Can a judge serve on a Chamber of Commerce committee that promotes pro-business positions and supports the election of business-friendly candidates?

Plain-English summary

A judge asked about serving on a Chamber of Commerce legislative and political action committee designed to establish and maintain a pro-business environment by identifying and promoting legislative issues, advising the public and governmental units of the Chamber's positions, and supporting the election of business-oriented candidates. The Committee analyzed the inquiry under several canons of the Michigan Code of Judicial Conduct.

The Committee read MCJC 4 and MCJC 5G as confining encouraged judicial involvement to improvement of the law, the legal system, and the administration of justice, and MCJC 5B as allowing civic activities only where they do not reflect adversely on impartiality. Promoting the interests of the business sector is distinct from improving the law or the courts. By serving on a committee that has taken a stance favoring or opposing a sector of the community, the judge would be stripped of impartiality and would face recusal whenever a policy or law affecting that sector, or a member of that sector, came before the court (MCJC 1, MCJC 2C). The Committee contrasted earlier opinions approving limited participation in neutral or law-related activities (JI-12, JI-18, JI-46) and its decision in JI-52 barring a judge from signing a controversial resolution that showed favoritism, citing C-237's caution against expressing partisan opinions that may require recusal.

On the committee's secondary function of screening and supporting the election of business-oriented candidates, the Committee applied MCJC 7A, which bars a judge from publicly endorsing a candidate for nonjudicial office (while MCJC 7A(2) permits attending political gatherings and contributing to a party). Membership on a committee that publicly supports legislative candidates is therefore unethical. As to judicial candidates, an endorsement could be criticized if shown to rest on supporting pro-business individuals, giving the judge and the candidate the appearance of being predisposed toward pro-business interests and inviting recusal. The Committee concluded the judge should refrain from participating in any function of the subcommittee.

Currency note

This opinion was issued in 1993 and interprets the Michigan Code of Judicial Conduct as it then stood. The MCJC has since been amended (the State Bar flags amendments effective August 1, 2013 to Canons 2, 4, 5, and 7, among other revisions), and later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a judge serve on a Chamber of Commerce political action committee?

A: Per the opinion, no. The Committee concluded that serving on a committee that promotes a sector's interests strips the judge of impartiality and would require recusal whenever matters affecting that sector came before the court.

Q: Can a judge belong to a committee that endorses nonjudicial candidates?

A: No. The opinion applied MCJC 7A, which bars publicly endorsing a candidate for nonjudicial office, and held that membership on a committee that publicly supports legislative candidates is unethical.

Q: Are there civic activities a judge may join?

A: Yes. The opinion noted earlier opinions approving limited, neutral, or law-related participation (JI-12 grant agency, JI-18 census committee, JI-46 court-funding millage), where the activity does not reflect adversely on impartiality.

Background and rules framework

The opinion interprets the Michigan Code of Judicial Conduct: MCJC 1 (integrity and independence), MCJC 2C (prestige of office; impartiality), MCJC 4 (improvement of the law, legal system, administration of justice), MCJC 5B (civic activities not reflecting adversely on impartiality), MCJC 5G (governmental appointments), and MCJC 7A (political conduct; no endorsement of nonjudicial candidates). It draws on prior opinions J-1, JI-12, JI-18, JI-46, JI-52, and C-237.

Citations and references

Rules of Judicial Conduct:

• MCJC 1 (integrity and independence of the judiciary)
• MCJC 2C (prestige of office; impartiality)
• MCJC 4 (improvement of the law, legal system, administration of justice)
• MCJC 5B (civic and charitable activities)
• MCJC 5G (governmental appointments)
• MCJC 7A (political conduct; endorsement of nonjudicial candidates)

Other opinions cited:

• J-1 (criteria for judicial participation in civic activities)
• JI-12 (judge serving on a governmental grant agency)
• JI-18 (judge as ceremonial head of a census committee; university nonprofit director)
• JI-46 (judge participating in a court-funding millage campaign)
• JI-52 (judge signing a controversial community resolution)
• C-237 (expressing a partisan opinion on a ballot proposal)

See also

• Mich Ethics Op. JI-52: Judge Signing Civic Resolution
• Mich Ethics Op. JI-47: Judge Spouse Political Activity
• NY State Bar Op. 585: Judge in Bar Association With a PAC
• NY State Bar Op. 491: Judge-Elect Political Activity

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=774&Type=6

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

JI-65

February 25, 1993

SYLLABUS

A judge may not serve on a legislative affairs and political action committee whose mission is to support pro-business interests by promotion in the media, before governmental bodies, and by supporting the election of business oriented candidates to partisan or nonpartisan offices.

References: MCJC 1, 2C, 4, 5B, 5G, 7A; J-1; JI-12, JI-18, JI-46, JI-52; C-237.

