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.
June 18, 1996
A judge may not sentence offenders to community service work to compile statistics on the number of cases handled in the court by candidates for a vacancy on the court.
References: MCJC 2C, 3, 3A(9), 4, 5B(2), 5C(7); JI-48, JI-55, JI-64, JI-104.
An opinion has been requested of the Committee which addresses the propriety of a judge ordering offenders assigned to community service work to compile statistics on the number of cases handled in the court over the past twenty years by each of the five candidates for a vacancy on the court. The offenders would report to and be supervised by a staff probation officer.
Several provisions of the Michigan Code of Judicial Conduct relate to this inquiry. MCJC 2C forbids a judge from using the prestige of judicial office to advance the business interests of the judge or others. The introductory clause of MCJC 3 states that judicial duties include all the duties of office prescribed by law. MCJC 3A(9) requires a judge to adopt the usual and accepted methods of doing justice, and to avoid the imposition of discipline not authorized by law in sentencing. MCJC 5C(7) states that information acquired by a judge in a judicial capacity should not be used or disclosed for any other purpose not related to judicial duties.
Information about the number of cases handled in the court by various lawyers is information acquired by the judge in the judge's judicial capacity. The judge is prohibited from using or disclosing that information for "any other purpose not related to judicial duties." In JI-104 the Committee concluded that a judge may not use jury records for the judge's personal election mailings. In the current inquiry, the judge who seeks to compile the information is not a candidate for the judicial vacancy, but is proposing the project as a voter information service. The purpose for which the judge proposes to use the information is one personally selected by the judge.
Opinions JI-48, JI-55 and JI-64 address sentencing practices. Of import in all those opinions was that the judge, through sentencing practices, gave the appearance of using the power of judicial office to solicit moneys, to favor a charity of the judge over other charities, or to favor a particular political agenda of the judge. Those sentencing practices were found to be ethically objectionable.
MCJC 4 encourages judges to engage in activities which "improve the law, the legal system and the administration of justice." The issue here is whether the proposed project actually accomplishes that laudable objective and even if it does, do the negative implications outweigh the positive effect? Initially, judges may not generally utilize their positions to solicit funds for or generally advance their own privately supported charities. MCJC 5B(2).
The sentencing proposal in this inquiry is not specifically authorized by law as contemplated by MCJC 3A(9), nor is there general acceptance of the proposition that voter education on judicial candidates is a "judicial duty prescribed by law" under MCJC 3. There is some questions as to whether the objective of voter education is necessarily served by simply providing such statistics to the public. The proposal then advances more of a personal belief of the judge that such information should be helpful to those voting in the election to fill the vacancy. While there is no issue of soliciting money for this "public service" the utilization of offender time could be construed as a donation "in kind" which would run afoul of MCJC 5B(2).
Moreover, the purpose of supplying such information could be misconstrued quite easily. For example, is the purpose to demonstrate the relative lack or breadth of experience of the candidates? If so, one might wonder whether the judge in question is attempting to advance or derogate a particular candidate. While a judge may personally speak as an individual on behalf of or support another candidate for judicial office, the judge may not use the prestige of the judicial office and the judge's judicial authority in sentencing to do so.
Because the sentencing practice is improper, the inquiry as to whether the offenders can report to and be supervised by a court staff probation officer is moot.