Engaged in proceedings includes, but is not limited to, providing testimony or documentary evidence to the court or participating in case status conferences in certain types of cases on a regular basis.

Nor may a judge serve as an officer, director, trustee, or nonlegal advisor of a charitable or non-profit organization where the sole purpose of the charitable or non-profit organization is to raise money for court's own court-ordered programs.

References: MCJC 2, 2A, 2C, 4, 4C, 4D, 5; JI-66

TEXT

A request for opinion has been submitted asking whether judicial fundraising for a nonprofit or charitable organization or serving as a board member of a nonprofit or charitable organization that directly supports a problem-solving court constitutes the appearance of impropriety or conflicts with the Michigan Code of Judicial Conduct as recently amended.

BACKGROUND

The Michigan Supreme Court has amended the Code of Judicial Conduct (the Code), effective August 1, 2013. Among other changes to the Code, the amendments modified provisions in Canons 2, 4, and 5. The provisions of former Canon 4 addressing a judge's participation in activities related to the law, legal system and administration of justice and the provisions of former Canon 5 relating to a judge's participation in extra-judicial activities are now merged into and addressed in Canon 4. The changes to these Canons call into question the ongoing value of prior opinions addressing judicial participation in matters addressed in these Canons as a source of guidance for judges.

The particular question presented relates to problem-solving courts used to address specific problems associated with criminal violations and behavior, such as mental health courts, drug courts and the like, which began as pilot programs and have become permanent programs in some counties. Many of these courts are designed to address an underlying behavior of a defendant that often leads to criminal conduct by providing rehabilitative services designed to address that problem or condition so as to diminish the likelihood of recidivism.

Because in many counties the rehabilitative services are not funded by the county funding unit due to limited resources, the problem-solving court must rely upon various non-profit organizations to provide the necessary programs or funds to pay for those programs. In some instances, non-profit organizations have been created for the sole purpose of raising funds to benefit a court's programs related to the rehabilitative efforts. The question that has been presented relates to the extent to which a judge may ethically participate with such non-profit organization under the amended provisions of the Code of Judicial Conduct that became effective August 1, 2013.

ANALYSIS

The provisions of the Code of Judicial Conduct that are relevant to the question presented are found in Canon 2A, Canon 2C, Canon 4C, and Canon 4D as set forth below.

Canon 2. A Judge Should Avoid Impropriety and the Appearance of Impropriety in All Activities

A. Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.

. . .

C. A judge should not allow family, social, or other relationships to influence judicial conduct or judgment. A judge should not use the prestige of office to advance personal business interests or those of others, but participation in activities allowed in Canon 4 is not a violation of this principle.

Canon 4. A Judge May Engage in Extrajudicial Activities

As a judicial officer and person specially learned in the law, a judge is in a unique position to contribute to the improvement of the law, the legal system, and the administration of justice, including revision of substantive and procedural law and improvement of criminal and juvenile justice. To the extent that time permits, the judge is encouraged to do so, either independently or through a bar association, judicial conference, or other organization dedicated to the improvement of the law. A judge should regulate extrajudicial activities to minimize the risk of conflict with judicial duties.

A judge may engage in the following activities:

. . .

C. Civic and Charitable Activities. A judge may participate in civic and charitable activities that do not reflect adversely upon the judge's impartiality or interfere with the performance of judicial duties. A judge may serve and be listed as an officer, director, trustee, or nonlegal advisor of a bona fide educational, religious, charitable, fraternal, or civic organization. A judge should not serve if it is likely that the organization will be engaged in proceedings that would ordinarily come before the judge or will be regularly engaged in adversary proceedings in any court.

D. Fundraising Activities. A judge should not individually solicit funds for any educational, religious, charitable, fraternal, or civic organization or any organization or governmental agency devoted to the improvement of the law, the legal system, or the administration of justice or use or permit the use of the prestige of the office for that purpose. A judge may, however, serve as a member of an honorary committee or may join a general appeal on behalf of such an organization. A judge may speak at or receive an award or other recognition in connection with an event of such an organization. A judge may allow his or her name or title to be used in advertising the judge's involvement in an event so long as the judge does not individually solicit funds.

In order to understand the significance of the changes created by the amendments to the Code, it is important to look to the language of the Code prior to the amendment and compare it with the current language.

The principle set forth in Canon 2 that a judge should avoid impropriety and the appearance of impropriety in all activities is retained in the amended Code. Although the phrase "appearance of impropriety" is not specifically defined, various provisions identify what a judge should avoid doing because it may create an appearance of impropriety and new language identifies what a judge may do that would not amount to an appearance of impropriety. Importantly, Canon 2C now contains an exception to the provision that "a judge should not use the prestige of office to advance personal business interests or those of others" by adding the language "but participation in activities allowed in Canon 4 is not a violation of this principle" (emphasis added). Thus a judge may use the prestige of his or her office while participating in activities allowed in Canon 4 and doing so does not create an appearance of impropriety.

Canon 4D as amended addresses a judge's involvement in fundraising activities, maintaining a provision formerly found in Canon 5B(2) that states, "a judge should not individually solicit funds for any educational, religious, charitable, fraternal, or civic organization or any organization or governmental agency devoted to the improvement of the law, the legal system, or the administration of justice or use or permit the use of the prestige of office for that purpose" (emphasis added). Therefore, even though Canon 2C indicates that it does not create an appearance of impropriety for a judge to use the prestige of office while engaging in activities permitted in Canon 4, Canon 4 maintains a prohibition against the use by a judge of the prestige of office except as specifically permitted.