TEXT

A judge inquires as to the ethical implications of participating on a legislative and political action committee for the Chamber of Commerce. The committee is designed to establish and maintain a pro-business environment by identifying and promoting legislative issues which may affect the business sector. It would seek to enhance the business sector by advising the public and governmental units of the particular position of the Chamber of Commerce on issues which are of interest to the membership. Furthermore, the committee would support the election of business oriented candidates.

MCJC 4 states:

"As a judicial officer and person specially learned in the law, a judge is in a unique position to contribute to improvement of the law, the legal system, and the administration of justice, including revision of substantive and procedural law and improvement of criminal and juvenile justice. To the extent that his time permits, he is encouraged to do so, either independently or through a bar association, judicial conference, or other organization dedicated to the improvement of the law." Emphasis added.

The activities of judges in civic affairs are further guided by MCJC 5B which states in part:

"A judge may participate in civic and charitable activities that do not reflect adversely upon his impartiality or interfere with the performance of his judicial duties." Emphasis added.

MCJC 5G states in part:

"A judge should not accept appointment to a governmental committee, commission, or other position that is concerned with issues of fact or policy on matters other than the improvement of the law, the legal system, or the administration of justice." Emphasis added.

In J-1 we discussed the limitations and criteria of MCJC 4 and MCJC 5 that should determine whether or not a judge should participate in certain civic activities. One of the guidelines provided that the activity should not reflect adversely on the judge's impartiality. An additional guideline opposed participation if the organization or its members would be likely to appear in the judge's court or in any adversary proceedings in any court. MCJC 5B. In regard to the issue of impartiality, the judge must be neutral, and therefore, should refrain from participating in furthering or opposing the interests of business. MCJC 1, 2C. By serving as a member of a committee which has taken a stance in favor of or in opposition to a particular sector of the community, the judge is stripped of impartiality and would face recusal on each occasion that the policy or law affecting that sector was the subject matter being contested in a legal proceeding or when a member of that sector appeared before the judge in question. It is clear that promoting the interests of the business sector is distinct and apart from the general "improvement of the law, the legal system, or the administration of justice" as it pertains to the courts.

This Committee has approved certain participation on non-governmental and governmental entities that do not detract from the dignity of judicial office nor diminish the judge's impartiality. In JI-12, we determined that a newly appointed judge could "continue to serve as a member of a governmental agency which evaluates and administers grant fund proposals" to various groups provided that neither the grantees nor the agency were frequently before the court. It was concluded that the judge should disclose the participation and grant a request for recusal on any occasion that the agency appeared in the judge's court. In JI-18, we stated that a judge could accept an appointment as an unpaid "ceremonial head" to a census committee designed to emphasize the importance of an accurate and complete count for the 1990 census. The public service was held not to reflect adversely on the judge's impartiality nor would it give an appearance of impropriety. This Committee also concluded that this same judge could also serve as a director for a nonprofit corporation of a university to manage various entrepreneurial activities. The judge's participation was conditional upon refraining from the personal solicitation of funds or allowing the use of the prestige of the judge's office to compel financial contributions. In JI-46, we also determined that a judge could participate in a countrywide millage campaign designed, in part, to benefit the legal system by defraying operational costs of the courts and developing education programs which would supplement court probation services. It was recommended that the judge's activities focus only "upon matters pertinent to the court."

In JI-52, we concluded that a judge could not sign a resolution which requested that the mayor and county board of commissioners take steps to prevent a business from closing in their community. It was determined that not only was the resolution controversial, but the matter was likely to be the subject of litigation due to the loss of jobs. Similar to the current inquiry, the activity in JI-52 focused upon private and civic interests showing favoritism and bias for a private group, union employees, and not judicial matters of "the law, the legal system or the administration of justice." Citing C-237, which recommended against expressing an opinion on a ballot proposal regarding capital punishment, we determined that:

". . . a judge should not express a partisan or specific opinion on issues, since the expression of the opinion may be grounds for recusal of the judge if a similar matter comes before the judge. A judge may be less able to render a fair and unbiased decision on an issue that comes before the judge if the judge has publicly committed himself/herself to a course of conduct or policy."

A secondary function of the legislative affairs and political action committee is to screen and support the election of "business oriented candidates" to legislative and judicial posts.

MCJC 7A states:

"(1) A judge or candidate for judicial office should not:

". . .

"(b) make speeches on behalf of a political party or non-judicial candidate or publicly endorse a candidate for non-judicial office."

It is clear that a judge should refrain from participating in a process that publicly endorses a candidate for nonjudicial office, although MCJC 7A(2) does permit judges to "attend political gatherings" and to "contribute to a political party." A judge's membership and participation on a committee for the purpose of screening and providing public support of legislative candidates is therefore unethical. In regard to supporting candidates for judicial office, a judge's endorsement may be subject to criticism if it is demonstrated that the basis of the endorsement is to support the election of pro-business individuals. The judge as well as the judicial candidate would incur the appearance of being predisposed in favor of pro-business interests or members of the Chamber of Commerce and would face recusal in legal proceedings involving such interests. Therefore, a judge should refrain from participating in any function of this subcommittee of the Chamber of Commerce.