Supreme Court of Wisconsin
Judicial Conduct Advisory
Committee OPINION
98-12
Date Issued: November 23, 1998
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ISSUE
Is
selling fruit door-to-door to raise money for a charitable organization a de
minimis activity?
ANSWER
No.
FACTS
A
judge wishes to participate in a fund-raising campaign of a charitable
organization of which the judge is a member.
In this campaign, the community in which the judge resides is divided
into areas of several square blocks each.
Within each area, the assigned member solicits sales of cases of fruit
at $10-$12 per case by going door-to-door.
Each member typically sells 25-50 cases. The judge also asks the Committee to provide guidelines as to
which fund raising activities are de minimis.
DISCUSSION
The
Committee concludes that the issue presented involves provisions of SCR
60.05(3), 60.01(4), 60.03(1), 60.05(1), and the Preamble to the Code of
Judicial Conduct.
A. SCR 60.05(3)
Judges
are, with only two exceptions described below, prohibited from being involved
in charitable and civic fund-raising, as stated in SCR 60.05(3)(c)2.a:
2. A judge, in any capacity:
a. May assist [a nonprofit charitable or
civic] organization in planning fund-raising activities ... but may not
personally participate in the solicitation of funds or other fund-raising
activities....
As
stated in the Preamble to the Code of Judicial Conduct, use of the language
“may not” creates a “binding obligation” for judicial adherence to the
rule. Reasons for this prohibition are
described in Wis. Advisory Ops. Numbers 98-1, 98-3, and 98-5 (1998). The Committee finds only two exceptions.
Exception
#1. SCR 60.05(3)(c)2.a further states in part:
[A]
judge may solicit funds from other judges over whom the judge does not exercise
supervisory or appellate authority.
Exception
#2. The Comment to SCR 60.05(3)(c)2.d states in
part:
SCR
60.05 should not be read as proscribing participation in de minimis
fund-raising activities so long as a judge is careful to avoid using the
prestige of the office in the activity.
The
question raised by the request for a formal advisory opinion concerns the
second exception. Following the
reasoning in Section B below, the Committee finds that the proposed activity
does not constitute a de minimis fund-raising activity as defined by the
Code of Judicial Conduct, and is thus not permitted.
B. SCR 60.01(4),
60.03(1), 60.05(1), and 60.05(3)
What
activities in civic or charitable fund-raising activity may be considered de
minimis under the Code of Judicial Conduct? Charitable organizations and individual situations vary widely,
making it difficult to list universally-applicable guidelines. The Code of Judicial Conduct does not
contain such a list. In each situation
a balance must be struck between two opposing justifications for action. On one hand, judges have a constitutionally-protected
right to free speech and association, and in any case isolation of a judge from
the community is neither possible nor desirable. See Comment to SCR 60.05(1); Jeffrey M. Shaman
et al., Judicial Conduct and Ethics § 10.07, at 307-09 (2d ed.
1995). On the other hand, restrictions
on judicial behavior protect the impartiality of the judge, maintain public
confidence in the judiciary, and prevent a judge from being distracted by
extraneous activities. See
Comment to SCR 60.03(1); Shaman et al., supra §§ 10.02-.06, at
303-07.
The
following analysis of relevant sections of the Code of Judicial Conduct takes
the need for such a balance into consideration, and derives from the Code some
principles which must be used by persons subject to it.
The
term de minimis is defined in SCR 60.01(4):
“De
minimis” means an insignificant interest that does not raise reasonable
question as to a judge’s impartiality or use of the prestige of the office.
This
definition contains three criteria by which a fund-raising activity must be
evaluated to determine whether it is de minimis. Any interest involved must be
“insignificant”; if insignificant, two other standards must next be applied:
the activity must not threaten the impartiality of the judge, and the judge’s
prestige must not be used as a way of raising funds. We analyze these criteria in order.
First,
it must be determined if the interest in a particular case is indeed
“insignificant.” The extended Comment
to 60.05(3)(c)2.d states in relevant part:
Solicitation
of funds for an organization ... involve[s] the danger that the person
solicited will feel obligated to respond favorably to the solicitor if the
solicitor is in a position of influence or control.
This
passage reminds us that the solicitation of funds involving direct personal
interaction between solicitor and potential contributor creates a reciprocal
obligation between the two parties.
