Organizations and advocacy

The tension between the desire of judges to remain engaged in their communities and their responsibility to be and appear to be impartial and apolitical has been illustrated recently in a judicial discipline decision and several judicial ethics advisory opinions regarding service on the boards of non-profit organizations.

A Utah judge was reprimanded for serving as president of a national non-profit organization dedicated to the social, political, and economic well-being of Asian Pacific Americans, called OCA-Asian Pacific American Advocates.  In re Kwan, Order (Utah Supreme Court November 4, 2016).  The Judicial Conduct Commission’s reprimand (which was based on a stipulation and which was approved by the Utah Supreme Court) noted that the judge had not intended to violate the code of judicial conduct but wanted to aid and lift up the Asian Pacific American community, fight injustice, discrimination, and inequality, and build understanding and unity.

After receiving a complaint about the judge’s service as president of OCA-Asian Pacific American Advocates, the Utah Commission requested an opinion from the Ethics Advisory Committee, and the committee, without naming the specific organization, stated that a judge may not serve as president of an organization dedicated to advancing the social, political, and economic well-being of a specific ethnic group.  Utah Informal Opinion 2015-1.  The Commission then notified the judge, and the judge immediately resigned as OCA president.  In response to the judge’s subsequent request for additional guidance, the committee issued a second opinion but did not change its advice.  Utah Informal Opinion 2016-2.

As described in articles and press releases that included the judge’s name and judicial title, during the judge’s term, the organization had applauded the introduction of legislation regarding voters’ rights, human trafficking, and broadband; called for a national dialogue on responsible gun ownership and for the end of deporting undocumented immigrants; extended sympathy to the families of mass murder victims; filed an amicus brief in a federal case; commended the U.S. Supreme Court for decisions in several cases; and criticized statements by presidential candidates.  Because a judge may not personally express his views on legislation and political issues that are not directly connected to the judicial system, may not publicly comment about a pending case, and may not publicly oppose a political candidate, the committee stated that a judge may not serve as a president of an organization that engages in those activities.  The committee noted that it did not believe a judge could serve as president of an organization without being linked with its positions and activities in its press releases and articles.  The committee explained that, “[e]ven though judges may serve as officers in civic organizations, judges must be particularly cautious when those organizations are advocacy groups.  A group that advertises itself as dedicated to advancing the political well-being of its members should automatically raise concerns for a judge.”  Further, the committee advised, although a judge may be the president of an organization that engages in fund-raising, a judge may not participate in the fund-raising and, therefore, may not be mentioned in a press release announcing a fund-raiser.

In the follow-up opinion in response to the judge’s questions, the committee stated that its advice applied even if the organization did not use the judge’s title because a “judge cannot avoid the limitations imposed by the Code of Judicial Conduct by acting or purporting to act as a private individual or when serving as a representative of an organization.”  Further, the committee stated it did not matter if the judge held an office other than president because “[t]he public could reasonably perceive all office holders as responsible for, or at least supporting, the statements and policies of the organization.”

The committee also disagreed with the judge’s argument that the organization’s statements fell within the code exception that allows a judge to speak on issues that personally affect the judge.  Stating “this provision must be read narrowly,” the committee explained that, “[i]n a broad sense, many pieces of legislation have the potential to affect a judge’s interests” but the interest or the impact must be “significant and direct” to permit public statements by the judge.

The committee also stated that public criticism of a political candidate fell within the ban on publicly opposing a candidate because the prohibition would be of “little value” if it were limited to express endorsements or opposition.  It explained:

When an individual is running for public office, a judge’s public comments either praising or criticizing that individual can be reasonably viewed as support or opposition.  A judge should frankly avoid any public statements about candidates for office, whether made on the bench, as a private citizen, or as an officer of an organization.

Finally, the committee stated, the prohibition on participating in fund-raising included publicly thanking individuals for attending a fund-raising event, which may create the appearance that the judge participated in the fund-raising efforts.  The opinion noted, “[t]here is no reason for a judge to publicly thank individuals when certainly there are others in the organization who may act in that capacity.”

