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March 08, 1994
The Honorable Marion A. Humphrey
Circuit Judge
201 West 3rd Street #340
Little Rock, Ar 72201
RE: JEAC Opinion 94-03
Dear Judge Humphrey:
By letter dated February 17, 1994 addressed to the Judicial
Discipline Commission, you requested an ethical advisory opinion as to your participation,
as banquet speaker, under the following revealed circumstances or facts: The 2nd Baptist
Church of Little Rock is sponsoring a banquet to be held at the Holiday Inn-West, Little
Rock, on April 9, 1994; tickets will be sold to those who attend at a cost of $20 each;
proceeds of the sales will be used first to pay the costs (you do not reveal their nature
but state they are not expected to be very much); all remaining funds to go to the
Church=s scholarship fund. You comment that Athis type of activity is any excellent forum
for encouraging young people to seek an education and to obey the law, and for
discouraging gang and drug activity@. You pose two questions: (1) whether a duly organized
church congregation is considered a Areligious organization: under the code; and (2) by
not specifically using the word Achurch@ in Canon 4C(3)(b) is a judge prohibited from
speaking at such a church function@.
It is our opinion that the ethical resolution to your problem does
not depend upon philosophical, theological, or other possible distinguishing factors
between a Aduly organized church@, or a Areligious organization@. For purposes of
application of the Code, one is to be considered the same as the other. Your letter
request reflects that whatever the entity is determined to be, the described banquet is a
fund-raising affair, so prohibited by the Code. The concluding comment to Canon
4C(3)(b)(iv) provides as follows:
AA judge must not be a speaker or guest of honor at an
organization=s fund raising event, but mere attendance at such an event is permissible
If otherwise consistent with this Code.@
Section 5B(2) of the Canons of Judicial Conduct in existence in this
jurisdiction prior to the adoption of the present Code contained the identical
proscription although inserted in its text rather than being a part of the Commentary, as
is the present situation. We cannot conclude that this difference is of significance.
Section 5B(2) was interpreted many, many times, the essence of which is that the ethical
evil sought to be proscribed is the solicitation of funds, whether by speaking at a fund
raising even, permitting his/her name to be used in connection therewith, or actively
soliciting the funds sought for the designed purpose(s). Neither the type of sponsoring
entity nor fund purpose seem to be of importance in this ethical question, nor do they
have ethical judicial significance. The reason given by other authorities that have
examined this question is that to permit such activities would present a very real danger
of de facto coercion which, even if unintended, amounts to a misuse of the judicial
office.
Yours Truly,
Bruce T. Bullion
For the Committee
Member Edwin Alderson agrees.
Member Howard Brill concurs in the result.
A judge may speak at a church. A judge may speak at a banquet. A judge may be a guest of
honor. A judge may attend a fund-raising event. A judge may attend events to which tickets
are sold. The only restriction is that a judge may not be Aa speaker or guest of honor at
an organization=s fund-raising event@. Commentary to Canon 4(C)(3)(b).
The controlling issue is whether the event is a fund-raising event.
A judge could deliver this same message at a Wednesday night supper in church facilities,
even if the church charged $3.00 a person for a soup and sandwich meal. A judge could
speak to a Tuesday night church group that met at a restaurant and charged for the cost of
the meal. Therefore, I agree with Judge Bullion that the Committee must presume that the
event is, at least in part, a fund-raising event. However, if the Second Baptist Church as
the sponsoring organization can demonstrate that the cost of the meal, the cost of the
facilities and incidental costs (such as printing) approximate the cost of the ticket,
then I would treat the dinner as a non-fund -raising event. The burden rests on the
sponsoring organization to establish the costs of the dinner with sufficient
reasonableness and certainty for the judge or this committee to conclude that neither the
intent nor the result is fund-raising. |