Contributors are asked to give up something of value which they would
not otherwise relinquish. However, it
is difficult to state a given dollar amount at which a contribution becomes
significant, because what may be “insignificant” in the eyes of the solicitor
may be of some significance to a potential donor. This possibility certainly exists when a judge solicits a
contribution from a stranger, since the judge cannot know with assurance how
the stranger will interpret the significance of the request. Thus the proposed sale of fruit fails to
meet the “insignificance” standard of de minimis activity.
Even
if the activity were held to “involve an insignificant interest,” it
must pass two additional tests to be considered de minimis. The issue of judicial impartiality is not of
primary relevance to the present case, but the issue of the use of prestige of
office is clearly involved. If the identity of the judge is known to the
potential contributor, there is a reasonable possibility that the prestige of
judicial office will influence the decision to contribute, regardless of the
intent of the judge in soliciting the funds.
A judge soliciting a stranger cannot be assured that his or her identity
as a judge will be unknown, particularly in a small jurisdiction. Therefore, it is a reasonable possibility
that the proposed sale of fruit will involve use of the prestige of office to
encourage charitable contributions, and cannot be considered de minimis
under SCR 60.01(4).
The
Comment to 60.05(3)(c)2.d further states:
SCR
60.05 should not be read as proscribing participation in de minimis
fund-raising activities so long as a judge is careful to avoid using the
prestige of the office in the activity.
Thus, e.g. , a judge may pass the collection basket during services at
church, may ask friends and neighbors to buy tickets to a pancake breakfast for
a local neighborhood center and may cook the pancakes at the event but may not
personally ask attorneys and others who are likely to appear before the judge
to buy tickets to it.
In
light of the previous analysis, how should we interpret these apparent
exceptions to the prohibition on solicitation of charitable and civic
contributions? The three examples
contained in this Comment suggest that the situation, as well as the relationship
between the solicitor and the person solicited, must be considered in
determining whether a fund-raising activity would be de minimis. In the first example, a church service is a
voluntary assembly at which the collection of funds is to be expected by those
who choose to attend. A judge passing a
basket is one among many doing so. The
judge’s identity may or may not be known to the persons being solicited, nor
does the judge ask for or know if any specific amount has been contributed. The amount contributed is usually determined
by the contributor, not by the person soliciting a donation. Thus, the contribution may be considered
“insignificant” and the prestige of judicial office appears unlikely to
influence it.
In
the second example from the Comment, a judge may ask a “friend” or “neighbor”
(who is not a stranger) for a small (“insignificant”) contribution, only if the
prestige of judicial office does not influence the decision to contribute. In contrast, in the third example from the
Comment the professional relationship between judge and attorneys precludes
such a request: the judge’s prestige
will certainly be involved, and a reasonable possibility exists that the
judge’s ability to remain impartial will be threatened by knowing the response
of the attorneys to his or her solicitation.
The
Committee believes that even situations which are de minimis must
still be examined on a case-by-case basis, since particular circumstances
(e.g., the nature of the organization for which the contribution is being
solicited) may cause a conflict with other sections of the Code of Judicial
Conduct. The Comment to SCR 60.05(1)
states that “a judge should not become isolated from the community in which the
judge lives.” However, the prohibition
on judicial participation in fund-raising does not isolate a judge from the
community. There are many ways
permitted under the Code of Judicial Conduct in which a judge may be involved
in charitable and civic organizations.
Examples can be found in the Code of Judicial Conduct, as well as in
prior opinions of this Committee (Wis. Advisory Ops. 98-3, 98-4, and 98-7).
CONCLUSION
The
Committee concludes that a judge may not sell fruit door-to-door for a
charitable organization, because it is not a de minimis activity as
defined in the Code of Judicial Conduct. De minimis exceptions to the
prohibition on judicial involvement in solicitation of charitable contributions
are very limited; judges are prohibited by the Code of Judicial Conduct from
virtually all personal participation in soliciting charitable and civic
contributions.
APPLICABILITY
This
opinion is advisory only, is based on the specific facts and questions
submitted by the petitioner to the Judicial Conduct Advisory Committee, and is
limited to questions arising under the Supreme Court Rules, Chapter 60--Code of
Judicial Conduct. This opinion is not
binding upon the Wisconsin Judicial Commission or the Supreme Court in the
exercise of their judicial discipline responsibilities. This opinion does not purport to address
provisions of the Code of Ethics for Public Officials and Employees, subchapter
III of Ch. 19 of the statutes.
I
hereby certify that this is Formal Opinion No. 98-12 issued by the Judicial
Conduct Advisory Committee for the State of Wisconsin, this 23rd day of
November, 1998.
_________________________________
Thomas
H. Barland
Chair