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(This Opinion discusses a prior version of the Canons of Judicial Conduct; the most comparable current rules are 2-1.1 Compliance with the Law; 2-1.2 Promoting Confidence in the Judiciary; and 2-3.7 Participation in Educational, Religious, Charitable, Fraternal or Civic Organizations and Activities, Subdivision (A)(1).)

COMMISSION ON RETIREMENT, REMOVAL AND DISCIPLINE

OPINION 173

Issue:

A.  Does Opinion 172 apply to part-time or full-time municipal court judges?

 

B.  Does Opinion 172 apply to conditions of probation involving the payment of restitution to victims or the performance of free work for public or charitable purposes?

 

C.  Does Opinion 172 apply in state or municipal cases involving a suspended imposition of sentence?

 

Discussion:

 

In Opinion 172 the Commission determined that a judge “should not impose as a condition of probation payments to the county treasury, a county crime reduction fund or a specified charity absent a state statute or constitutional provision authorizing such payments.” As authority, the Commission cited Article IX, Section 7, of the Constitution and the case Matter of Storie, 574 SW2d 369 (Mo. banc 1978).

The issue of whether a judge can impose conditions of probation that require payments into charitable organizations or some type of county fund has been examined in several jurisdictions. The Minnesota Board of Judicial Standards issued a 1984 opinion holding that a judge in criminal case may not order a defendant to pay money to a charity or charitable institution either directly or as part of a plea agreement. In the case In the Matter of Davis, 946 P.2d 1033 (Nevada 1997), a judge was disciplined in part for directing or suggesting to persons appearing in the judge’s court who had been found guilty to contribute money to certain charities in lieu of paying fines to the city thereby diverting money from the city treasury. In addition, there is following language from the opinion of state judicial performance commission:

A judge may not impose sentences requiring criminal defendants to pay monies that are allocated to educational, religious, charitable, fraternal, or civic activities, unless the sentencing practice has been authorized by law .... A sentencing program by which a judge requires parties to pay monies which are allocated to charitable/civic purposes is akin to a ‘solicitation’ by the judge for that charitable/civic activity and contravenes MCJC 5B. A sentencing program, no matter how laudable the goals, that uses the power of the judicial office to solicit monies is conduct prejudicial to the administration of justice. Michigan Advisory Opinion JI-55 (1992).

 

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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 ….

 

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 by 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 contribution 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 are unable to find any authority in law which allows the sentencing practices described. Michigan Advisory Opinion JI-48 (1992).

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In finding that a judge may not require defendants in a criminal case to pay certain sums of money directly to a charity named by the judge as part of the sentence imposed, the Florida Committee on Standards of Conduct Governing Judges held:

 

Canon 5B prescribed the charitable activities that a judge may undertake and precludes a judge from soliciting funds or permitting the use of the prestige of his office for that purpose. One member also notes the involvement of the general prohibition of Canon 2B and writes:

 

I perceive a potential violation of Canon 2B, Code of Judicial Conduct. The power to control the pocketbook of another person so as to cause him to taken [sic] that which is his own and give it to another is an awesome power, it is tantamount to the authority to tax. If a judge exercises this power in such a way as to convey the impression that he is advancing the private interest of a particular charity, he may be improperly lending the prestige of his office to that charity. This may reflect adversely upon the impartiality and integrity of the judge. 

 

Both Canon 2B and Canon 5B condemn the use by a judge of the prestige of his office for the advancement of private interests, although Canon 5B is more specifically directed toward charitable private interests. In this case, it is not the prestige alone which is being used but the power of the judicial office in imposing a charitable contribution requirement as part of a sentence, and the infringement of the Canons is clear. 

Florida Advisory Opinion 84-11.

 

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In the present case, criminal defendants, as part of a plea agreement, contribute to a designated fund.  Ostensibly, in return, they are allowed to enter an agreement with the State; the contribution then goes to further the efforts of the office which entered the agreement on behalf of the State.  This is not dissimilar to the practice examined by the Supreme Court of Missouri in a case involving contributions by criminal defendants to a “Library Fund.”  Matter of Storie, 574 SW2d 369 (Mo. 1978). The Court concluded that even though there was no evil intent on the part of  the judge, "the practical effect to the public is that of a 'pay-off.'" The judge was temporarily suspended from office. The members of the Commission are of the opinion that the above described victim fund program does suggest decisional favor predicated on financial contribution. Accordingly, the Commission is of the further opinion that a judge would violate Canon 2 of the Code of Judicial Conduct by permitting plea agreements of this nature.

Indiana Judicial Nominating Commission, Indiana Commission on Judicial Qualifications (December 16, 1986).

 

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In the opinion of the Commission there are three grounds for prohibiting the imposition of conditions of probation which would require payments into civic or charitable organizations:

1.  As outlined in Opinion 172, Article IX, Section 7, of the Constitution of the State of Missouri requires that proceeds of penalties for any breach of the penal laws of the state to be paid to schools;

 

2.  The appearance that, by imposing such conditions of probation, the judge is involved in fundraising in violation of Canon 4;

 

3.  The appearance that a decisional favor is predicated on a financial contribution as in the case of Matter of Storie, in violation of Canon 2.

In response to the three specific issues the Commission’s opinion is as follows:

A.  Municipal judges, whether full-time or part-time, do not handle state cases and as such fine money is disbursed according to the appropriate municipal ordinance. Article IX, Section 7, of the Constitution of the State of Missouri has no application to municipal judges. Secondly, part-time municipal judges are not bound by the proscriptions of Canon 4, and as such are allowed to engage in fund raising. Full-time municipal judges on the other hand, are bound by Canon 4, and thus any condition of probation requiring payment to a civic or charitable organization would be violative of the Code of Judicial Conduct unless such payments were authorized by municipal ordinance. Finally, both part-time and full-time municipal judges are bound by the proscriptions of Canon 2, which prohibits creating the appearance of a “payoff” as found in the case Matter of Storie. Accordingly, conditions of either the full-time or part-time municipal judge unless authorized by a statute or ordinance.

 

B.  Section 559.021 provides that a judge may impose as a condition of probation:

(1) restitution to the victim or any dependant of the victim, in an amount to be determined by the judge; and

(2) the performance of a designated amount of free work for a public or charitable purpose or purposes, as determined by the judge.

In addition, VAMS Section 559.021(2) in pertinent part provides: “… the court may order such conditions as the court believes will serve to compensate the victim, any dependent of the victim, or society.”  The Commission does not interpret the words “or society” to override the language of Article IX, Section 7, of the Constitution of the State of Missouri or the prohibitions in Supreme Court Rule 2, Canons 2 and 4, against fund raising and creating the appearance of impropriety.[1]

On the other hand, nothing in Opinion 172 or this Opinion 173 is meant to prohibit the conditions of probation specifically authorized by VAMS Sections 559.021(1) and (2). That is, a judge may continue to order restitution to the victim and the performance of free work for a public or charitable purpose.

C.  Since cases disposed of through a suspended imposition of sentence involve a finding of guilt and a penalty for the breach of the penal laws of the State, Article IX, Section 7 of the Constitution would seem to apply.  In addition, the issues of whether a judge is involved in fund raising applies to full-time judges and all judges, full-time and part-time, are subject to the proscriptions of Canon 2. Thus, a suspended imposition of sentence is subject to Opinion 172.

(Dated: March 2, 1999)