May a family court judge join a committee supporting a tax-related constitutional amendment?

Plain-English summary

A family court judge was invited to join a bipartisan committee promoting a constitutional amendment for a tax package intended to fund governmental services, including courts and corrections. The committee planned to inform voters and encourage support for the amendment.

The Commission said activities supporting adequate funding for courts and related justice systems can fall under Canon 4. It nevertheless conditioned participation on Canons 4, 5B and 7A(1): the judge's work could not impair judicial duties or impartiality, and it had to avoid an appearance that political interests entered judicial decisions. The Commission did not prescribe every permissible campaign activity; it made the judge's particular role and conduct decisive.

In practice

Under this opinion, participation on the committee was permitted only within the restrictions stated in Canons 4, 5B and 7A(1). The Commission emphasized the judge's ability to decide future matters impartially and the appearance of political entanglement in judicial decisions.

Common questions

Q: Did the Commission permit committee membership?

A: Yes, subject to the judge's participation being consistent with Canons 4, 5B and 7A(1).

Q: Why did the proposed funding measure relate to judicial activity?

A: The Commission said funding for courts and related systems, including corrections, fell within Canon 4's concern with improving the administration of justice.

Q: Did the opinion authorize political fund raising by the judge?

A: No general authorization was given. The opinion describes Canon 7A(1)'s discouragement of political fund solicitation and Canon 5B's limits on using judicial prestige in fund raising.

Background and rules framework

Alabama Canon 4 governs activities to improve the law and administration of justice; Canon 5B limits civic activities and fund raising; and Canon 7A(1) addresses political activity and its appearance in judicial decisions. The opinion also cited Canons 4A, 4C and 7A(3).

Citations and references

Alabama Advisory Opinions 82-140, 83-192, 84-204, 84-216, 95-570, 96-596, 99-732, 00-747, 00-753 and 01-773; Arkansas Advisory Opinion 94-01; Florida Advisory Opinions 94-01 and 98-14; Michigan Advisory Opinion JI-46; Washington Advisory Opinions 98-06 and 00-03.

