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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.

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