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The Connecticut Committee on Judicial Ethics advised that a judge could – as long as she complied with numerous conditions — serve on the board of directors of a national ethnic bar association as well as donate money to and join the organization.  Connecticut Informal Advisory Opinion 2016-16.  The conditions on the judge’s affiliation were that she:

  • May not associate herself with the organization’s positions on matters of public controversy;
  • May not use her judicial title in connection with her membership or donations and should obtain adequate assurances that the organization will not publicize or use her judicial title for any purpose;
  • Should carefully consider whether specific programs or activities of the organization may undermine confidence in her independence, integrity, and impartiality;
  • Should regularly re-examine the activities and rules of the organization to determine whether to continue her relationship;
  • Should disqualify herself from any litigation in which the organization (including a state chapter) is a party or is representing a party; and
  • Should disclose her affiliation and consider whether recusal is necessary if an issue comes before her that involves a matter on which the organization has taken a public position by litigation or lobbying, for example.

With the same caveats, the committee in the same opinion gave permission for a judge to donate money to and be a member of the American Civil Liberties Union but concluded that a judge may not serve on the board of the ACLU.  The committee noted that “many of the issues championed by the ACLU through lobbying and litigation are controversial and of a high public profile.”  It also noted that the ACLU was not apparently a party to any pending civil cases in the superior court, although its state chapter had appeared as counsel or amicus in approximately 8 cases before the Connecticut Supreme Court within the past 5 years.

The committee explained that the ACLU has attributes of both an organization “concerned with the law, the legal system, or the administration of justice” in which judges have some latitude to participate and a “political organization” in which their participation is restricted.  Thus, the committee concluded, a judge may join the ACLU and donate to the organization but should not serve as an officer, on the board of directors, or in any other leadership position.  Its analysis was the same for the Southern Poverty Law Center.

In contrast, the Connecticut committee stated, a judge could not even donate or belong to the National Organization for Women, much less be a board member.  It noted that, according to NOW’s web-site, the organization is not affiliated with any political party and all candidates for office are eligible for NOW’s endorsement.  But it also noted that NOW’s web-site and its affiliated political action committee “appear to be one-sided in their support of one of the major political parties and its candidates, and NOW’s president has been outspoken about the results of the 2016 presidential election.”  (At least with respect to the latter point, however, NOW seems indistinguishable from the ACLU.)  The committee concluded, “[g]iven the clear political bent of NOW and its political action committee, it appears that the Judicial Official’s proposed involvement with NOW would constitute improper political activity” and “could call into question the Judicial Official’s independence, integrity and impartiality . . . .”

Charitable contributions as part of a sentence

Judicial ethics committees have consistently advised that, absent express legal authority, a judge may not require a contribution to a charity as part of a sentence.   In addition, judicial conduct commissions have disciplined judges for requiring a charitable contribution as part of a criminal disposition.

The rationale for the rule is that a judge may not personally solicit contributions to charitable organizations or use the prestige or power of the judicial office to do so and incorporating a charitable contribution into a sentence is in effect solicitation of funds.  The prohibition applies even if the judge is simply approving a plea bargain or allows the defendant to choose where the donation goes.  Further, it applies when the contribution is in exchange for dismissal or withholding adjudication or in lieu of attorney sanctions or community service

An article on charitable contributions as part sentencing was published in the winter 2000 issue of the Judicial Conduct Reporter and will be up-dated in the next issue.  You can sign up to receive notice when a new issue is available at http://www.ncsc.org/newsletters.  In the meantime, below are summaries of advisory opinions and cases issued since the original article.

