Opinion 96A
(This Opinion discusses a prior version of the Canons of Judicial Conduct; the most comparable current rule is 2 2.13 Administrative Appointments, Subdivision (A).)
Issue:
May a judge appoint a retired judge as a commissioner in condemnation proceedings, as a guardian ad litem, appraiser, referee, trustee or attorney for an indigent? Secondly, may the judge appoint a member of the General Assembly to the listed assignment?
Discussion:
As to appointing a retired judge, Supreme Court Rule 2, Canon 3(b)(4) states as follows:
The issue becomes whether appointing a retired judge is an exercise in favoritism.
In the opinion of the Commission on Retirement, Removal and Discipline, the mere appointment of a retired judge to any of the listed assignments does not of itself indicate favoritism. Retired judges should be considered on equal terms as any member of the Bar. Accordingly, such appointment should be spread evenly over the members of the Bar who are qualified and able to accept the appointments. Retired judges are entitled to a fair share of these appointments.
It should also be noted that a retired judge who receives retirement compensation may accept the above stated appointment and practice law in accordance with V.A.M.S. 476.510 dated September 1, l983.
As to the appointment of legislators to the listed assignments, the Commission’s opinion regarding Canon 3(b)(4) is the same. The mere appointment of a legislator to any of the listed assignments does not of itself indicate favoritism and is not violative of Supreme Court Rule 2 Canon 3(b)(4). However, Article III, Section 12 of the Constitution of the State of Missouri and V.A.M.S. 105.456, Section I, Subsection (1) states:
Whether such appointments are violative of the Constitution and V.A.M.S. 105.456 and thereby in violation of the Code of Judicial Conduct, is a determination which must be made by the Courts or the Attorney General’s Office. The Commission declines to give its opinion in this regard.
(Dated: November 11, l983)
COMMISSION ON RETIREMENT, REMOVAL AND DISCIPLINE
OPINION 96A
Issue:
May a judge appoint a retired judge as a commissioner in condemnation proceedings, as a guardian ad litem, appraiser, referee, trustee or attorney for an indigent? Secondly, may the judge appoint a member of the General Assembly to the listed assignment?
Discussion:
As to appointing a retired judge, Supreme Court Rule 2, Canon 3(b)(4) states as follows:
A judge should not make unnecessary appointments. He should exercise his power of appointment only on the basis of merit, avoiding nepotism and favoritism. He should not approve compensation of appointees beyond the fair value of services rendered.
The issue becomes whether appointing a retired judge is an exercise in favoritism.
In the opinion of the Commission on Retirement, Removal and Discipline, the mere appointment of a retired judge to any of the listed assignments does not of itself indicate favoritism. Retired judges should be considered on equal terms as any member of the Bar. Accordingly, such appointment should be spread evenly over the members of the Bar who are qualified and able to accept the appointments. Retired judges are entitled to a fair share of these appointments.
It should also be noted that a retired judge who receives retirement compensation may accept the above stated appointment and practice law in accordance with V.A.M.S. 476.510 dated September 1, l983.
As to the appointment of legislators to the listed assignments, the Commission’s opinion regarding Canon 3(b)(4) is the same. The mere appointment of a legislator to any of the listed assignments does not of itself indicate favoritism and is not violative of Supreme Court Rule 2 Canon 3(b)(4). However, Article III, Section 12 of the Constitution of the State of Missouri and V.A.M.S. 105.456, Section I, Subsection (1) states:
No person holding any lucrative office or employment under The United States, this state or any municipality thereof shall hold the office of senator or representative. When any senator or representative accepts any office or employment under the United States, this state or any municipality thereof, his office shall thereby be vacated and he shall thereafter perform no duty and receive no salary as senator or representative. During the term for which he was elected no senator or representative shall accept any appointive office or employment under this state which is created or the emoluments of which are increased during such term. This section shall not apply to members of the organized militia, of the reserve corps and of school boards, and notaries public. Mo. Const. 1945, Art. 3, Sec. 12
1. No member of the general assembly or the governor, lieutenant governor, attorney general, secretary of state, state treasurer or state auditor shall:
(1) Perform any service for the state or any political subdivision of the state or any agency of the state or any political subdivision thereof for any consideration other than the compensation provided for the performance of his official duties." V.A.M.S. 105.456
Whether such appointments are violative of the Constitution and V.A.M.S. 105.456 and thereby in violation of the Code of Judicial Conduct, is a determination which must be made by the Courts or the Attorney General’s Office. The Commission declines to give its opinion in this regard.
(Dated: November 11, l983)