Commonwealth of Virginia Judicial Ethics Advisory Committee Opinion 08-1

A judge has requested from this Committee an opinion on several issues related to the propriety of a judge acting as a pastor or in some other ministry position at a church.  The request includes the issues of whether a judge may preach at a regular church service where tithes or offerings are collected by others, whether a judge when preaching may encourage others to become Christians or become a member of a particular church, and whether a judge may serve in a non-salaried position with a religious organization, provided the position does not involve the solicitation of money or otherwise interfere with his judicial duties.

The Canons of Judicial Conduct for the Commonwealth of Virginia (“Canons”) and, more specifically, the rules therein governing extrajudicial activities, rest on several basic principles. First, the Canons do not prohibit judges from engaging in extrajudicial activities. Indeed, “complete separation of a judge from extrajudicial activities is neither possible nor wise; a judge should not become isolated from the community in which the judge lives.” Canon 4(A) Commentary. On the other hand, judges must conduct all of their extrajudicial activities so that they do not, among other things, “cast reasonable doubt on the judge’s capacity to act impartially as a judge.” Canon 4(A)(1).

Because extrajudicial activities are frequently visible to the public (unlike such activities as a judge’s personal financial affairs), Canon 2(A)’s Commentary clearly applies as well:

A judge must avoid all impropriety and appearance of impropriety.  A judge must expect to be the subject of constant public scrutiny.  A judge must therefore accept restrictions on the judge’s conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.  The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge’s ability to carry out judicial responsibilities with integrity and impartiality is impaired.

The Canons flatly prohibit some extrajudicial activities.  For instance, a judge may not join any organization that “practices invidious discrimination on the basis of race, sex, religion, or national origin.”  Canon 2(C).  The Canons also expressly prohibit judges from serving as employees of “any business entity” that is not family related.  Canon 4(D).  Apart from these and other specific prohibitions, determining the propriety of judge’s extrajudicial activities generally involves the analysis of each individual issue and the Canons’ applicability in a more subtle manner.

The Committee recognizes that a judge’s involvement in religious activities presents special and sensitive issues.  Religious activity receives special protection under the United States Constitution and the Virginia Constitution.  On the other hand, the well-recognized doctrine of “separation of church and state” reasonably affects the public’s perception of a judge’s appropriate role in religious activities.  The Committee believes that a judge’s public involvement in some religious activities carries a higher risk than many other extrajudicial activities because people appearing before the judge, and the public generally, might reasonably perceive that a judge’s impartiality is impaired.

The Canons clearly do not prohibit a judge’s involvement as a private citizen in religious activities.  For instance, the Canon barring a judge’s membership in an organization that practices “invidious discrimination” explains that one factor in analyzing that issue is whether the organization “is dedicated to the preservation of religious...values of legitimate common interest to its members.” Canon 2(C) Commentary.  Elsewhere, the Canons explicitly allow judges to “solicit membership or endorse or encourage membership efforts for...a...religious...organization,” as long as the “solicitation cannot reasonably be perceived as coercive and is not essentially a fund raising mechanism.” Canon 4(C) Commentary.  The Canons also state that a judge “may serve as an officer, director, trustee or non legal advisor of [a] religious...organization...subject to [the Canons’ requirements and limitations].”  Canon 4(C)(3).

Thus, the Canons permit judges’ involvement in religious activities, subject to the Canons’ specific provisions.  In fact, the Canons on their face do not single out judges’ involvement in religious organizations for any special prohibitions, restrictions or protections from other extrajudicial organizations.

In considering application of the facially neutral rules, it is clear that some of the Canons’ limitations and requirements apply to religious activities in exactly the same way as they do to other extrajudicial activities.  For instance, a judge may not devote so much time and effort to religious activities that they “interfere with the proper performance of judicial duties.”  Canon 4(A)(3).  Judges may not serve as “employees” of a religious organization.  Canon 4(D)(3).  The Committee believes, however, that other restrictions on judges’ extrajudicial activities apply with special sensitivity to religious activities.

