Discussion
The Nevada Code of Judicial Conduct sets forth the applicable standards from
which our judges are provided guidance for ethical conduct.
Canon 4C(3) of the Nevada Code of Judicial Conduct states as follows:
"(b) A judge as an officer, director, trustee or non-legal advisor, or as a
member or otherwise:
"(i) may assist such an [charitable] organization in planning fund-raising
and may participate in the management and investment of the organization's
funds, but shall not personally participate in the solicitation of
funds, or other fund-raising activities, except that a judge may
solicit funds from other judges over whom the judge does not exercise
supervisory or appellate authority." (Emphasis added)
In addition, Canon 2A states that a judge has the duty to act at all times in
a manner that promotes public confidence in the integrity and impartiality of
the judiciary. Canon 2B states that a judge shall not allow family, social,
political or other relationships to influence the judge's judicial conduct or
judgment and the judge shall not lend the prestige of judicial office to advance
the private interests of the judge or others. These Canons are also relevant to
the issues raised in this request for advisory opinion.
In Matter of Davis, 113 Nev. 1204, 946 P.2d 1033 (1997), the Nevada
Supreme Court affirmed a decision of the Nevada Commission on Judicial
Discipline removing a municipal court judge from office for numerous violations
of the Nevada Code of Judicial Conduct (NCJC). One of the charges against the
judge was that he directed or suggested to persons appearing before his court,
and having been found guilty by the court, to contribute to certain charities in
lieu of paying fines to the city thereby diverting money from the city treasury.
The Commission found that the judge was motivated partially by the purpose of
enhancing his electability.
The judge argued that there was no evidence that he directed or encouraged
charitable contributions to enhance his electability. He further claimed that he
did not violate Canon 4C(3) "because the defendants had a choice as to whether
to contribute and which charity would receive the contribution." 113 Nev. at
1223.
In affirming the Commission's decision, the Supreme Court stated:
"We conclude that appellant's conduct violated NCJC 4C(3). 'The rule
addresses the dual fears that potential donors either may be intimidated into
making contributions when solicited by a judge, or that they may expect future
favors in return for their largesse.' Jeffrey M. Shaman, et al., Judicial
Conduct and Ethics Sec. 9.06 at 289 (2d ed. 1995). This treatise also
directs our attention to unreported decisions wherein judges were disciplined
for conduct similar to that presently under scrutiny. In one case, the judge
disposed of cases by requiring defendants to contribute stated amounts to
charities named by the judge. In another, the judge allowed the defendants to
make voluntary contributions to law enforcement services in exchange for
dismissal of traffic infractions. Id. at 290 nn. 40-41. Accordingly, we
conclude that appellant violated NCJC Canon 4C(3). Further this conduct violated
other canons identified by the Commission." Matter of Davis, supra,
113, Nev. at 1223.
There are no provisions in the Nevada criminal statutes authorizing judges to
order a convicted defendant to make a charitable contribution. The prescribed
punishment for misdemeanors in Nevada is imprisonment in the county jail for not
more than 6 months, a fine of not more than $1,000, or both. See NRS
193.150. The prescribed sentences for felony crimes involve sentences of one or
more years in prison and/or a fine. No statute authorizes the court to
substitute a charitable contribution for either the fine or imprisonment
penalty.
Under NRS 4.373, a justice of the peace may suspend the sentence of a person
convicted of a misdemeanor and may order the defendant to pay restitution to his
victim, participate in a work program for the benefit of the community,
participate in professional counseling, abstain from the use of alcohol or
drugs, refrain from engaging in any criminal activity or to engage or refrain
from engaging in any other conduct deemed appropriate by the justice of the
peace. Again, there is no statutory provision that authorizes the judge to order
a defendant to make a charitable contribution as part of a suspended sentence.
Other state courts and judicial conduct commissions have sanctioned judges
for ordering or authorizing charitable contributions as part of a criminal
sentence or "diversionary program" or as a contempt or civil sanction. In
the Matter of Storie, 574 S.W.2d 269 (Mo. 1978), for example, a judge was
suspended for approving plea bargains that included an agreement that in
consideration for a reduced charge, dismissal or nolle prosequi, a contribution
would be made by the defendant to a fund maintained by the judge to improve
court facilities.
A number of judicial ethics decisions from other jurisdictions have also
advised that a judge may not require a defendant to contribute to a charity,
including both governmental and private charitable organizations, either
directly as part of a sentence, as part of a plea bargain agreement, in exchange
for withholding adjudication, as a condition of probation, as part of probation
before judgment, or as an alternative in lieu of performing community service
work. See "Charitable Contributions as Part of a Sentence" Judicial
Conduct Reporter, Vol. 21, No. 4 (Winter 2000).
Ordering attorneys to make charitable contributions as a sanction of
violation of court rules has also been disapproved, although the decisions are
not uniform. In the Matter of Merritt, 432 N.W.2d 170 (Mich. 1988), a
judge was censured for maintaining a fund to assist indigent drug and alcohol
abusers where contributions from attorneys were required as sanctions for late
filing or pre-trial statements, tardiness or failure to appear. In contrast to
Merritt, however, a Washington state advisory opinion stated that a
judge may give attorneys the option of paying fines levied for violations of
civil scheduling orders directly to a local county bar association pro bono or
volunteer lawyer program or a charity so long as the judge does not select the
organization and the attorney is admonished not to make the contribution to an
organization with a political agenda. See "Charitable Contributions as
Part of a Sentence" Judicial Conduct Reporter, Vol. 21, No. 4 (Winter 2000).
A number of reasons have been advanced for prohibiting judges from requiring
or proposing that defendants, civil parties or attorneys make charitable
contributions in lieu of a fine or sanction. These reasons include the concern
that judicial power should not be used to force litigants to provide gifts or
services to specified charities and judges should not be choosing among
competing charities.
Secondly, charitable contributions in lieu of sentencing are not authorized
by statute and judges, no matter how well intentioned, may not impose penalties
or dispose of cases in a manner not prescribed by statute or case law. This also
distinguishes charitable contributions from community service work which is
provided for by statute.
Third, charitable contributions in lieu of a fine divert money from the
treasury which the governmental entity would otherwise receive. Fourth, ordering
or approving charitable contributions may create the appearance that the judge
is improperly using his judicial authority to enhance his, or her, popularity
and chances for being re-elected.
Although imposing restrictions on the types of charities to which
contributions may be ordered may arguably lessen the appearance of partiality,
in the absence of any clearly established rule and standards, the ability to
distinguish acceptable court ordered or approved charitable donations from
unacceptable ones is doubtful. What may appear to one jurist as an apolitical
charitable organization may appear to others as having a political agenda to
which they do not wish to subscribe and which is not subject to the rules and
regulations governing the disposition of public monies.
