Opinion No. 99-1

January 12, 1999

TOPIC: Judge as "celebrity bagger" at supermarket as part of charitable fundraising effort.

DIGEST: A judge may not help raise funds for a charity by serving as a celebrity bagger at a fundraising event held at a supermarket.

REFERENCES: Illinois Supreme Court Rules 64 and 65; Illinois Judicial Ethics Committee Opinion Nos. 93-3, 93-5, 95-13, 95-22, 95-23, 96-3, 97-15; In re Harris, 72 N.Y.2d 335, 529 N.E.2d 416 (1988); Fla. Comm. on Stds. of Cond. Gov'g Judges, Opinion No. 90/27 (1990); E. Thode, 9 SAN. DIEGO L. REV. 793, 800 (1972); Shaman, Lubet and Alfini, Judicial Conduct and Ethics, Sec. 9.06 at p. 263 (1990).

FACTS

United Way has asked all the judges in an area to volunteer as "celebrity baggers" for a fundraising effort to be conducted at a local supermarket. The supermarket would advertise that it will donate ten percent of purchases to the United Way and that judges will be serving as celebrity baggers. Names of individual judges would not be used in the promotional materials.

QUESTIONS

May a judge participate in this promotion?

OPINION

The Committee believes that a judge's participation in the charitable fundraising effort would constitute the solicitation of funds for a charitable organization in violation of Supreme Court Rule 65B(2). That rule provides in pertinent part:

B. Civic and Charitable Activities. A judge may participate in civic and charitable activities that do not reflect adversely upon the judge's impartiality or interfere with the performance of the judge's judicial duties. A judge may serve as an officer, director, trustee, or nonlegal advisor of an educational, religious, charitable, fraternal, or civic organization not conducted for the economic or political advantage of its members, subject to the following limitations:

(2) A judge should not solicit or permit his or her name to be used in any manner to solicit funds or other assistance for any such organization... (Emphasis added.)

This Committee has repeatedly concluded that a judge may not solicit funds for charitable, educational, religious, fraternal and civic organizations, nor permit his or her name to be used for that purpose. See Illinois Judicial Ethics Committee ("IJEC") Opinion No. 93-5 (judge's name may not be used to solicit funds for nonprofit organization); IJEC Opinion No. 95-13 (judge may not solicit funds for civic organization or permit name to appear on letterhead used for that purpose); IJEC Opinion No. 96-3 (judge may not be a speaker at a university fundraiser); IJEC Opinion No. 96-4 (judge may serve as officer of religious institution, but may not solicit funds or list name on letterhead used for fundraising); IJEC Opinion No. 97-15 (same restrictions apply to judge's service as officer of charity). On the other hand, Supreme Court Rule 64C permits a judge to assist in raising funds for an organization or governmental agency devoted to the improvement of the law, the legal system, or the administration of justice, so long as the judge does not personally participate in public fundraising activities. See IJEC Opinion No. 95-22 (applying Rule 64C to judge's service on charitable arm of bar association).

This Committee has also concluded that, pursuant to Supreme Court Rule 65A, a judge may "engage in the arts" in a manner that has the incidental effect of helping raise funds for a nonprofit organization, at least where fundraising is not the judge's motivation for participating and the judge's participation cannot reasonably be expected to appreciably benefit the fundraising effort. See IJEC Opinion No. 95-23 (judge may assume non-leading role in play benefiting nonprofit civic organization). See also IJEC Opinion No. 93-3 (judge's service as board member of university may be mentioned in non-fundraising literature included with informational packet accompanying fundraising effort).

Here, the judge's activity would be directly and solely intended to assist a charity's fundraising efforts. Although written promotional materials for the fundraiser may not identify any participating judges by name, if an individual judge is identified as such at the fundraiser he or she would be permitting their name to be used to solicit funds in violation of Rule 65B(2). Even if a judge is never identified by name and position, the judge's participation would involve soliciting funds for the charity because the judge's participation would unquestionably be intended to help raise funds. By its express terms, Rule 65B(2) prohibits the solicitation of funds by judges regardless of whether their names are used. Solicitation encompasses efforts intended to raise funds that do not involve direct requests for contributions. See In re Harris, 72 N.Y.2d 335, 529 N.E.2d 416 (1988) (sanctioning judge who assisted charitable fundraising effort without personally requesting contributions).

The Committee notes that its conclusion that this conduct is prohibited is consistent with the views expressed by the Florida Committee on Standards of Conduct Governing Judges ("Fla. Comm."), which found that the Code of Judicial Conduct precludes a judge from acting as a celebrity bagger for a supermarket that agreed to contribute 5% of its sales to charity. Fla. Comm., Opinion No. 90/27 (http://circuit6.co.pinellas.fl.us/sixth/OCSCGJ/ninet/90-27.html) (1990). See also E. Thode, 9 SAN. DIEGO L. REV. 793, 800 (1972) (Reporter of ABA Committee that drafted 1972 Code of Judicial Conduct explains that "the prohibition [against judges' participation in charitable fundraising activities] was made absolute" because, unlike with fundraising efforts by law-related organizations, the participation of judges is not essential); Jeffrey M. Shaman, Steven Lubet & James J. Alfini, Judicial Conduct and Ethics, Sec. 9.06 at p. 263 (1990) ("The advisory opinions evince a strong consensus in favor of a strict interpretation of the antisolicitation rule").

CONCLUSION

The judge may not serve as a celebrity bagger for the United Way.