Could a judge participate in a family nonprofit selling his gospel music recordings for charity?

Plain-English summary

A circuit judge and family members had formed a nonprofit corporation to sell recordings of his gospel music and use proceeds for charitable purposes. He said the temporary website no longer showed him in judicial robes or identified his judicial position.

The Committee found nothing in the Code that prohibited the described activities if the judge complied with its other provisions. It discussed then-applicable Canon 4(C)(3) on service with nonprofit organizations and reminded the judge that permissive language did not remove other Code limits.

In particular, the opinion cited Canon 2(B)’s prohibition on lending the prestige of judicial office to private interests and Canon 4(A)(3)’s concern with interference with judicial duties.

In practice

The opinion allows only the activities described and conditions that answer on compliance with the other provisions of the Code. It does not approve using the judicial office to promote the corporation.

Common questions

Q: Did the Committee forbid the family nonprofit outright?

A: No. It found no prohibition on the described activities, subject to the Code’s other requirements.

Q: Did removing robe photos and judicial references matter to the facts?

A: The judge reported that he had removed both from the temporary website; the Committee gave its answer on the activities as described.

Background and rules framework

The opinion discusses Arkansas Code of Judicial Conduct Canons 4(C)(3), 2(B) and 4(A)(3) as they applied when the opinion issued in January 2009.

Citations and references

• Arkansas Code of Judicial Conduct Canons 4(C)(3), 2(B) and 4(A)(3), as cited in the opinion.

See also

No sibling opinions yet indexed.

Source

• Landing page: https://jddc.arkansas.gov/opinions/opinion-no-2009-02/

Original opinion text

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

January 13, 2009

The Honorable L. T. Simes, Il

Circuit Judge

Post Office Box 2595

Batesville, Arkansas 72503-3821

Re: 2009-02 Dear Judge Simes:

Your request for an advisory opinion stated that you, your wife and son have organized an Arkansas non-profit corporation, Holy Spirit 777, Inc., and that a central purpose of this organization is to sell recordings of your gospel music and to use the funds for charitable purposes through the non-profit corporation. You stated that you have set up a "temporary" website at http://holyspirit.sciberus.com and that you have removed from the site all photographs of you in your judicial robe and all references to your position as Circuit Judge.

Canon 4(C)(3) states as follows:

(3) A judge may serve as an officer, director, trustee or non-legal advisor of an organization or governmental agency devoted to the improvement of the law, the legal system or the administration ofjustice or of an educational, religious, charitable. fraternal or civic organization not conducted for profit. subject to the following limitations and the other requirements of this Code. (Emphasis supplied)

(a) A judge shall not serve as an officer, director, trustee or non-legal advisor if it is likely that the organization

(i) will be engaged in proceedings that could ordinarily come before the judge, or

(ii) will be engaged frequently in adversary proceedings in Tower Building • 323 Center Street • Suite 1060 • Little Rock, AR 72201 • (501) 682-1050 the court of which the judge is a member or in any court subject to the appellate jurisdiction of the court or which the judge is a member.

Commentary:

The changing nature ofsome organizations and oftheir relationship to the law makes it necessaryfor a judge regularly to reexamine the activities ofeach organization with which the judge is affiliated to determine ifit is properfor thejudge to continue the affiliation. For example, in manyjurisdictions charitable hospitals are now more frequently in court than in the past. Similarly, the boards ofsome legal aid organizations now make policy decisions that may have political significance or imply commitment to causes that may come before the courtsfor adjudication.

(b) A judge as an officer, director, trustee or non-legal advisor, or as a member or otherwise:

(i) may assist such an organization in planning fimd-raising and may participate in the management and investment of the organization's funds, but shall not personally participate in the solicitation of funds from other judges over whom the judge does not exercise supervisory or appellate authority;

(ii) may make recommendations to public and private fundgranting organizations on projects and programs concerning the law, the legal system or the administration ofjustice;

(iii) shall not personally participate in membership solicitation if the solicitation might reasonably be perceived as coercive or, except as permitted in Section 4C(3)(b)(i), if the membership solicitation is essentially a fund-raising mechanism;"

We find nothing in the Code that would prohibit you from engaging in the activities you have described as long as you comply strictly with the other provisions of the Code. You are reminded that the use of permissive language does not relieve a judge from the other requirements of the Code that apply to the specific conduct. For instance, Canon 2(B) provides that a judge shall not lend the prestige ofjudicial office to advance the private interests of the judge or others. Your engaging in these permissive activities requires you to be ever diligent in seeing to it that in so doing you never violate any other provisions of the Code, for instance interfering with the proper performance ofjudicial duties. Canon 4 A (3).

Edwi B. Alderson

For the Committee