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.
November 16, 1993
A judge may accept scholarships or fellowships in order to attend professional development seminars provided they are awarded on the same terms as applied to nonjudicial applicants and do not adversely reflect upon the judge's impartiality toward persons whose interests come before the judge.
A judge may compete for scholarship funds to attend a professional seminar designed to develop leadership and networking for women. If scholarship funds are received, a financial report should be filed with the State Court Administrator.
References: MCJC 2A and E, 4A, 5C(4)(a) and (b), 6C; CI-320, CI-549, CI-1070; MCR 8.110(E), (F)(3) and F(4).
A judge requests an interpretation of MCJC 5C(4)(b) in contemplation of competing for scholarship funds for the purpose of attending a professional seminar designed to develop more women leaders and to link them to the expanding network of their peers across the nation. Leadership America is a program that promotes itself as a national, non-profit leadership development program for women of achievement in order to broaden [their] horizons and increase [their] influence. Since 1988 a group of 100 women, including lawyers and elected officials, have been selected to attend a year-long series of three, three and a half day professional development seminars. The selection criteria includes an assessment of the applicant's ability to make substantive contributions to seminar discussions. The 1994 tuition is $3800, and tuition assistance of less than one-third is available based upon demonstrated financial need. A number of national corporations help to underwrite the program. Approximately one-half of the participants proceed to be active in an alumna association. Alumna members contribute to provide scholarships for future applicants, meet regularly for continuing education programs, and maintain a task force which works toward increasing the number of women appointed to agencies, boards and commissions in the public and private sectors.
MCJC 5C(4)(b) states:
"A judge or a family member residing in the judge's household may accept ordinary social hospitality; a gift, bequest, favor, or loan from a relative; a wedding or engagement gift; a loan from a lending institution in its regular course of business on the same terms generally available to persons who are not judges; or a scholarship or fellowship awarded on the same terms applied to other applicants."
Unlike MCJC 5C(4)(a) in regard to gifts and loans, there does not appear to be a monetary figure restriction on the amount of the scholarship. If a judge did receive scholarship or fellowship funds, the judge must file an appropriate financial report with the State Court Administrator's Office as required by MCJC 6C, which states:
"A judge should report the date, place, and nature of any services for which the judge received compensation and the amount of remuneration received and complete detailed information of all contributions of money or of a tangible thing of value by any person, party, committee, organization, firm, group, or entity, directly or indirectly, to or for the judge's benefit for any purpose whatever, including, but not limited to, a contribution for a judicial campaign or otherwise and of all disbursements or use of contributions, all on forms to be prescribed by the state court administrator. The report filed with the state court administrator should indicate the date the detailed report of campaign contributions and expenditures is filed with the secretary of state as required by statute. The detailed report need not be resubmitted to the state court administrator. The report filed with the state court administrator should state the total amount of campaign contributions received, the total amount of campaign expenditures disbursed, the total funds remaining after disbursement, and whether or not such remaining funds were returned to the contributors or donated to the client security fund of the State Bar of Michigan. The judge's report should be made at least annually and shall be filed as a public document in the office of the state court administrator."
This report is a public document and is to be filed on an annual basis. Authors Shaman, Lubet and Alfini in Judicial Conduct and Ethics, Michie Company, 1990, at Section 7.28, interpret MCJC 5C to prohibit judges and the judge's families from accepting gifts from lawyers, parties, and other person whose interests have come or are likely to come before the judges. Therefore, regardless of competing for scholarship funds on equal ground with other applicants, a judge should refrain from accepting scholarship funds that could be construed as a "gift" or affecting the judge's impartiality if the parties involved are likely to appear in the judge's court. This would be especially true if the benefit is intended to exert overt or subtle influence.
The underlying purpose for the scholarship or fellowship may also be subject to circumspection. For instance, pursuant to MCJC 2A, judges must recognize that they are the subject of constant public scrutiny and must refrain from actions that may be improper or have the appearance of bias. The participation in any event that excludes any person based upon a personal characteristic, i.e., gender, may lead an individual to conclude that a particular personal characteristic may be grounds for prejudice or favorable bias by the participating judge in matters before that court.
