Opinion 180
(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 allow a condition of probation or of a plea bargain requiring donations to a county school fund in lieu of a fine?
Discussion:
The Commission has issued a series of Opinions (172, 173 and 176) dealing with the questions pertaining to the imposition of conditions of probation requiring donation in lieu of fines:
In Opinion 176 concerning the issue of whether a judge can allow such payment if it is a precondition to a plea bargain, the Commission held:
The question now before the Commission is whether the appearance of a “payoff” is avoided by making the donation to the same fund (the county school fund) that receives fine money pursuant to Article IX, Section 7 of the Missouri Constitution. The pertinent language of Article IX Section 7 of the Missouri Constitution provides that ... the clear proceeds of all penalties, forfeitures and fines ... shall be distributed to the county school fund. The Commission notes that there is no specific mention in Article V, Section 7 of payments made as a condition of probation or a plea agreement, and thus, the Commission finds no specific constitutional provision authorizing such payments.
In Opinion 173, the Commission reviewed VAMS Section 559.021(2) to determine whether that statute authorized conditions of probation requiring payments to the county treasury, county crime reduction fund or a specified charity absent a state or constitutional provision authorizing such payments. The Commission stated:
It is the Commission’s opinion that even though a condition of probation or a plea agreement requires that a payment go to the same fund (county school fund) as required by the Constitution for fines, there is still the appearance of a “payoff” and the appearance of impropriety. Such conditions of probation or a plea agreement should not be allowed unless specifically authorized by a municipal ordinance (in the case of municipal charges) or by a statute or constitution in state charges.
(Dated: February 20, 2002)
COMMISSION ON RETIREMENT, REMOVAL AND DISCIPLINE
OPINION 180
Issue:
May a judge allow a condition of probation or of a plea bargain requiring donations to a county school fund in lieu of a fine?
Discussion:
The Commission has issued a series of Opinions (172, 173 and 176) dealing with the questions pertaining to the imposition of conditions of probation requiring donation in lieu of fines:
In Opinion 176 concerning the issue of whether a judge can allow such payment if it is a precondition to a plea bargain, the Commission held:
Even though the judge does not impose a charitable or civic payment as part of a sentence or condition of probation, when the judge knows such a payment is a pre-condition 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.
The question now before the Commission is whether the appearance of a “payoff” is avoided by making the donation to the same fund (the county school fund) that receives fine money pursuant to Article IX, Section 7 of the Missouri Constitution. The pertinent language of Article IX Section 7 of the Missouri Constitution provides that ... the clear proceeds of all penalties, forfeitures and fines ... shall be distributed to the county school fund. The Commission notes that there is no specific mention in Article V, Section 7 of payments made as a condition of probation or a plea agreement, and thus, the Commission finds no specific constitutional provision authorizing such payments.
In Opinion 173, the Commission reviewed VAMS Section 559.021(2) to determine whether that statute authorized conditions of probation requiring payments to the county treasury, county crime reduction fund or a specified charity absent a state or constitutional provision authorizing such payments. The Commission stated:
In addition, VAMS Section 559.021(2) in pertinent part provides: "... the court may order such condition 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 and Missouri or the prohibitions in Supreme Court Rule 2, Canons 2 and 4, against fund raising and creating the appearance of impropriety.
It is the Commission’s opinion that even though a condition of probation or a plea agreement requires that a payment go to the same fund (county school fund) as required by the Constitution for fines, there is still the appearance of a “payoff” and the appearance of impropriety. Such conditions of probation or a plea agreement should not be allowed unless specifically authorized by a municipal ordinance (in the case of municipal charges) or by a statute or constitution in state charges.
(Dated: February 20, 2002)