Would you like the power to force another person to give money to your favorite charity? Judges can do that, but they may not do it, because a host of ethics opinions and laws say it is improper, an abuse of judicial power. Judges still do it. As one judge once said to me, “I’m a god in my courtroom.” Yes, a tin god in a narrow world. Here’s a recent example.
Last November, a lawyer attended a public trial and sat in the spectator’s section of the courtroom. The trial was the prosecution of futures trader Michael Coscia, whom the jury convicted for violating anti-spoofing legislation (flooding the market with orders for futures contracts he never intended to execute).
The lawyer, while watching the trial, took nine photos of some of the evidence that the parties introduced. The trial was public, so the court could not prevent the lawyer (or anyone else) from describing the evidence and repeating the evidence word for word (if the person had a good enough memory for that). If the evidence was a photograph or other graphic, the viewer could draw a picture of it.
During this Chicago trial, the lawyer took photos with his cell phone and then tweeted them. Judge Leinenweber prohibited all cellphones in his courtroom for this trial, which was the first of its kind in the nation. Players in the controversial “world of high-frequency trading” closely watched this trial. The lawyer accompanied his tweets with harmless explanations, such as “Programmer agrees with prosecutor that effort to stimulate market activity ‘could’ impact pricing.” An FBI agent saw the tweeting, reported it to U.S. District Judge Harry Leinenweber, who presided over the trial.
The problem was that a sign posted outside the courtroom forbade all cell phone use, photographing, recording, or broadcasting. The lawyer said it was one of the first times he had ever been in court for a case where he was an observer, not a lawyer for a party. He said he did not notice the ban on cellphone use. “I’m not used to being a spectator,” he said. The lawyer only took pictures of exhibits, not jurors or witnesses, and he deleted the tweets when he learned of the ban.
Nonetheless, the court sanctioned him for his mistake. One can question the sanction imposed on a lawyer who never violated the ban before and did not see the sign. One can also question whether the court should punish a lawyer for tweeting about a public trial, a publicness that the First Amendment protects.
However, another important issue has nothing to do with free speech, that is, the sanction: in December, a committee of federal judges ordered the lawyer to donate the money to a charity, even though, as we shall see, ethics rules, ethics opinion, and cases all say that judges cannot order individuals to contribute to charities.
Perhaps the ethics committee of the Chicago Bar Association should look into this. That is unlikely to occur: the Chicago Bar Foundation received the money. The judges ordered the lawyer to “donate” the amount of $5,000 to the Chicago Bar Foundation as his sanction.
I am a member of the Illinois Bar and, like the federal judges who ordered this sanction, I have a soft spot in my heart for the Chicago Bar Association. Still, one has to wonder what gives judges the power to order a lawyer to donate to the judges’ favorite charity. In fact, if we look at the law—rules of judicial ethics, judicial ethics opinions, and court decisions—we find that the judges should look in the mirror the next time they are in the mood to sanction someone.
The Judicial Conference of the United States has adopted a Code of Conduct for United States Judges. It rules provide that all “Federal judges must abide” by this Code, which imposes specific limits on a judge’s fund-raising activity. The judge cannot solicit donations from the parties who appear before him. The judge can only solicit money for charities “from judges over whom the judge does not exercise supervisory or appellate authority and from members of the judge’s family.” Other than that, no federal judge may “personally participate in fund-raising activities, solicit funds for any organization, or use or permit the use of the prestige of judicial office for that purpose.” No federal judge may engage in any solicitation that “might reasonably be perceived as coercive,” and ordering a lawyer or party to pay a fine to a charity is surely “coercive.” If that were not clear enough, the Federal “Committee on Codes of Conduct” One opinion after another says that judges should not be using their judicial office to raise funds for charities. Some judges do it anyway.
Besides these rules of judicial ethics, fortified by ethics opinions, there is the little problem of a statute. The Federal “Custodians of Money” Act, 31 U.S.C. § 3302, requires (with exceptions not relevant here) that any “official or agent of the United States Government” (that includes judges) “receiving money for the Government from any source shall deposit the money in the Treasury as soon as practicable without deductions for any charge or claim.”
Presumably, federal judges think that if the money goes directly to the third party, the federal official never has “received” the money. That is the kind of hairsplitting that reminds us of President Clinton who, when responding, under oath, about his affair with Monica Lewinsky, said, “It depends on what the meaning of the word ‘is’ is.”
The problem is not just on the federal level but also on the state level. We find many cases and ethics opinions on the state level all coming to the same conclusion. That should teach us that coerced donations are wrong, but that judges do it anyway—otherwise there would be not be so many cases sanctioning them for coercing payment.
For example, in 2009, the Louisiana Supreme Court ruled that a judge has no authority to order defendants to pay fines to various charitable organizations unless the organizations were themselves the victims of the crime. The judge can order restitution to the specific victim; the judge cannot order donations to third parties. The court said that the judge violated the rule in the state Code of Judicial Conduct prohibiting a judge from using his office for soliciting funds for civic or charitable organizations—the same ethics rule that applies to federal judges. In re Judge Donald R. Johnson, 1 So.3d 425 (La. 2009). The court censured the judge.
Another example is In re Shannon, 465 Mich. 1304 (2002). The magistrate judge (a court employee, not an elected judge) gave traffic offenders the “option” of buying tickets to a police department charitable event in lieu of fines and costs. “Dig deeper,” he would tell them, if they were not donating enough. The court publicly censured Judge Shannon and suspended him without pay for thirty days.
In In re Merritt, 431 Mich. 1211, the Michigan Supreme Court censured the judge who “fined” attorneys for lateness, untimely filings, etc., and then used the money to offset the cost of a fund that he created to help indigent drug and alcohol abusers who appeared before the court (a little like Robin Hood). The court not only censured the judge and but also required him to make restitution of the money he deposited in his fund. It was wrong for the judge to use “the powers of his judicial office to solicit monies from attorneys” to fund his projects.
The restitution remedy in the Merritt case is much more effective than simply censoring the judge. If courts start enforcing the rule by requiring the judge to pay, out of his own pocket, the money he ordered the defendants to pay, judges will take notice. In cases where the defendants are reluctant to upset the judge, a statute can allow anyone to sue, in the nature of a qui tam suit. The stature can authorize private citizens to sue judges in their individual capacities, forcing them to pay into the U.S. Treasury or to the state, any amounts the judges ordered paid to the judges’ favorite charities, plus paying a percentage of the recovery to the qui tam plaintiff. Once judges have to reimburse the federal government out of their own pockets, judges will stop.