1996-26: Avocational Activities Compensation for Avocational Activities

Opinion No. 96-26
November 18, 1996

TOPIC: Avocational Activities
Compensation for Avocational Activities

DIGEST: A judge may engage in the avocation of acting and may accept an "honorarium".

REFERENCES: Illinois Supreme Court Rule 62A of the Code of Judicial Conduct, Canon 2 (145 Ill.2d R. 62); Illinois Supreme Court Rule 65A of the Code of Judicial Conduct, Canon 5 (145 Ill.2d R. 65); Committee Comments to Rule 65; Illinois Supreme Court Rule 66A of the Code of Judicial Conduct, Canon 6 (145 Ill.2d R. 66); Shaman/Lubet/Alfini, Judicial Conduct and Ethics, 2nd ed., 1995, Sec. 8.10; and Illinois Judicial Ethics Committee Opinion Nos. 95-18, 95-23 and 96-11.

FACTS
One judge's hobby is acting. He likes to participate as a stage performer at times that will not interfere with judicial duties. The judge will use a stage name and intends to refuse compensation, though he may be required to accept compensation because of union contract requirements. In that event, the judge would be willing to direct his or her salary to a charity or the Equity Actor's Union.

QUESTIONS
1. May the judge engage in such an avocation?
2. Assuming it will be necessary to be compensated, would it relieve any ethical problems for the judge to direct any payment to a charity while refusing to personally benefit?

OPINION
Question 1
Illinois Supreme Court Rule 62A states: "A judge should...conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary."
Illinois Supreme Court Rule 65A allows a judge to "...engage in the arts, sports and other social and recreational activities..." However, any such activity should not interfere with the judge's duties. The Commentary to Rule 65 states that "Complete separation of a judge from extrajudicial activities is neither possible nor wise; he should not become isolated from the society in which he lives."
While Rule 65A allows a judge to "engage in the arts", it does not appear that the Rules contemplated payment to a judge for such artistic endeavors.
Illinois Supreme Court Rule 66 states: "A judge may not receive compensation for the law-related and extrajudicial activities permitted by this Code. However, he or she may receive an honorarium and reimbursement of expenses if the source of such payments does not give the appearance of influencing the judge in his or her judicial duties or otherwise give the appearance of impropriety. For the purposes of this canon 'compensation' is a sum of money or other thing of value paid by a person or entity to a judge for services provided or performed."

Question 2
"Honorarium" is defined in Rule 66A: "An honorarium should not exceed a reasonable amount nor should it exceed what a person who is not a judge would receive for the same activity. The total honorarium received by a judge within a six-month period shall not exceed $3,000.00."
(It is apparently irrelevant whether the judge donates the compensation/honorarium to a charity; charity is not an element of the Rules.) The language of Rule 66 makes it extremely difficult to make a clear distinction between an "honorarium" and "compensation". Thus, under Rule 66 a judge may not receive compensation but may receive an honorarium.
Under the federal system, honoraria are permitted under the Code of Judicial Conduct, but are expressly prohibited to federal judges by the Ethics Reform Act of 1989. Shaman/Lubet/Alfini, Judicial Conduct and Ethics, 2nd ed., 1995, Sec. 8.10. However, under both the Code and the Act, outside earned income is allowed up to a cap currently set at $18,656. Further, royalties on publications are considered "investment income" not "earned income".

In IJEC Opinion No. 95-18, the Committee concluded that a judge may serve as a coach and a "judge" at a speech and debate contest and receive an "honorarium". Similarly, in IJEC Opinion No. 96-11, Illinois Supreme Court Rule 66 was interpreted to allow a judge to teach martial arts and receive an honorarium or tuition waiver.

It would seem a misbegotten interpretation of these Rules to say that a judge could coach debate, speech or martial arts himself or herself and receive an "honorarium", but the judge could not pursue the theatrical arts under a stage name and be prohibited "compensation".
It is the Committee's opinion that a judge may assay a role upon the stage and may accept an honorarium not to exceed $3,000.000 in a six-month period, but may not accept compensation. In this case, a rose by any other name may not be a rose.