| Date: | 12/15/2008 |
|---|---|
| Organization: | Massachusetts Supreme Judicial Court |
After the Committee on Judicial Ethics issued this opinion, the Massachusetts Supreme Judicial Court adopted a revised Code of Judicial Conduct. Because this opinion was rendered under a prior version of the Code, a judge should not rely on it without contacting the Committee on Judicial Ethics.
You are a Trial Court Judge who recently participated in a fundraising walk to raise money for cancer research. Prior to the event, you inquired informally of the Committee whether you might, conformably with the Code of Judicial Conduct, solicit contributions from your fellow judges. You had familiarized yourself with our Opinion 2000-4 before making your request. You were aware that subsequent to the issuance of that Opinion, the Code of Judicial Conduct had been amended.
In Opinion 2000-4, a judge asked whether he could seek funds to support his participation in a charity bike ride. The judge intended to raise his quota of contributions from his own funds and from his relatives and friends who were not lawyers or litigants. Then existing Canon 5(B)(2) provided that a judge should not solicit funds for any educational, religious, charitable, fraternal, or civic organization. We advised the judge that a literal interpretation of that provision might lead to a conclusion that a judge could not solicit from anyone including his own family members. However the Committee concluded that such a restrictive conclusion could not have been what the drafters of the Code intended. We advised the judge that he could solicit funds from members of his family but that all other solicitations were impermissible.
In our informal advice to you, we noted that Section 4(C)(3)(b)(i)of the new Code rewrote the prior Canon5(B)(2) and now provides that "...[a judge] shall not personally participate in the solicitation of funds or other fundraising activities, except that a judge may solicit funds from other judges over whom the judge does not exercise supervisory or appellate authority..."
Based on the revision of the Code, the Committee advised you informally that you could solicit contributions from your judicial colleagues over whom you do not exercise supervisory or appellate authority. We invited you to seek a formal Opinion so that the Committee could issue a public Opinion alerting all judges to the new rule that superseded in part the advice we gave in Opinion 2000-4.
In reliance on that informal advice, you participated in the fundraiser.
After the fundraising event, you requested a formal opinion. You indicated that your judicial colleagues had been generous. You went further in your letter to inquire about the propriety of certain contributions you received from persons who were not your judicial colleagues.
Contribution 1 came from your son's father-in-law and mother-in-law.
Contribution 2 came from your niece (your sister's child).
Both of these contributions came from out of state residents who would never appear before you in Court and all these contributors are considered by you as the equivalent of immediate family. They would not donate because of your position as a judge. For purposes of this Opinion, we assume that Contributors 1 and 2 were among the people from whom you solicited contributions.
The Committee believes that the advice we gave in Opinion 2000-4 concerning contributions from family members applies. Where it is clear that you were not using your judicial office to seek funds from your son's in-laws or your niece, those contributions were permissible under the Code.
Contribution 3 came from a probation officer in your court. This contribution was not solicited by you but apparently the probation officer knew of your walk and voluntarily sent a contribution to the charity through its website. Your letter says that you took steps to keep your webpage on the charity's website private (that is, so that only persons from whom you had solicited a contribution would have access to your webpage). Nevertheless, the donation from the probation officer was received by the charity and acknowledged on your webpage. Since the charity does not permit refunds of contributions, you took it upon yourself to send your personal check to the probation officer to reimburse her for her donation to the charity.
This contribution was, as you have recognized, troublesome. As we said in Opinion 2000-4, people who work in the judicial system should not feel pressured to contribute to a charity favored by a judge. The Committee believes that you handled the matter properly by your explanation to the probation officer that, conformably with the Code, you could not in your judicial position take credit for her unsolicited contribution or give the appearance that you had solicited contributions from the staff of your court. Where the charity would not refund her donation to her, it was appropriate for you to reimburse the probation officer from your own funds.
This donation does raise a separate issue that may potentially affect any future unsolicited donations that may be received by the charity and credited to your fundraising goal. The Committee is aware that many charities raise funds in the manner you have described. Indeed, as of this writing, your webpage on the charity's website is still up and running and a list of your contributors and the amount of their donations is publicly available. It appears that your efforts to make your webpage inaccessible to the public and unavailable to all except but those whom you solicited has been unsuccessful.
The Committee recommends that you make further efforts to take down your webpage or otherwise make it inaccessible to anyone other than those donors whom you properly solicited, that is, family members and judges over whom you do not exercise supervisory or appellate authority.
Contribution 4 was a modest amount from a woman whom you have known in a professional capacity for five years. Unbeknownst to you, apparently she sent a contribution in your name directly to the charity's website. You ask whether more must be done by you in connection with this contribution.
The charitable enterprise that you engaged in was a laudable effort, indeed, a sixty mile walk is a daunting task. In order to make such events successful, obviously, much publicity is necessary. It is not surprising that your participation in the Walk became known beyond the bounds of your family and your judicial colleagues. Because this contribution was not solicited by you and because the donor was not a court employee or lawyer or litigant, the Committee is of the opinion that you need not reimburse her for her unsolicited contribution.
In sum, the contribution 1 and 2 from family and judicial colleagues were proper. Contribution 3 from the probation officer, in accordance with our advice in Opinion 2000-4 was properly returned. Because you did not solicit a contribution from the donor of Contribution 4, the Committee does not believe that any further action is required on your part as to that particular donation.
Finally, to avoid any further contributions being made by persons who may feel a desire to contribute based on your position as a judge, you should take down your webpage or otherwise make it publicly inaccessible. Allowing your name to be placed on the website creates a risk that individuals other than the small pool of individuals from whom the judge may solicit will also see and contribute on the judge's behalf. Consequently judges should make every effort to prevent a fundraising website containing their name from being made publicly available for fundraising purposes and, if the effort is unsuccessful, they should not permit their name to appear on the site.