Canon 4D provides specifically what a judge may do: "A judge may, however, serve as a member of an honorary committee or may join a general appeal on behalf of such an organization. A judge may speak at or receive an award or other recognition in connection with an event of such an organization. A judge may allow his or her name or title to be used in advertising the judge's involvement in an event so long as the judge does not individually solicit funds." The activities listed are, therefore, specifically permitted regardless of whether participation in them involves the use of the prestige of the office of the judge for that purpose and participating in these activities does not create an appearance of impropriety under Canon 2.

Canon 4C as amended retains much of the language from the former Canon 5B, including that "a judge may participate in civic and charitable activities that do not reflect adversely upon the judge's impartiality or interfere with the performance of judicial duties". With this qualifier in mind, the Canon proceeds to identify what a judge may do. "A judge may serve and be listed as an officer, director, trustee, or nonlegal advisor of a bona fide educational, religious, charitable, fraternal, or civic organization"; however, "a judge should not serve if it is likely that the organization will be engaged in proceedings that would ordinarily come before the judge or will be regularly engaged in adversary proceedings in any court". The underlined wording, which has been added by the amendment, creates an important distinction from the former provision, permitting a judge's name to be identified with the organization and essentially advertised as an officer, director, trustee or nonlegal advisor. Because of its placement in Canon 4, a judge's use of the prestige of the office to the benefit of the organization in this manner does not create an appearance of impropriety under Canon 2, so long as engaging in these activities does not reflect adversely upon the judge's impartiality or interfere with the performance of judicial duties and so long as it is not likely that the organization will regularly appear before the judge or be regularly engaged in adversary proceedings in any court.

There is a distinction between an organization "engaged in proceedings that would ordinarily come before the judge" and an organization "engaged in adversary proceedings in any court" because the language "engaged in proceedings" is broader than the language "engaged in adversary proceedings." The latter is indicative of being involved as a party in litigation whereas the former can involve something other than being a party litigant such as being a witness or providing information to the court that the judge will use in making decisions in cases before the court. If the organization is regularly engaged in adversary proceedings before any court, the judge should not serve as an officer, director, trustee, or nonlegal advisor. The judge should also not serve as an officer, director, trustee, or nonlegal advisor if it is likely that the organization will be engaged in proceedings that would ordinarily come before the particular judge. Thus, for example, if a non-profit or charitable agency is likely to provide testimony or documentary evidence to the court or to participate in case status conferences in certain types of cases on a regular basis, then the judge should not serve as an officer, director, trustee, or nonlegal advisor for that organization.

The Code of Judicial Conduct must be read as a whole and although Canon 4 would (with some restrictions as noted) allow a judge to participate as an officer, director, trustee or nonlegal advisor, if doing so in a particular instance violates the principles of Canon 2, the judge may not then participate in that particular instance.

In circumstances in which the non-profit or charitable organization exists solely for the purpose of raising money for court ordered programs, the close nexus between the court and the non-profit or charitable organization is such that for a judge to serve as an officer, director, trustee or nonlegal advisor to such organization would by that fact alone create an appearance of impropriety in violation of Canon 2. This would be particularly true if the court were to require the party being ordered to participate in a program funded by this organization to pay a fee in order to participate in the program. This is different than allowing the use of the prestige of office in participating in activities permitted in Canon 4 and allowed under Canon 2 C.

Moreover, inasmuch as Canon 4C limits a judge's role as an advisor to a charitable organization to that of a nonlegal advisor, a judge should not perform legal work in connection with the creation or ongoing operation of a charitable organization, including organizations that are created for the specific purpose of raising funds for problem-solving court programs.

CONCLUSION

A judge may serve as a member of an honorary committee or may join a general appeal on behalf of a charitable organization and may speak at or receive an award or other recognition in connection with an event of such an organization and a judge may allow his or her name or title to be used in advertising the judge's involvement in an event so long as the judge does not individually solicit funds. Allowing the use of the prestige of the judge's office does not create an appearance of impropriety as proscribed by Canon 2C.

Although as above indicated a judge may use the prestige of office for the activities specified in Canon 4 without the same being a violation of Canon 2, the appearance of impropriety standard of Canon 2 still applies to a judge's participation in other extra-judicial activities under Canon 4. Therefore, a judge may not serve as an officer, director, trustee, or nonlegal advisor of a charitable or non-profit organization if the organization is regularly engaged in adversary proceedings before any court or is likely to be engaged in proceedings that would ordinarily come before the particular judge, as to do so would be a violation of Canon 4C.1 It is the opinion of this Committee that engaged in proceedings includes, but is not limited to, providing testimony or documentary evidence to the court or participating in case status conferences in certain types of cases on a regular basis.

Nor may a judge serve as an officer, director, trustee, or nonlegal advisor of a charitable or non-profit organization where the sole purpose of the charitable or non-profit organization is to raise money for court's own court-ordered programs. To do so would be a violation of Canon 2 A and C as serving in the capacity stated is more than merely allowing the use of the prestige of office permitted under this provision. A judge's involvement in this capacity with such a charitable or non-profit organization may create an appearance that the judge has a vested interest in requiring parties appearing before the specialty court to participate in programs run by a non-profit or charitable organization of which the judge is an officer, director, trustee or nonlegal advisor—particularly if the court were to order the party to pay a fee to that entity as part of participating in such program.

1 This opinion supersedes Informal Opinion JI-66 to the extent that the two may be inconsistent.