See also

• AL Judicial Ethics Op. 03-822: County Chaplain Request

Source

• Landing page: Alabama JIC advisory opinions

• Original PDF: Advisory Opinion 03-819

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

JUDICIAL INQUIRY COMMISSION
DATE ISSUED: JULY 11, 2003 ADVISORY OPINION 03-819
PARTICIPATION ON COMMITTEE
SUPPORTING CONSTITUTIONAL
AMENDMENT
ISSUES
May a family court judge participate on a
bipartisan committee for the “Campaign for
Alabama?” Answer: Yes, subject to the
restrictions in Canons 4, 5B and 7A(1).
FACTS
A family court judge has been asked to
participate on a committee for the “Campaign
for Alabama.” Its purpose is to provide
information to the public concerning the
merits of a tax package that will be the subject
of a vote by the people of Alabama in
September. The provisions in the tax package
were recently proposed by the governor and
approved by the legislature as a means of
ensuring that essential governmental services
and functions, including education and the
courtandcorrectionssystems,canbeprovided
and operated at an appropriate level both now
and in the future.
The committee will be bipartisan and its
members will be drawn from a cross section
of the community. It will inform the citizenry
of its strong support for the constitutional
amendment authorizing the tax package
measures, and encourage people to vote in
favor of it. The judge’s role on the committee
would be to support the committee and its
agenda of passing the constitutional
amendment.
DISCUSSION
Canon 4 provides that, “subject to the proper
performance of his judicial duties,” a judge
“may engage in activities to improve the law,
the legal system, and the administration of
justice” so long as he “does not cast doubt on
his capacity to decide impartially any issue
that may come before him.” Canon 4A
specifically authorizes activities such as
speaking and writing concerning the law, the
legalsystem,andtheadministration ofjustice.
Canon 4C states that a judge may serve as a
member, officer or director of an organization
devoted to the improvement of the law, the
legal system, andthe administration of justice,
and may “assist” such an organization in
raising funds and participate in their
management and investment.
The foregoing activities are deemed “quasi
judicial” in character. The Commentary to
Canon 4 recognizes that, as a judicial officer
and a person specially learned in the law, a
judge is in a unique position to contribute to
improvement of the law, the legal system and
theadministrationofjustice.TheCommentary
states that, to the extent that his time permits,
a judge is encouraged to participate in such
activities.
Thus, a judge is encouraged to participate in
activities involving the law, the legal system
and the administration of justice if the judge’s
conduct (1) is not so time consuming as to
interfere with the proper performance of
judicial duties, and (2) does not cast doubt on
the judge’s capacity to decide impartially any
issue that may come before him. Taking a
public stance advocating the adoption, repeal,
or modification of a particular law may be
inappropriate under Canon 4 if related issues
are likely to come before the judge in his
judicial capacity. See Advisory Opinions 83-
192, 84-204 and 99-732.
ADVISORY OPINION 03-819
PAGE 2
Extra-judicial activities of a civic nature are
governed byCanon 5B. This canon states that
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.”
Canon 5B also states the following:
A judge may serve as an officer,
director,trustee,ornonlegaladvisorof
an educational, religious, charitable,
fraternal, or civic organization or
institution not conducted for the
economic or political advantage of its
members, subject to the following
limitations:
(1) A judge should not serve if it is
likely that the organization or
institution will be engaged in
proceedings that would ordinarily
come before him or will be
regularly engaged in adversary
proceedings in any court.
(2) It is desirable that a judge not
solicit funds for any educational,
religious, charitable, fraternal, or
civicorganization orinstitution, or
use or permit the use of the
prestige of his office for that
purpose, but he may be listed as an
officer, director, or trustee of such
an organization or institution.
(3) A judge should not give
investment advice to such an
organization or institution, but he
may serve on its board of directors
or trustees even though it has the
responsibility for approving
investment decisions.
Canon 5B contains restrictions on general
participation in extra-judicial civic activities
that are similar to the restrictions in Canon 4
for quasi-judicial activities. Under Canon 5B,
a judge may not participate in such activities
if they are so time consuming as to interfere
with the performance of judicial duties, nor
may a judge participate in activities that
reflectadverselyuponthejudge’simpartiality.
Canon 5B also contains additional limitations
in connection with what might be
characterized as leadership positions in a civic
organization concerned with extra-judicial
matters that is not conducted for the economic
or political advantage of its members. Canon
5B(1) prohibits service in such a capacity if it
is likely that the organization will be engaged
in proceedings that would ordinarily come
before the judge, or if it will be regularly
engaged in adversary proceedings in any
court. Canon 5B(3) prohibits giving
investment advice to the organization. A
judge may not be a legal advisor to such an
organization. While Canon 5B(2) does not
absolutely prohibit a judge from participating
in fund solicitation, it strongly discourages
such activity.
Participation in fund raising presents a
danger that the prestige of the judicial
office will be used for the solicitation
of funds. Advisory Opinions 81-101
and 96-596. It also involves a danger
that the person solicited will feel
obligated to respond favorably if the
judge is in a position of influence or
control. Commentary to the Model
Code of Judicial Conduct, Canon
4C(3)(b) (1990). A judge who
participates in fund raising for a civic