  • When a statute authorizes a judge to approve a deferred sentence agreement in which the defendant agrees to pay a sum certain to a designated charity, a judge may approve such an agreement as long as the judge does not choose or suggest the charity. Colorado Advisory Opinion 2008-7 .
  • A judge may not order that attorneys or litigants pay a fine for civil contempt or other sanctionable conduct to a specific charity or to a charity or worthy cause selected by the person being sanctioned. Hawaii Advisory Opinion 2001-1.
  • A judge may not permit a defendant who has been convicted of a misdemeanor to make a contribution to a charity of the defendant’s choice in lieu of imposing the usual fine of $300. Kansas Advisory Opinion JE-108 (2001).
  • Pursuant to the recommendation of the Judicial Tenure Commission to which the judge consented, the Michigan Supreme Court censured and suspended for 30 days a magistrate who advised defendants to purchase tickets to a charitable event in exchange for having their tickets dismissed. In re Shannon, 637 N.W.2d 503 (Michigan 2002).
  • A judge may not accept a plea bargain if the judge knows that a precondition to the recommendation is payment of money to a specified charity, the county treasury, or a county crime reduction fund. Missouri Advisory Opinion 176 (2000).
  • A judge may not require donations to a county school fund in lieu of a fine even as a condition of probation or part of a plea bargain. Missouri Advisory Opinion 180 (2002).
  • A judge may not as part of a criminal sentence order a convicted defendant to make a charitable contribution or approve a plea bargain agreement between the prosecutor and the defendant that includes the defendant’s agreement to make a charitable contribution even if the judge does not select the charity or the amount of the contribution. Nevada Advisory Opinion 2000-3 .
  • A judge may approve a plea bargain agreement that includes the defendant’s donation of money to the county STOP DWI program as long as the judge determines that the plea bargain is legally appropriate and ethical under the code of professional responsibility. New York Advisory Opinion 2008-67 .
  • A judicial officer may not approve a stipulated order of continuance in which the city prosecutor and defendant agree to case dispositions in which money is to be paid to the city that is not in accord with statutory provisions. Washington Advisory Opinion 2004-5.

Encouraging pro bono service

In the fall 2004 issue of the Judicial Conduct Reporter, an article explained that, as a corollary to the prohibition on judges’ personally participating in the solicitation of funds for a charitable organization and a reflection of the adage that “time is money,” judicial ethics committees have advised that a judge may not solicit attorneys to provide pro bono legal services to individuals, including signing a letter distributed to the bar.

In 2007, the American Bar Association Model Code of Judicial Conduct was revised to provide, in Rule 3.7(B), that “a judge may encourage lawyers to provide pro bono publico legal services.”  Comment 5 explains:

In addition to appointing lawyers to serve as counsel for indigent parties in individual cases, a judge may promote broader access to justice by encouraging lawyers to participate in pro bono publico legal services, if in doing so the judge does not employ coercion, or abuse the prestige of judicial office.  Such encouragement may take many forms, including providing lists of available programs, training lawyers to do pro bono publico legal work, and participating in events recognizing lawyers who have done pro bono publico work.

Recently, in a formal opinion, the ABA Standing Committee on Ethics and Professional Responsibility advised that a state supreme court justice may sign a letter on the justice’s stationery that is duplicated and mailed by the unified state bar association encouraging all lawyers in the state to provide pro bono legal services to persons in need and to contact the bar association for information about volunteer opportunities.  ABA Formal Advisory Opinion 470 (2015).  The committee noted that “signing a letter encouraging lawyers to perform pro bono services is not one of the specific activities listed as permissible in Comment [5]” but “is consistent with the encouragement listed in Comment [5].”

The committee explained that the proposed letter would not be soliciting a contribution but “encouraging lawyers to meet their professional responsibility to provide pro bono legal services pursuant to Model Rule of Professional Conduct 6.1,” stating “a contradictory reading [of the code] would be unreasonable.”  In approving judicial involvement, the committee emphasized that:

  • The proposed letter was encouraging lawyers to perform pro bono service in general without identifying a specific agency or program.
  • The proposed letter would not have a personal salutation and would be sent to every lawyer in the state.
  • Use of court resources would be incidental because the bar would duplicate and mail the letter so only one piece of the justice’s stationery would be used.
  • The justice will not know any lawyer’s response to the letter because the state bar, the supreme court, and the justice would not do any “follow-up monitoring.”

