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 26, 1993
A judge may participate in health education and social awareness activities such as AIDS prevention, and encourage other persons to support the same cause.
A judge should not wear on the judicial robe symbols indicating the judge's support or opposition to a particular political, social, or charitable/civic cause.
References: MCJC 2C, 4A, 5A; C-219, C-237; MCR 2.003(B); MCLA 333.5210, MCLA 333.5129.
A judge asks whether the wearing of an AIDS awareness ribbon on the judge's judicial robe violates ethics rules. The ribbon purportedly indicates that the wearer is taking part in a growing movement to increase awareness of AIDS and have empathy for the individuals living with the disease. The ribbon is not affiliated with any particular educational, religious, charitable, fraternal or civic organization and fund-raising activities are not involved. In the words of the inquirer:
"A red ribbon on a black robe sparks curiosity. Curiosity sparks questions. Questions prompt answers. Answers provide information. That information can result in the prevention of a disease that is predicted to touch the lives of every family in the world unless each of us does what he or she can to prevent it."
"AIDS" stands for "Acquired Immune Deficiency Syndrome," a disease that destroys the body's ability to ward off sickness. People who suffer from AIDS may become ill over and over again because their immune systems are too weak to resist other infections. In most cases the disease is fatal, however, it is not until the final stages that persons affected by the AIDS virus become obviously ill. At this time, there is no known medical cure to combat this deadly disease.
Michigan law requires judges and magistrates to provide persons accused of a sex or drug-related offense with information on HIV transmission and to recommend the accused seek more information from a personal physician or a local health department treating and counseling center. See MCLA 333.5129; MSA 14.15(5129). In Michigan, it is a felony for a person infected with AIDS to have sex with or engage in other activities that place another individual at risk without informing that individual that the person is infected with the disease. MCLA 333.5210.
The Michigan Code of Judicial Conduct encourages judicial officers to contribute toward the improvement of criminal and juvenile justice and to participate in quasi-judicial activities concerning the law. MCJC 4A. Judges are allowed to engage in avocational activities provided they do not interfere with or detract from the dignity of judicial office or the performance of judicial duties. MCJC 5A states:
"A.Avocational Activities: A judge may write, lecture, teach, speak, and consult on nonlegal subjects, appear before public nonlegal bodies, and engage in the arts, sports, and other social and recreational activities, if such avocational activities do not detract from the dignity of his office or interfere with the performance of his judicial duties."
Crime prevention education and associated awareness programs exist in many forms. Sometimes the needed communication is by speech or in writing. Information may also be conveyed by involvement in social activities or by symbolic expression, such as the wearing of a red ribbon.
Ethics opinions have frequently addressed the impact of a judge's personal opinions concerning social and political issues on the judge's performance of judicial duties. C-237 notes that because expression of a specific opinion on legal issues during a judicial election campaign may require recusal if the candidate is elected, a candidate should avoid identification with a partisan position. C-219 notes that a judicial candidate should not suggest a predisposition toward strict or lenient sentencing without regard to individual mitigating circumstances.
Wearing the AIDS ribbon would publicly identify the judge with the AIDS educational program. The wearing of a ribbon for this purpose on street clothes outside the courtroom neither detracts from the integrity and impartiality of office or gives the impression the judge is using the prestige of office to advance the business interests of the judge or others. See MCJC 2C.
The inquirer, however, wishes to wear the AIDS ribbon on the judicial robe. In this manner the judge's attitude toward the social issue is taken into the courtroom, and the prestige of the judicial function is used to initiate conversation about the issue during times when the judge is performing judicial functions. If a matter before the judge involved sexual conduct or drug abuse, a portion of the judge's personal philosophy concerning those issues is on display throughout the case, whether or not the case involves AIDS. The judge's ability to be impartial in such cases may be called into question. MCR 2.003(B).
Therefore, although a judge may participate in health education and social awareness activities such as AIDS prevention pursuant to MCJC 5, and encourage other persons to support the same cause, a judge should not wear on the judicial robe symbols indicating the judge's support or opposition to a particular political, social, or charitable/civic cause.