"The need for the judiciary to avoid the appearance of partiality exists even in the absence of actual wrongdoing or favoritism. In a democracy, the enforcement of judicial decrees and orders ultimately depends upon public cooperation. The level of cooperation, in turn, depends upon a widely held perception that judges decide cases impartially . . . . Consequently, judges are called upon to avoid all activity that so much as suggests that their rulings are tempered by favoritism or self-interest." Judicial Conduct and Ethics, Section 10.03.
Therefore, it would appear to be prudent for a judge to refrain from association with an organization which admittedly, and in fact, excludes a particular gender from participation.
MCJC 4A states:
"A judge may speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice."
The Leadership America program professes to include lawyers and elected officials based upon their ability to make substantive contributions to seminar discussions. It is at least arguable that a judge could contribute to the promotion of a better understanding and appreciation of the legal system by participation in a seminar of this nature. In CI-320, CI-549 and CI-1070 we concluded that MCJC 5A provides that a judge may engage in non-legal social, civic, and charitable functions that do not detract from the dignity of their office and that do not reflect adversely upon their impartiality or interfere with the performance of their judicial duties, and do not involve individuals or special interests which would likely come before the court. A judge's attendance should also be reviewed by the chief judge pursuant to MCR 8.110(E) which regulates the coordination of that particular court's caseload and judicial vacations or absences. The nature of the seminar should determine whether the time away from the court qualifies as a judicial vacation or other approved absence as provided by MCR 8.110(F)(3) and (4).
Above and beyond attending the seminar as sponsored by the Leadership America program is the participation in the alumna association. To the degree that the association seeks to exclusively promote individuals based upon their gender, a judge must exercise extreme caution before participation in activities which fall under the conduct proscribed by MCJC 2E which states:
"A judge should not allow activity as a member of an organization to cast doubt on the judge's ability to perform the function of the office in a manner consistent with the Michigan Code of Judicial Conduct, the laws of this state, and the Michigan and United States Constitutions. A judge should be particularly cautious with regard to membership activities that discriminate, or appear to discriminate, on the basis of race, gender, or other protected personal characteristic. Nothing in this paragraph should be interpreted to diminish a judge's right to the free exercise of religion." Emphasis added.
It should be noted that the language proposed by the Representative Assembly of the State Bar of Michigan regarding a judge's membership in organizations which discriminate was significantly different from the language adopted by the Supreme Court. Proposed MCJC Canon 2C stated that:
"C. A judge should not allow family, social, or other relationships to influence judicial conduct or judgment. A judge shall not hold membership in any organization which the judge knows invidiously discriminates on the basis of race, religion, disability, age, sexual orientation, gender, or ethnic origin. A judge should not use the prestige of the judicial office to advance the business interests of the judge or others. A judge should not appear as a witness in a court proceeding unless subpoenaed."
The proposal was rejected by the Supreme Court in favor of the language in MCJC 2E. Although the Supreme Court fell short of prohibiting membership in organizations which invidiously discriminate, the Court emphasized that activities of a judge, including membership in organizations, should not call into question the judge's ability to perform judicial functions in a fair, consistent and legal manner. A judge must also be acutely aware of the possible inference that an organization could directly or indirectly utilize the prestige of the judicial office.
"Closely related to the appearance of partiality or self-interest is the issue of collateral misuse of the judicial office. Although the integrity of the judging process may not be directly compromised, it is considered improper for a judge to take advantage of [their] position and title in order to advance an economic, political, social or other interest. Furthermore, it is considered improper for a judge even to appear to do so." Judicial Conduct and Ethics, Section 10.04.
For all of the foregoing reasons, a judge's participation in alumna associations or other organizations whose sole purpose is to promote a particular gender or other personal characteristic to influential positions to the exclusion of others should be carefully considered.