“Forsee[ing] facts under which a letter from a judge urging a lawyer to perform pro bono legal services could be viewed as coercive by a reasonable person,” the committee identified factors a judge should weigh before sending a letter, including the number of lawyers who will receive the letter, the number of judges in the jurisdiction, and the tone of the letter.  “A letter in which the justice speaks in aspirational and encouraging language will have a much different impact,” the committee advised, “than a letter that features dictatorial, condescending language.”

Accord Alabama Advisory Opinion 2004-847 (a judge may write a letter to members of a local bar association encouraging them to participate in the state bar’s volunteer lawyers program); Florida Advisory Opinion 2010-31 (a chief judge may send a letter soliciting lawyers’ participation in a Florida Bar campaign by donating pro bono legal services or making a monetary donation to a legal aid organization); Kentucky Advisory Opinion JE-107 (2005) (a judge may not write a personal letter urging members of the bar to donate time to a particular pro bono organization but may write a generic letter to the bar at large that does not refer to a specific organization); Texas Advisory Opinion 258 (2000) (a board of judges may send out a letter signed by all of the judges to all members of the local bar association asking them to consider donating time and services to a volunteer lawyer project’s pro bono legal clinic).

See also Alaska Advisory Opinion 2004-1 (a judge may make general appeals to participate in pro bono efforts, including referring to a list of available pro bono programs; may participate in a workshop or CLE seminar available at no cost to attorneys who undertake pro bono cases; may write articles for bar or general circulation media encouraging attorneys to participate in pro bono work; and may publicly acknowledge the pro bono activity of particular attorneys; a judge may not send letters of congratulation directly to attorneys or host a social event for attorneys who have participated in pro bono activity); Colorado Advisory Opinion 2006-2 (a judge may encourage attorneys to perform pro bono services and act as an advisor to the local legal service’s call-a-lawyer program); Florida Advisory Opinion 2012-26 (a judge may solicit attorneys to volunteer as pro bono attorneys ad litem for children in dependency cases at a local bar associations’ regular lunch meetings or request local bar associations to convene a special meeting for that purpose); Maryland Advisory Opinion Request 2013-29 (judges may solicit attorneys to represent indigent parties pro bono by writing to attorneys individually, by speaking publicly to bar gatherings, or by placing advertisements in bar publications.); Michigan Advisory Opinion J-7 (1998) (a judge may “write, speak, lecture, and otherwise participate in a wide range of activities designed to promote and encourage attorneys to engage in . . . pro bono representation”); New York Advisory Opinion 2009-68 (a judge who serves on a court pro bono committee may sign formal or handwritten letters of appreciation on behalf of the committee, using court or committee letterhead, to attorneys who serve as volunteer pro bono advocates before other judges).

Participating in charitable fund-raising

In the recently published summer issue of the Judicial Conduct Reporter, there is an article on participating in charitable fund-raising events (a follow-up to the article in the spring issue on “defining ‘charitable fund-raising event’”). The article reveals some consensus but also some splits among the state advisory committees and even over time on what types of participation are permissible and which are over-the-line for judges.

There may be a more lenient attitude developing toward judicial participation in fund-raising, particularly when a judge’s status as a judge is downplayed and his or her status as a member of the community is emphasized. Thus, a judge can solicit contributions from family members, since it is the family relationship, not the judicial office that is important there, and may under most circumstances be just one of the members of a band playing at an event or one of waiters at a dinner or one of the walkers in a walk-athon. But a judge cannot act as a celebrity waiter or run a 100-yard-dash in her robe or participate in a “dunk-the-judge” booth to raise funds.

So far no advisory committee has issued a formal, public opinion on whether judges may participate in the viral ice bucket challenge that has raised so much money for ALS research.  But the principles announced in previous opinions should be transferable.