Can a Michigan judge set the 'bail' amount in a Jail-and-Bail or Lockup-for-Charity fundraising event?

Plain-English summary

The opinion addressed charity fundraisers in which volunteers are humorously "arrested" and held until they raise pledges equal to a "bail" amount set by a "judge." Public officials and leading citizens are often involved, and a local judge may be asked to converse with the voluntary prisoner and set the bond, while the prisoner, not the judge, contacts donors. The opinion applied MCJC 5B(2), which bars a judge from individually soliciting funds for a charitable, educational, religious, fraternal, or civic organization or lending the prestige of office to that purpose, while permitting a board listing or a general appeal.

The opinion concluded that this kind of fundraiser constitutes a direct solicitation and gives the appearance of using the judicial office to lend prominence and publicity to the proceedings, even though the event is humorous. It cited JTC A/O 69 (the Great American Lockup) and JI-3, which stress that a judge may not individually solicit funds or use the prestige of office in a solicitation, and contrasted the more neutral participation MCJC 5B contemplates (a name on a charity board, a general appeal) and J-1's allowance of a judge's name in charity literature so long as the judge is not the sole name and not linked directly to the solicitation.

The opinion concluded that here, by contrast, the judge stands out as the sole individual setting a personalized "bail" or "bond" amount for donations, which is direct solicitation. It was particularly troubled that lawyers, prosecutors, and police officials might be brought before a judge with whom they have official dealings. The opinion therefore concluded a judge may not participate where the primary involvement is to set the target amount to be raised as "bail."

Currency note

This opinion was issued in 2001, before Michigan's 2002 adoption of the Ethics 2000 revisions to its Rules of Professional Conduct, and it interprets the Michigan Code of Judicial Conduct as it then stood, including reliance on J-1, which the committee later withdrew. The Code of Judicial Conduct has been amended since. Treat this page as historical context, not current guidance. Verify against the current Code of Judicial Conduct before relying on any specific rule mentioned here.

Common questions

Q: Can a Michigan judge set 'bail' amounts at a charity Jail-and-Bail event?

A: The opinion concluded a judge may not, because setting the target amount a person must raise is a direct solicitation of charitable funds.

Q: Does it matter that the prisoner, not the judge, contacts donors?

A: The opinion concluded it does not; the judge's role in setting a personalized donation amount is itself a direct solicitation and uses the prestige of office.

Q: What charitable participation does the Code allow?

A: The opinion noted MCJC 5B(2) allows a judge to be listed as an officer, director, or trustee, to join a general appeal, or to speak on behalf of the organization, but not to individually solicit.

Q: Why is the official-dealings concern significant?

A: The opinion was troubled that lawyers, prosecutors, and police who appear before or have official relations with the judge might be brought before the judge in the event.

Background and rules framework

The opinion interpreted MCJC 5B(2) of the Michigan Code of Judicial Conduct (and its predecessor MCJE 25) on a judge's solicitation of charitable funds. It relied on prior opinions JI-3, J-1, and Judicial Tenure Commission advisory opinion A/O 69 (cited as OP-69).

Citations and references

Code of Judicial Conduct (as cited):

• MCJC 5B(2) (a judge should not individually solicit funds; may join a general appeal)

Other opinions cited:

• Michigan JI-3: a judge may not individually solicit charitable funds
• Michigan J-1: limited use of a judge's name in charity literature
• JTC A/O 69 (OP-69): the Great American Lockup as individual solicitation

See also

• Mich Judicial Ethics Op. JI-3: door-to-door charitable solicitation by a judge
• Mich Judicial Ethics Op. JI-115: a judge attending a political party's testimonial fundraiser

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=834&Type=6

Original opinion text

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

JI-125

April 20, 2001

SYLLABUS

A judge may not participate in a fundraiser commonly referred to as "Jail and Bail," "The Great American Lockup" or a "Lockup for Charity," where the primary involvement of the judge is to set an amount of money that constitutes a target amount for an individual to pay or try to raise as "bail."

Where the purpose of a judge's involvement is to determine the amount of money to be paid to a charitable organization by donors, such involvement constitutes a direct solicitation for the charity and is not permitted.

References: MCJC 5B(2), JI-3, OP-69.

TEXT

A charitable organization may hold an annual fundraiser sometimes called a "Jail and Bail," The Great American Lockup" or "Lockup for Charity," whereby a charitable organization recruits volunteers to be "arrested" and held in order to call friends and associates who would pledge donations which must equal the bail amount set by a "judge." In some instances, the events surrounding this humorous type of charitable fundraiser are reported on local TV, radio and in newspapers and often become the subject of television news broadcasts.

Often, actual public officials and leading citizens are involved. A sheriff, police chief or prosecutor may prepare humorous charges against the "prisoner" and take the individuals into voluntary custody to serve as the subject of the "bail" setting. In some instances the voluntary prisoner is brought before a local judge who is to set a "bond" which is the amount of pledges or donations necessary for the person to be released. The involvement of a local judge is to engage in a conversation with the voluntary prisoner and determine the amount of bond. However, the local judge does not personally solicit the funds by contacting potential donors, since that is the "prisoner" duty. The Michigan Code of Judicial Conduct would be applicable. MCJC 5B states:

"A judge should not individually solicit funds for any educational, religious, or charitable, fraternal, or civic organization, or use or permit the use of the prestige of office for that purpose, but may be listed as an officer, director, or trustee of such an organization. A judge may, however, join a general appeal on behalf of an educational, religious, charitable, or fraternal organization, or speak on behalf of such organization."

The scenario of this type of fundraising has been found to constitute a direct solicitation and give the appearance of the judicial office being used to give prominence and potential publicity to the proceedings. The proceedings themselves are, of course, taken in a humorous light, however the individuals brought before the judge, albeit voluntarily, are often citizens, public officials, or professionals, including lawyers who may have official dealings with the judge.

"The Great American Lockup" was the subject of a prior Advisory Opinion where the issue was whether a judge might serve on the board of the American Cancer Society when soliciting the participation of community leaders to participate in the event gave raise to the appearance of using the position of the judge's office to obtain cooperation. JTC A/O 69.

A further analysis of this same basic concept of a judge's participation in solicitation of funds is found in JI-3 that stresses that a judge may not individually solicit funds for any educational, religious, charitable, fraternal or civic organization. A judge shall not use the prestige of the judicial office in the course of a solicitation.

Further, the participation of the judge is much more removed from the more neutral participation envisioned under MCJC 5B and its predecessor, MCJE 25, where the involvement of the judge in a general sense is by simply providing his or her name for a neutral listing on a charity board or general speaking on behalf of the charity. See also J-1.

The most significant prior interpretation of a judge's participation in charitable actives is found in J-1. Significantly, J-1 speaks to the acceptability of more benign use of a judge's name in charitable organization literature and provides that as long as the judge is not the sole name and that the judge's name is not linked directly with the solicitation, the activity is permitted. However, in contrast the situation presented here, a judge stands out as the sole individual who is setting a "bail" or "bond" amount for donations that would be personalized to the voluntary prisoner.

Particularly troublesome is the potential that lawyers, prosecutors and police officials may be caught up in the fundraising effort and be brought before the judge whom they may be actively appearing, or with whom they have an official relation.

A judge may not participate in a fundraiser commonly referred to as "Jail and Bail," "The Great American Lockup" or a "Lockup for Charity," where the primary involvement of the judge is to set an amount of money which constitutes a target amount for an individual to pay or try to raise as "bail." Where the purpose of the judge's involvement is to determine the amount of money to be paid to a charitable organization by donors, such involvement constitutes a direct solicitation for the charity and is not permitted.