Opinion 127
(This Opinion discusses a prior version of the Canons of Judicial Conduct; the most comparable current rule is 2-3.11 Financial, Business, or Remunerative Activities, Subdivision (B). See also 2-2.1 Giving Precedence to the Duties of Judicial Office.)
Issue:
May a judge (a) receive compensation under a personal service contract from, (b) own shares of stock in, (c) be employed by, (d) serve as an officer of, (e) serve as a director of, a private legal educational service corporation whose revenues are derived in part from sales to government-funded entities? The corporation in question is in the business of production and distribution of educational audio materials on the subject of the common law of the State of Missouri. All revenues are derived from the sale of subscriptions to the service to Missouri lawyers and judges. Prior to assuming the bench, the judge was annually compensated as an employee of the corporation: $12,000.00, health insurance and the use of a car.
Discussion:
Article V, Section 20 of the Constitution of the State of Missouri provides:
In Opinion 84A, the Commission interpreted the language of Article V, Section 20 of the Constitution to mean that “no full-time or part-time judge shall accept payment from the State of Missouri for any public service other than the salary received as a judge.” In Opinion 97, the Commission opined that a judge may receive compensation from a private source for a public service.
In the opinion of the Commission on Retirement, Removal and Discipline, the judge may receive compensation (other than his judicial salary) for a public service so long as that compensation does not come from the State of Missouri.” The Commission’s opinion of what activity qualifies as a “public service” under Article V, Section 20 of the Constitution has depended on the source of payment for such “public service”, rather than the nature of the service performed. As a result, Article V, Section 20 of the Constitution does not prevent the contemplated conduct.
An additional issue is raised by whether the contemplated conduct violates Supreme Court Rule 2, Canon 5C(1) which states:
In Opinion 25, the Commission opined that a judge should not be in the business of selling rock to the state or county highway departments when those departments appear frequently as parties in litigation before the judge.
Additionally, Opinion 118 concerning the extent in which a judge can be involved in a real estate partnership with attorneys determine that “the more extensive financial dealings that exist between the judge and the attorney, the more likely his impartiality might reasonably be questioned.” In the present case the judge would be involved in the business of selling educational law tape recordings.
Inevitably, some attorneys, who appear before the judge, would be customers of the judge’s business while others would not be subscribers. The potential exists for the subscribing attorney to utilize the judge’s tape records in briefs or arguments. Reference to the tapes by a subscribing attorney when debating with the non-subscribing attorney, could create the appearance that the judge’s impartiality is in question.
An additional concern to the Commission with the contemplated conduct is the amount of time which would be devoted to it and the potential that this second employment would detract from the energy and time necessary for the proper performance of judicial duties. The Commission notes that the judge, heretofore, has received a salary of $12,000.00 annually, health insurance and the use of a car for his services to the corporation. While it is not the Commission’s opinion that second employment of a judge is per se improper, in this case, it is the Commission’s opinion that the second employment would detract from the judge’s ability to perform his duties and, therefore, such employment is discouraged.
In summary, it is the opinion of the Commission on Retirement, Removal and Discipline that the judge should not be involved in any of the contemplated conduct.
(Undated)
COMMISSION ON RETIREMENT, REMOVAL AND DISCIPLINE
OPINION 127
Issue:
May a judge (a) receive compensation under a personal service contract from, (b) own shares of stock in, (c) be employed by, (d) serve as an officer of, (e) serve as a director of, a private legal educational service corporation whose revenues are derived in part from sales to government-funded entities? The corporation in question is in the business of production and distribution of educational audio materials on the subject of the common law of the State of Missouri. All revenues are derived from the sale of subscriptions to the service to Missouri lawyers and judges. Prior to assuming the bench, the judge was annually compensated as an employee of the corporation: $12,000.00, health insurance and the use of a car.
Discussion:
Article V, Section 20 of the Constitution of the State of Missouri provides:
No judge shall receive any other or additional compensation for any public service.
In Opinion 84A, the Commission interpreted the language of Article V, Section 20 of the Constitution to mean that “no full-time or part-time judge shall accept payment from the State of Missouri for any public service other than the salary received as a judge.” In Opinion 97, the Commission opined that a judge may receive compensation from a private source for a public service.
In the opinion of the Commission on Retirement, Removal and Discipline, the judge may receive compensation (other than his judicial salary) for a public service so long as that compensation does not come from the State of Missouri.” The Commission’s opinion of what activity qualifies as a “public service” under Article V, Section 20 of the Constitution has depended on the source of payment for such “public service”, rather than the nature of the service performed. As a result, Article V, Section 20 of the Constitution does not prevent the contemplated conduct.
An additional issue is raised by whether the contemplated conduct violates Supreme Court Rule 2, Canon 5C(1) which states:
a judge should refrain from financial and business dealings that tend to reflect adversely on his impartiality, interfere with the proper performance of his judicial duties, exploit his judicial position, or involve him in frequent transactions with lawyers or persons likely to come before the court on which he serves.
In Opinion 25, the Commission opined that a judge should not be in the business of selling rock to the state or county highway departments when those departments appear frequently as parties in litigation before the judge.
Additionally, Opinion 118 concerning the extent in which a judge can be involved in a real estate partnership with attorneys determine that “the more extensive financial dealings that exist between the judge and the attorney, the more likely his impartiality might reasonably be questioned.” In the present case the judge would be involved in the business of selling educational law tape recordings.
Inevitably, some attorneys, who appear before the judge, would be customers of the judge’s business while others would not be subscribers. The potential exists for the subscribing attorney to utilize the judge’s tape records in briefs or arguments. Reference to the tapes by a subscribing attorney when debating with the non-subscribing attorney, could create the appearance that the judge’s impartiality is in question.
An additional concern to the Commission with the contemplated conduct is the amount of time which would be devoted to it and the potential that this second employment would detract from the energy and time necessary for the proper performance of judicial duties. The Commission notes that the judge, heretofore, has received a salary of $12,000.00 annually, health insurance and the use of a car for his services to the corporation. While it is not the Commission’s opinion that second employment of a judge is per se improper, in this case, it is the Commission’s opinion that the second employment would detract from the judge’s ability to perform his duties and, therefore, such employment is discouraged.
In summary, it is the opinion of the Commission on Retirement, Removal and Discipline that the judge should not be involved in any of the contemplated conduct.
(Undated)