Opinion 176
(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).)
Issue:
May a judge accept a plea bargain if the judge knows that a precondition to the recommendation is payment of money to a specific charity, the county treasury or a “county crime reduction fund?" The judge is aware that the payment has been made and the reason for the recommendation but is not asked to make payment part of the sentence or condition of probation.
Discussion:
The Commission has previously reviewed the issue of plea agreements involving payments of charities or government funds not authorized by statute or ordinance in Opinion 172 and Opinion 173. The issue here is whether the judge can avoid the application of those opinions so long as the payment is made to the charity or fund with the judge’s knowledge but without the judge’s approval or involvement.
Opinion 172 dealt with the State judge’s approval of a plea agreement involving payments into the “county crime reduction fund” and held:
In the opinion of the Commission on Retirement, Removal and Discipline, absent a state statute or constitutional provision to the contrary, a judge’s acquiescence in a plea agreement which would divert monies paid as a consequence of violations of the law from schools and instead require the monies to be paid to charity or funds set up by municipal or county ordinances is violative of the Code of Judicial Conduct in that it creates an appearance of impropriety and indicates the judge has not been faithful to the law.”
Opinion 173 expanded the application of Opinion 172 to include part-time or full-time municipal judges. Both Opinion 172 and Opinion 173 refer to the proscriptions of Canon 2 “which prohibits creating the appearance of a ‘payoff’ as found in the case Matter of Storie” (Opinion 173 citing Matter of Storie, 574 SW2d 369 (Mo banc 1978).
Even though the judge does not impose a charitable or civic payment as part of the sentence or condition of probation, when the judge knows such a payment is a precondition to receiving the recommendation, the appearance of a “payoff” remains. The judge has the obligation to review the plea agreement and exercise discretion in a manner so as not to create the appearance of a “payoff." The judge should not approve such a plea bargain absent an ordinance, statute or constitutional provision authorizing such payments.
(Dated: August 25, 2000)
COMMISSION ON RETIREMENT, REMOVAL AND DISCIPLINE
OPINION 176
Issue:
May a judge accept a plea bargain if the judge knows that a precondition to the recommendation is payment of money to a specific charity, the county treasury or a “county crime reduction fund?" The judge is aware that the payment has been made and the reason for the recommendation but is not asked to make payment part of the sentence or condition of probation.
Discussion:
The Commission has previously reviewed the issue of plea agreements involving payments of charities or government funds not authorized by statute or ordinance in Opinion 172 and Opinion 173. The issue here is whether the judge can avoid the application of those opinions so long as the payment is made to the charity or fund with the judge’s knowledge but without the judge’s approval or involvement.
Opinion 172 dealt with the State judge’s approval of a plea agreement involving payments into the “county crime reduction fund” and held:
In the opinion of the Commission on Retirement, Removal and Discipline, absent a state statute or constitutional provision to the contrary, a judge’s acquiescence in a plea agreement which would divert monies paid as a consequence of violations of the law from schools and instead require the monies to be paid to charity or funds set up by municipal or county ordinances is violative of the Code of Judicial Conduct in that it creates an appearance of impropriety and indicates the judge has not been faithful to the law.”
Opinion 173 expanded the application of Opinion 172 to include part-time or full-time municipal judges. Both Opinion 172 and Opinion 173 refer to the proscriptions of Canon 2 “which prohibits creating the appearance of a ‘payoff’ as found in the case Matter of Storie” (Opinion 173 citing Matter of Storie, 574 SW2d 369 (Mo banc 1978).
Even though the judge does not impose a charitable or civic payment as part of the sentence or condition of probation, when the judge knows such a payment is a precondition to receiving the recommendation, the appearance of a “payoff” remains. The judge has the obligation to review the plea agreement and exercise discretion in a manner so as not to create the appearance of a “payoff." The judge should not approve such a plea bargain absent an ordinance, statute or constitutional provision authorizing such payments.
(Dated: August 25, 2000)