Can a judge let offenders choose between performing community service hours or paying money to a charity the judge picks?

Plain-English summary

The opinion addressed a multiple-judge district court whose judges, in addition to jail, fines, and costs, gave offenders the option of either performing a set number of community service hours or making a cash contribution to a charity designated by the sentencing judge. Charities were selected randomly, with no written eligibility criteria, no verification of tax-exempt status, and no check on whether a judge was personally affiliated with a designated charity. The donation amount was set by the judge (one used $5.00 per hour, another the offender's hourly wage), payments went into a county "restitution" account, and disbursement checks went to the charities with a cover letter from the sentencing judge describing the program.

The Committee read MCJC 5B as allowing a judge to participate in civic and charitable activities but barring a judge from personally soliciting funds or using the prestige of office for that purpose. Earlier opinions had recognized a range of permitted charitable involvement short of solicitation (JI-9, JI-33, J-1), but the underlying rationale was that soliciting for charity raises the suspicion that the judge is using the power of office to persuade or coerce contributions. The Committee reasoned that if judges may not solicit for charity, they likewise may not direct contributions by requiring offenders to donate to judge-designated charities in lieu of community service.

The Committee added that the practice left the judge open to the accusation that the community-service alternative was made intentionally burdensome to encourage monetary contributions, and that imposing dollars-for-hours discriminates in favor of more affluent offenders who can buy out of service. Citing MCJC 3A(9) (judges should adopt usual and accepted methods of doing justice and avoid discipline not authorized by law) and In re Merritt, 431 Mich 1211 (1988), where the Michigan Supreme Court censured a judge whose fund gave the appearance of using judicial power to solicit money, the Committee found no legal authority for the described sentencing practice.

Currency note

This opinion was issued in 1992 and interprets the Michigan Code of Judicial Conduct as it then stood. The MCJC has since been amended (the State Bar flags amendments effective August 1, 2013 to Canons 2, 4, 5, and 7, among other revisions), and later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a judge let an offender pay a charity instead of doing community service?

A: Per the opinion, no, not when the judge designates the charity. The Committee concluded such an option functions as judicial solicitation of funds and contravenes MCJC 5B.

Q: Why is offering a cash alternative to community service a problem?

A: The opinion reasoned the practice leaves the judge open to the charge that the service alternative was made deliberately burdensome to push donations, and that it discriminates in favor of affluent offenders who can buy out of service.

Q: What authority did the Committee rely on?

A: The opinion relied on MCJC 5B and 2C (solicitation and prestige of office), MCJC 3A(9) (sentencing not authorized by law), prior opinions JI-9, JI-33, and J-1, and In re Merritt, 431 Mich 1211 (1988).

Background and rules framework

The opinion interprets the Michigan Code of Judicial Conduct: MCJC 5B (charitable and civic activities; no personal solicitation of funds), MCJC 2C (prestige of office), and MCJC 3A (faithful application of the law and accepted methods of sentencing, MCJC 3A(9)). It draws on prior opinions JI-9, JI-33, and J-1 on the line between permitted charitable involvement and prohibited solicitation, and on the Michigan Supreme Court's decision in In re Merritt.

Citations and references

Rules of Judicial Conduct:

• MCJC 2C (prestige of office)
• MCJC 3A; MCJC 3A(9) (methods of sentencing; discipline not authorized by law)
• MCJC 5B; MCJC 5B(2) (charitable/civic activities; no solicitation of funds)

Other opinions cited:

• J-1 (judicial participation in charitable causes without personal solicitation)
• JI-9 (testimonial dinner in judge's honor benefiting charity)
• JI-33 (organization of judges retaining a non-judge to solicit funds)

Cases:

• In re Merritt, 431 Mich 1211 (1988), public censure for a fund giving the appearance of using judicial power to solicit money

See also

• Mich Ethics Op. JI-55: Charitable Sentencing Payments
• ABA Formal Op. 08-452: Judges Fundraising for Problem-Solving Courts
• ABA Formal Op. 490: Judges Collecting Court Debts

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=757&Type=6

Original opinion text

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

JI-48

March 10, 1992

SYLLABUS

A sentencing judge may not give offenders the option of performing a designated number of hours of community service work or making a monetary contribution to a charity designated by the judge.

References: MCJC 2C, 3A, 5B(2); J-1; JI-9, JI-33; In re Merritt, 431 Mich 1211 (1988).

