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.
May 16, 1990
A judge may not serve as a member of the board of directors of a charitable, nonprofit organization which is under the auspices of a political party.
References: MCJC 1, 2A, 2B, 5B, 7A(1)(a).
A judge asks whether it is proper to serve on the board of directors of a charitable fundraising foundation, to be established as a separate entity with tax-exempt status by the Democratic Party of a county in honor of a deceased political party leader. Although the judge would not sign any solicitation letters or participate in solicitation of funds, the judge's name would appear as a member of the board.
MCJC 1, 2A, and 2B state:
"1. An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining and enforcing and should himself observe high standards of conduct so that the integrity and independence of the judiciary may be preserved. A judge should always be aware that the judicial system is for the benefit of the litigant and the public, not the judiciary . . . .
"2A. Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. He must expect to be the subject of constant public scrutiny . . . .
"2B. A judge should . . . conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary."
We believe that serving on the board of a charitable foundation under the auspices of a political party has the potential of compromising not only the independence but also the integrity and impartiality of the judiciary.
As the foregoing MCJC provisions indicate, the judicial system is for the benefit of the public, which benefit is forfeited once the public suspects partisanship. While MCJC 5B provides wide latitude for public service by judges, it inferentially restricts such discretion by warning against participation in charitable organizations that adversely reflect upon the impartiality or that interefere with the performance of the judge's judicial duties.
Even if it is assumed that the organization is well-distanced from the political party, the mere fact that the foundation bears the name of a deceased leader of the party makes it more probable than not that the judge, as a member of the board, will be perceived by the public to endorse the brand or style of politics engaged in by the deceased political leader.
It is not difficult for the public to confuse serving on the board of a democratic party foundation with holding political office. MCJC 7A(1)(a) prohibits a judge from holding any office in a political party. Though serving on this particular board is not the same as holding political office, any appearance of impropriety or perception of impropriety by the public should be avoided. Further, a court of appeals judge is elected in a nonpartisan election and is nominated in nonpartisan primaries; it would undermine the intent of the law to separate court of appeals judges from political parties to allow the judge to serve on a party-connected board.
In sum, any accomplishments or misfortunes of the proposed charitable foundation accrue to the benefit or disadvantage of the county democratic party, and the national party in general. A judge should not be a party to such an endeavor. In light of this conclusion, the question of solicitation of funds does not arise.