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 23, 1994
A judge may participate in a broad range of fundraising activities on behalf of bona fide charitable/civic organizations, but only to the extent that the fund raising activities do not involve direct, individual solicitation on the part of the judge. Further, such activities may not use the judge's name or position as a judge to encourage, invite, solicit or otherwise engage in fund raising activities.
References: MCJC 5A, 5B(2); JI-3, JI-33, JI-68; CI-641; JTC A/O 22, JTC A/O 54, JTC A/O 69, JTC A/O 70, JTC A/O 82.
An opinion has been requested of the Committee which addresses the propriety of a judge participating in a radiothon for the National Association for the Advancement of Colored People (NAACP). The NAACP proposes that the judge serve as a "celebrity guest" on the show to urge listeners to join the organization and explain why the judge is a member of the organization and why it is important to join. The "celebrity" designation stems from the individual's position as a judge.
MCJC 5A states:
"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 the office or interfere with the performance of judicial duties."
MCJC 5B(2) prohibits a judge or other judicial officer from individually soliciting funds for any educational, religious, charitable, fraternal or civic organization and from permitting the use of the prestige of the judge's office for that purpose. Emphasis added. The rule goes on to indicate that a judge may be listed as officer, director, or trustee of such an organization and also may join a general appeal on behalf of an educational, religious, charitable or fraternal organization, or speak on behalf of such organization. Clearly, while judges have been encouraged to engage in charitable endeavors, such participation must occur only within the confines of MCJC 5B(2).
In J-1, the Committee articulated the criteria to be observed in making the determination as to whether participation is appropriate stating:
"A judge may not personally solicit funds for an educational, religious, fraternal or civic/charitable organization or cause. Speeches, broadcasts, or other communications where the judge asks others to contribute would therefore be improper. This would apply whether or not the judge is identified by judicial title.
"A judge may be a member of an educational, religious, fraternal or civic/charitable, fundraising committee as long as the judge does not individually solicit money, CI-641. MCJC 5B permits a judge to serve as director or trustee of charitable or civic organizations. It follows that the Canon permits a judge to be identified by name and judicial office on a letterhead, in circulated literature or in any other communications disseminated by the organization of which the judge is a member. There is no prohibition against the organization circulating fund-raising letters on such letterhead, provided the judge is not the sole signator of the letter, CI-641.
"MCJC 5B(2) does allow a judge's participation in appeals on behalf of educational, religious, fraternal or civic/charitable organizations. Thus, if a board or committee sends a mailing to a variety of people who are known to support the organization, the presence of the judge's name on that letterhead or as one of several signators would not be improper, CI-641.
"MCJC 5A allows a judge generally to write, lecture, teach, speak and consult on nonlegal subjects, appear before public nonlegal bodies and engage in the arts, sports or other social and recreational activities, as long as the guidelines are not violated. Therefore, a judge is allowed to participate in a walk-a-thon, softball game, etc., or other educational, religious, fraternal or civic/charitable causes as long as the judge does not personally solicit contributions, does not individually solicit for backers or sponsors of other participants, and does not allow others to use the prestige of the judge's office to coerce solicitations on the judges behalf.
"A judge may participate and be listed in promotional materials as a participant in educational religious, fraternal or civic/charitable activities, as long as the participation does not involve the judge individually soliciting funds. A judge may host a telethon, for example, where a number of people phone in contributions in support of the organization or cause, but the judge should not act as the auctioneer, CI-641."
Thus, when considering whether to participate in such activities and assuming an interest in the particular organization, the judge must decide whether the appeal involves a personal solicitation, and/or whether the anticipated role of the judge would either intentionally or unintentionally use the judge's prestige and/or position as judge to encourage membership or contribution. If either occurs, then the judge must decline participation.
In JI-3 the Committee opined that a judge may not participate by going "door-to-door" or "on the street" as part of the sale of items, products or gaining contributions, where the primary purpose is to solicit funds for charitable or philanthropic organizations. JI-3 goes on to state that while the Committee has consistently held that fund-raising for charitable organizations is not only "laudable" and should be encouraged to the extent that it is not clearly prohibited by the Michigan Code of Judicial Conduct, every reference to person-to-person solicitation of funds rather than a "general appeal" has been found to be improper. JTC A/O 54, JTC A/O 70; CI-641. Consistent with JI-3 is JTC A/O 69 which found that the event commonly called the "Great American Lockup" was found to give the appearance of using the power and prestige of judicial office and was seen to be an individual solicitation and JTC A/O 22 which determined that participation in an Easter Seals telethon is not a violation of the Michigan Code of Judicial Conduct so long as the solicitation is not an individual one. JI-33 holds that judges who are members of an organization of judges, administrative law judges and magistrates cannot individually solicit funds for charitable or educational organizations although such organizations may generally solicit contributions and may employ a non-judicial individual such as an executive director to solicit contributions. JI-68 states that a judge may participate in health education and social awareness activities such as AIDS prevention, and encourage other persons to support the same cause, but the opinion clearly indicates that a judge should not wear on the juridical robe, symbols indicating the judge's support or opposition to a particular political, social, or charitable/civic cause.
Solicitation by means of a broadcast media (television and radio appearances) such as the Easter Seals telethon discussed in JTC A/O 22 which is impersonal and does not draw attention to an individual judge or involve the use of power and prestige of judicial office to persuade others to contribute to particular enterprises, is not forbidden by MCJC 5B. For example, a judge may serve as a telephone operator for a fund raising telethon on behalf of a charitable organization according to JTC A/O 82. As long as the judge does not make any actual solicitation of funds and limits the role to answering the telephone and recording the amount of pledges, and occasionally identifying donors during the broadcast, participation is permissible.
It appears that the proposed activity in this instance violates MCJC 5B in two respects. It anticipates the judge pre-recording a public service announcement to be broadcast on the program urging the public to join the organization and/or agreeing to be interviewed about why the judge is a member and why it is important to join. Such activities, assuming they identify the individual, amount to personal solicitation. Moreover, the very thrust of the proposed participation is to use the judge's prestige and position as a judge to encourage contributions. The judge would be a "celebrity guest" solely because of the position as judge. The implication is that people should join and/or contribute because a person as important as a judge or this judge is a member and wants them to do so.
Therefore, although a judge may participate in fundraising activities that include general appeals and do not specifically focus on the judge's position as a judge, participation by a judge in a radiothon which identifies the judge by name and position, as a celebrity guest who then speaks, either in a pre-recorded announcement or in an interview, to encourage others to join the organization or contribute to it, is precluded by MCJC 5B(2).