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.
February 25, 1993
A judge may not serve on a legislative affairs and political action committee whose mission is to support pro-business interests by promotion in the media, before governmental bodies, and by supporting the election of business oriented candidates to partisan or nonpartisan offices.
References: MCJC 1, 2C, 4, 5B, 5G, 7A; J-1; JI-12, JI-18, JI-46, JI-52; C-237.
A judge inquires as to the ethical implications of participating on a legislative and political action committee for the Chamber of Commerce. The committee is designed to establish and maintain a pro-business environment by identifying and promoting legislative issues which may affect the business sector. It would seek to enhance the business sector by advising the public and governmental units of the particular position of the Chamber of Commerce on issues which are of interest to the membership. Furthermore, the committee would support the election of business oriented candidates.
MCJC 4 states:
"As a judicial officer and person specially learned in the law, a judge is in a unique position to contribute to improvement of the law, the legal system, and the administration of justice, including revision of substantive and procedural law and improvement of criminal and juvenile justice. To the extent that his time permits, he is encouraged to do so, either independently or through a bar association, judicial conference, or other organization dedicated to the improvement of the law." Emphasis added.
The activities of judges in civic affairs are further guided by MCJC 5B which states in part:
"A judge may participate in civic and charitable activities that do not reflect adversely upon his impartiality or interfere with the performance of his judicial duties." Emphasis added.
MCJC 5G states in part:
"A judge should not accept appointment to a governmental committee, commission, or other position that is concerned with issues of fact or policy on matters other than the improvement of the law, the legal system, or the administration of justice." Emphasis added.
In J-1 we discussed the limitations and criteria of MCJC 4 and MCJC 5 that should determine whether or not a judge should participate in certain civic activities. One of the guidelines provided that the activity should not reflect adversely on the judge's impartiality. An additional guideline opposed participation if the organization or its members would be likely to appear in the judge's court or in any adversary proceedings in any court. MCJC 5B. In regard to the issue of impartiality, the judge must be neutral, and therefore, should refrain from participating in furthering or opposing the interests of business. MCJC 1, 2C. By serving as a member of a committee which has taken a stance in favor of or in opposition to a particular sector of the community, the judge is stripped of impartiality and would face recusal on each occasion that the policy or law affecting that sector was the subject matter being contested in a legal proceeding or when a member of that sector appeared before the judge in question. It is clear that promoting the interests of the business sector is distinct and apart from the general "improvement of the law, the legal system, or the administration of justice" as it pertains to the courts.
This Committee has approved certain participation on non-governmental and governmental entities that do not detract from the dignity of judicial office nor diminish the judge's impartiality. In JI-12, we determined that a newly appointed judge could "continue to serve as a member of a governmental agency which evaluates and administers grant fund proposals" to various groups provided that neither the grantees nor the agency were frequently before the court. It was concluded that the judge should disclose the participation and grant a request for recusal on any occasion that the agency appeared in the judge's court. In JI-18, we stated that a judge could accept an appointment as an unpaid "ceremonial head" to a census committee designed to emphasize the importance of an accurate and complete count for the 1990 census. The public service was held not to reflect adversely on the judge's impartiality nor would it give an appearance of impropriety. This Committee also concluded that this same judge could also serve as a director for a nonprofit corporation of a university to manage various entrepreneurial activities. The judge's participation was conditional upon refraining from the personal solicitation of funds or allowing the use of the prestige of the judge's office to compel financial contributions. In JI-46, we also determined that a judge could participate in a countrywide millage campaign designed, in part, to benefit the legal system by defraying operational costs of the courts and developing education programs which would supplement court probation services. It was recommended that the judge's activities focus only "upon matters pertinent to the court."
In JI-52, we concluded that a judge could not sign a resolution which requested that the mayor and county board of commissioners take steps to prevent a business from closing in their community. It was determined that not only was the resolution controversial, but the matter was likely to be the subject of litigation due to the loss of jobs. Similar to the current inquiry, the activity in JI-52 focused upon private and civic interests showing favoritism and bias for a private group, union employees, and not judicial matters of "the law, the legal system or the administration of justice." Citing C-237, which recommended against expressing an opinion on a ballot proposal regarding capital punishment, we determined that:
". . . a judge should not express a partisan or specific opinion on issues, since the expression of the opinion may be grounds for recusal of the judge if a similar matter comes before the judge. A judge may be less able to render a fair and unbiased decision on an issue that comes before the judge if the judge has publicly committed himself/herself to a course of conduct or policy."
A secondary function of the legislative affairs and political action committee is to screen and support the election of "business oriented candidates" to legislative and judicial posts.
MCJC 7A states:
"(1) A judge or candidate for judicial office should not:
". . .
"(b) make speeches on behalf of a political party or non-judicial candidate or publicly endorse a candidate for non-judicial office."
It is clear that a judge should refrain from participating in a process that publicly endorses a candidate for nonjudicial office, although MCJC 7A(2) does permit judges to "attend political gatherings" and to "contribute to a political party." A judge's membership and participation on a committee for the purpose of screening and providing public support of legislative candidates is therefore unethical. In regard to supporting candidates for judicial office, a judge's endorsement may be subject to criticism if it is demonstrated that the basis of the endorsement is to support the election of pro-business individuals. The judge as well as the judicial candidate would incur the appearance of being predisposed in favor of pro-business interests or members of the Chamber of Commerce and would face recusal in legal proceedings involving such interests. Therefore, a judge should refrain from participating in any function of this subcommittee of the Chamber of Commerce.