First, a judge must be very careful when engaging in any religious activity that involves the solicitation or collection of funds.  Canon 4(C)(3)(b)(i) allows judges to assist religious and other organizations in “planning fund raising” and in “the management and investment of the organization’s funds.”  In contrast, that Canon prohibits judges from using “the prestige of judicial office for fund raising.”  Canon 4(C)(3)(b)(iv).  The Canons permit judges to attend a religious or other organization’s “fund raising events,” but prohibit a judge from being “a speaker or guest of honor” at such events.  Canon 4(C)(3)(b)(v).  Finally, except for very narrow circumstances, judges may not “personally participate in the solicitation of funds.” Canon 4(C)(3)(b)(i).  The Commentary to Canon 4(C) explains that “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.”

The Canons do not define “fund raising events.”  The Committee, however, joins its counterparts in other States in holding that a regular religious service should not be considered a “fund raising event” merely because the service traditionally includes the collection of small donations as relatively minor part of the service.  Thus, merely passing the collection plate at a regular religious service, without more, is not a “fund raising event.”  It is, however, clear that a religious service is a “fund raising event” if, for example, it involves a collection of money for a special purpose such as a building fund, or if it includes a call for participants to pledge future contributions of a certain level.

Second, the Committee believes that judges must be acutely aware of the risks associated with personally soliciting membership in a religious organization.  As mentioned above, the Canons specifically permit judges to “solicit membership or endorse or encourage membership efforts” for religious organizations “as long as the solicitation cannot reasonably be perceived as coercive.”  Canon 4C(3) Commentary.  This would apply with even greater import to a judge publicly urging a large gathering, in the words of the opinion request, “to become a Christian or a member of a particular local church body.”  The Canons restrict to even a greater degree a judge’s “direct, individual solicitation” of membership in a religious organization.  A judge may engage in such one-on-one solicitation only if “neither those persons nor persons with whom they are affiliated are likely ever to appear before the court on which the judge serves.”

Another important limitation is the Canons’ general admonition against judges engaging in any activity that would create “in reasonable minds” a perception that the judge’s ability to carry out judicial responsibilities with impartiality is “impaired.”  Canon 2(A) Commentary.  Religious organizations are far different from other organizations in which judges might become involved, such as neighborhood associations, softball leagues or youth organizations, in the sense that many religious organizations either publicly expound upon, or are publicly associated with, certain positions on controversial public issues. * To be sure, other non-religious organizations also may take highly public positions on matters of general concern.  Just as a judge’s extensive and public involvement in those organizations’ membership drives might create a reasonable perception that a judge’s impartiality is impaired, a judge’s involvement in soliciting members for religious organizations involves the same risks.

A judge must bear in mind one of the Canons’ overarching principles when considering any type of involvement with a religious organization ranging from fund raising and membership solicitation activities that are governed by specific rules, to serving as officers or in other leadership roles, to attending religious services at which others speak about the organization’s position on matters that might come before the judge.  That is, when considering whether to engage in these or any other activity involving a religious organization, a judge “must expect to be the subject of constant public scrutiny,” and must avoid both “impropriety and the appearance of impropriety.”

This is not to say that judges, outside their courtrooms and in a purely personal capacity, may not speak of their personal religious faith, or express the desire that others share their faith.  The Canons do not prohibit such private activity.  The key in all of these situations is for the judge scrupulously to avoid situations that reasonably could be viewed as coercive or that create the reasonable impression that the judge will be less than totally impartial when dealing with anyone who might appear before him in a judicial capacity, no matter that person’s religious affiliation or lack thereof.  The Committee notes that because religious beliefs can be held so fervently, and because they sometimes involve public issues that may come before the judge, a judge must be particularly sensitive to whether his or her actions in a religious context could create the reasonable appearance of partiality.

Thus, keeping in mind the admonitions of the Canons addressed above, a judge may not request offerings or tithes in any capacity.  The Committee is also of the opinion that a judge should not act as a pastor or minister at a regular church service or take a position during a religious service on issues of public controversy, as either may raise a question about the judge’s ability to act impartially or may create an appearance of impropriety.  Beyond this general advice, the applicability of the Canons to specific factual situations necessarily would have to be addressed on a case-by-case basis.

*Those issues may include, for example, abortion, appropriate child placement environment, and criminal sentencing considerations.