or charitable organization must be
ADVISORY OPINION 03-819
PAGE 3
ever mindful of the provisions of
Canons 1 and 2, and must limit such
participation so that he or she does not
lend the prestige of his or her judicial
office to the event or otherwise violate
either the letter or the spirit of Canons
1 and 2. Advisory Opinions 83-174,
83-179, 85-242, and 96-596.
Advisory Opinions 00-747 and 00-753. A
judge’s name may be listed as an officer,
director, or trustee of a civic organization, but
his judicial position or title may not be used in
fund-raisingactivities. AdvisoryOpinions 84-
216, 96-596, 00-753, and 01-773. A judge
should not solicit funds from a person or
entity who regularly is a party to proceedings
in the judge’s court. Advisory Opinion 01-
773.
Canon 7A(1) requires judges to refrain from
political activities inappropriate to their
judicial office, and it discourages judges from
becoming involved in the internal workings
of political organizations and from
participating in political fund solicitations
apart from the judge’s own campaign for
office. Canon 7A(1) also requires that judges
conduct themselves at all times in a manner
so as to pre- vent any political considerations,
entanglements, or influences from ever
becoming involved in, or from ever appearing
to be involved in, any judicial decision or the
judicial process. Canon 7A(3) states that
judges “may engage in activity on behalf of
measures to improve the law, the legal system,
or the administration of justice.”
Under Canon 7, activities on behalf of
measures to improve the law, the legal system,
or the administration of justice are not
inappropriate to the judicial office. However,
involvement in political organizations
involving extrajudicial issues and fund raising
for such organizations are discouraged, and it
is imperative that a judge take care that his or
her particular actions in this regard do not
create an appearance that political influences,
entanglements or considerations are involved
in judicial decisions or the judicial process.
Activities in support of appropriate funding
for the courts, as well as for related systems
such as the Department of Corrections, fall
within the scope of Canon 4. As the
Commission has previously recognized, the
“administration of justice” includes the
functions of the legal system by which and
through which cases may be brought before a
court, tried, determined, and disposed of and
judgments enforced. Advisory Opinions 82-
140 and 95-570. Thus, activities in support of
appropriate funding for the courts and related
governmental systems are encouraged under
Canon 4, so long as the particular activities
involved do not interfere with the proper
performance of the judge’s judicial duties or
cast doubt on the judge’s capacity to decide
impartially any issue that may come before
him. See, Advisory Opinion JI-46 (Michigan
StateBarStandingCommitteeonProfessional
& Judicial Ethics, Feb. 20, 1992); Advisory
Opinion 94-01 (Arkansas Judicial Ethics
AdvisoryCommittee,Feb.18,1994);Opinion
98-06 (Washington Ethics Advisory
Committee, July 24, 1998); Opinion 00-03
(Washington Ethics Advisory Committee,
March 10, 2000); Opinion 94-01 (Florida
Supreme Court Judicial Ethics Advisory
Committee, March 2, 1994); see also,
Opinion 98-14 (Florida Supreme Court
Judicial Ethics Advisory Committee, July 13,
1998).
ADVISORY OPINION 03-819
PAGE 4
While Canon 4 may sanction activities in
support of funding measures that contribute to
the improvement of the law, the legal system
or the administration of justice, the Canon
does not presuppose that there will be
unanimity of opinion as to what proposals do
and do not serve that purpose. Accordingly,
Canon 4 may likewise sanction activities
against proposals that are reasonably deemed
damaging to the law, the legal system or the
administration of justice.
UnderCanon7A, a judgeengaged inactivities
on behalf of measures to improve the law, the
legal system or the administration of justice
must take care that he conducts himself in a
manner so as to prevent political
considerations, entanglements or influences
from becominginvolvedin,orfromappearing
to be involved in, any judicial decision or the
judicial process. Florida Opinion 94-01
contains the following pertinent comments:
[I]t maybe inappropriate for a judge to
become so identified with a cause that
the public would lose confidence in
the judge’s ability to preside over a
case involving a party who has a
position opposing the judge’s.
Another danger a judge faces in
making public comment is that the
judgecouldbecomeembroiledin what
could be partisan party conflicts over
the best way to spend tax dollars.
Much of the Committee’s concern is
based on the specifics of the public
comment and not the fact that some
public comment is being made.
Before joining any organization either for or
against the constitutional amendment in
question, a judge should consider the areas of
concernexpressedin Canons4,5Band7A(1).
If he decides to participate, he should be
mindful of these provisions as he determines
the appropriate scope of his participation. It is
the opinion of the Commission that a judge
may participate on the committee for the
“Campaign for Alabama” so long as the
nature of his participation is consistent with
the provisions in Canons 4, 5B and 7A(1).
REFERENCES
Alabama Advisory Opinions 83-192, 82-140,
84-204, 84-216, 95-570, 96-596, 99-732, 00-
747, 00-753 and 01-773.
Alabama Canons of Judicial Ethics, Canons
4, 4A, 4C, 5B, 5B(1), 5B(2), 5B(3), 7A(1) and
7A(3), and Commentary to Canon 4.
Arkansas Advisory Opinion 94-01.
Florida Advisory Opinions 94-01 and 98-14.
Michigan Advisory Opinion JI-46.
WashingtonAdvisoryOpinions98-06and00-
03.
This opinion is advisory only and is based on
the specific facts and questions submitted by
the judge who requested the opinion pursuant
to Rule 17 of the Rules of Procedure of the
Judicial Inquiry Commission. For further
information, you may contact the Judicial
Inquiry Commission, P. O. Box 303400,
Montgomery, Alabama 36130-3400; tel.:
(334) 242-4089; fax: (334) 353-4043; E-mail:
[email protected].