TEXT

In addition to traditional penalties of jail time, fines and costs, a judge of a multiple judge district court gives offenders the option of either performing a designated number of hours of community service work or making a cash contribution to a charity designated by the judge. Each participating judge randomly selects charities to be included in the program; there is no written policy identifying criteria for charities to become eligible to receive funds. The number of organizations vary from judge to judge, there is no independent verification of whether a designated charity is a qualified tax exempt organization, and it is unknown whether a judge is personally affiliated with the designated charity.

The sum of money paid by the offender in lieu of performing community service work is set by the sentencing judge. One participating judge sets the amount of the donation at $5.00 per hour. Another participating judge uses the offender's actual hourly wage rate. Payments may be made over time, if requested. All donations are paid into the court clerk's office and deposited into a county "restitution" account. Disbursements are made randomly each calendar quarter to the charities selected by the sentencing judges. At a sentencing judge's direction, the checks are sent to the charities with a cover letter from the sentencing judge describing the program and fund distribution.

The issue presented is whether or not the sentencing practice utilized by the district court judges violates ethics rules.

MCJC 5B is relevant and states:

"B.Civic and Charitable Activities: 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. A judge may serve as an officer, director, trustee, or non-legal advisor of a bona fide educational, religious, charitable, fraternal, or civic organization, subject to the following limitations:

"(1) A judge should not serve if it is likely that the organization will be engaged in proceedings that would ordinarily come before him or will be regularly engaged in adversary proceedings in any court.

"(2) A judge should not individually solicit funds for any educational, religious, charitable, fraternal, or civic organization, 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. 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."

This rule clearly says that a judge may not personally solicit funds for any civic/charitable organization, nor use the prestige of judicial office for the private interests of the organization or solicitation purposes. See also MCJC 2C.

In previous opinions the Committee has held that not all judicial activities associated with fund-raising are proscribed. Short of solicitation or permitting the judge's name to be used in solicitations, there is a realm of activity in which the judge may participate in the charitable/civic life of the community. For example, a judge may attend a testimonial dinner held in the judge's honor by a charitable or civic organization where the proceeds of the dinner are donated to a charitable or civic cause. See JI-9. In JI-33, the Committee ruled that an organization of judges may retain a non-judge executive director to solicit funds for the organizations' charitable and educational activities. Judges are permitted to participate in a walk-a-thon, telethon or other charitable causes so long as the judge does not personally solicit contributions, sponsors or other participants and the judge does not allow others to use the prestige of the judicial office to coerce donations. See J-1.

Underlying the prohibition against judicial solicitation is the notion that it is not ordinarily possible to solicit without raising the suspicion that the judge is using the power and prestige of judicial office to persuade or coerce others to contribute. No matter how well intentioned, the work of solicitation for charitable purposes is better left to persons other than those who occupy the bench. The rule is not limited to solicitation for charity but applies equally to civil, ecclesiastical and other philanthropic enterprises.

If judges are forbidden to solicit for charity, clearly judges cannot direct contributions by requesting or requiring offenders to donate contributions in lieu of fine or jail time to charities designated by the judge. Just because the option of making cash contributions to the court's charity in lieu of performing a certain number of hours of community service work is in addition to the more traditional sentences of time and fine does not make the sentencing practice any more acceptable. The sentencing judge is left open to the accusation that a particular community service alternative is intentionally more burdensome than required in order to encourage monetary contributions to the judge's charity. The judicial imposition of dollars for hours also discriminates in favor of those more affluent offenders who have the means to buy out of community service work.

We further note that MCJC 3A(1) provides a judge should be faithful to the law in performing adjudicative responsibilities. MCJC 3A(9) states:

"A judge should adopt the usual and accepted methods of doing justice; avoid the imposition of humiliating acts or discipline, not authorized by law in sentencing and endeavor to conform to a reasonable standard of punishment and not seek popularity or publicity either by exceptional severity or undue leniency."

We are unable to find any authority in law which allows the sentencing practices described.

In In re Merritt, 431 Mich 1211 (1988), a judge opened a checking account denominated as the "HELP Fund" account over which the judge had signatory power. The Fund had for its original purpose the assistance of indigent drug and alcohol abusers. The funds in the account came from a variety of sources, including fines imposed by the judge against attorneys for late filings, tardy appearances and failure to appear on court dates. Citing to the Michigan Constitution 1963, art 6, Sec 30, MCR 9.104(4), and MCJC 1, 2A and 3A(9), the Court found that the judge's conduct, whether well-intentioned or not, gave the appearance of using the power of judicial office to solicit moneys, and the conduct constitutes misconduct in office clearly prejudicial to the administration of justice. The Court ordered a public censure of the judge.