Canon 2A, Canons of Judicial Conduct
Canon 2A, Commentary
Canon 2B, Canons of Judicial Conduct
Canon 2C, Canons of Judicial Conduct
Canon 3D (1), Canons of Judicial Conduct
Canon 3D (2), Canons of Judicial Conduct
Canon 4A, Canons of Judicial Conduct
Canon 4A, Commentary
Canon 4A (1), Canons of Judicial Conduct
Canon 4A (3), Canons of Judicial Conduct
Canon 4C, Canons of Judicial Conduct
Canon 4C, Commentary
Canon 4C (3), Canons of Judicial Conduct
Canon 4C (3), Commentary
Canon 4C (3)(b)(i), Canons of Judicial Conduct
Canon 4C (3)(b)(iv), Canons of Judicial Conduct
Canon 4C (3)(b)(v), Canons of Judicial Conduct
Canon 4D, Canons of Judicial Conduct
Canon 4D (3), Canons of Judicial Conduct

Judge Fulton, Judge Banks, Mr. Conte and Mr. Spahn dissent as follows:

We respectfully dissent from the conclusion in the last paragraph of the majority Opinion that “a judge should not act as a pastor or minister at a regular church service…as [it] may raise a question about the judge’s ability to act impartially or may create an appearance of impropriety.”

We believe that this conclusion goes too far.

First, the majority Opinion’s conclusion is not supported by the Canons. As explained elsewhere in the Opinion, the Canons expressly permit judges to play an active leadership role in religious organizations, and participate in membership solicitation.  See, e.g., Canon 4(C)(3) (explicitly indicating that a judge may serve as an “officer, director, trustee, or non legal advisor” of a religious organization and solicit other persons for membership under circumstances in which the solicitation might not be reasonably perceived as coercive). Thus, the Canons do not conclude that a judge’s leadership role in a religious organization automatically raises a question about the judge’s ability to act impartially. Instead the Canons focus on the judge’s specific conduct in such a leadership role.  This conduct-based analysis appears throughout the Canons, and is contrary to the majority’s ipso facto conclusion.

A similar approach appears in the specific Canon dealing with judges’ public communications.  Canon 4(B) indicates that “[a] judge may speak, write, lecture, teach…concerning…non-legal subjects, subject to the requirements of these Canons.”  Like the leadership provision in Canon 4(C)(3), this provision avoids a per se approach based on certain subject matters, and instead necessarily focuses on the content of a judge’s lectures or teaching.  This subtle approach is contrary to the majority’s presumption that a judge’s lecturing or teaching as a minister automatically raises questions about the judge’s impartiality.  Nothing in the Canons singles out religious speech for such a per se limitation. Indeed, the majority’s conclusion presumably prevents a judge from acting as a minister in a church thousands of miles from where the judge sits, and regardless of what the judge communicates as a minister to the congregation.  This conclusion is directly at odds with the commentary to Canon (4)(C) which provides that “a judge may solicit other persons for membership in the organization described above if neither those person nor persons with whom they are affiliated are likely ever to appear before the court on which the judge serves.”

Second, the majority Opinion’s conclusion would make Virginia the only state whose ethics advisory committee would prohibit judges unequivocally from acting as ministers.  Arizona has indicated that judges may play a “prominent role” in religious services, subject to the content of what they say.  Arizona Judicial Ethics Advisory Comm., Op. 93-01 (1993).  Illinois has indicated that judges may speak on non-legal subjects at a church service.  Illinois Judicial Ethics Comm. Op. 01-06 (2001).  New York has expressly indicated that judges may act as a member of a church ministry assisting those recently released from penal institutions.  New York Advisory Comm. on Judicial Ethics, Op. 05- 140 (2006).  Several states have explicitly approved judges passing collection plates at church services.  New York Advisory Comm. on Judicial Ethics, Op. 89-83, 89-84 (1989);
Arizona Judicial Advisory Comm. Op. 96-13 (1996).  No state has adopted the majority Opinion’s per se approach.

We respectfully suggest that the majority Opinion’s presumption that such an activity automatically raises a question about the judge’s impartiality is inconsistent with the Virginia Canons and the findings and opinions of other states which have examined this issue.