RYMER, Circuit Judge:
We must decide whether a statute of the Commonwealth of the Northern Mariana Islands (CNMI) that earmarks civil and criminal fines imposed by the courts for a judicial building fund deprived Vincente Flores Kai-pat of due process of law in violation of the Fourteenth Amendment to the United States Constitution when he was fined by a judge of the CNMI superior court.
Kaipat was found guilty of various traffic offenses and was sentenced to a term of imprisonment, probation, and a fine. He challenged the fine on the ground that it was used as a source of funding for a new judicial complex pursuant to the Judicial Building Fund Act of 1990, 1 CMC § 3405, thereby creating an improper incentive for the court to levy fines and calling into question the impartiality of the trial judge in violation of Kaipat’s right to due process. The CNMI Supreme Court affirmed the trial court’s denial of Kaipat’s motion to reconsider the fine in a published opinion.
Commonwealth v. Kaipat,
No. 94-041 (CNMI Sup.Ct. Aug. 3, 1995).
We have not previously considered the due process implications of a statute earmarking funds that are generated by fines imposed by courts for criminal offenses, but the United States Supreme Court has provided bookends in
Turney v. Ohio,
273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927) (due process violated by fine imposed by mayor-judge whose compensation as judge was derived from, and whose city coffers — for which he was responsible — largely depended on, revenue from fines), and
Dugan v. Ohio,
277 U.S. 61, 48
S.Ct. 439, 72 L.Ed. 784 (1928) (due process not violated by fine imposed by mayor-judge whose compensation did not come from fines and who had no executive responsibility for city finances).
While there is little doubt that the CNMI legislature could have come up with a more felicitous way of funding construction of its courthouse, we conclude that this case is closer to
Dugan
than to
Tumey,
and that Kaipat has not shown a violation of his federal constitutional rights since the judge had no pecuniary interest in the fine and held no other position that could reasonably warrant a fear of partisan influence on his judgment.
As we have jurisdiction over Kaipat’s timely appeal, 48 U.S.C. § 1824(a) and 1 CMC § 3103, we affirm.
I
The Judicial Building Fund Act of 1990, 1 CMC § 3405,
creates a special fund within the Department of Finance known as the “Judicial Building Fund.” It provides that all criminal and civil fines collected by Commonwealth courts and paid to the treasury are to be deposited and credited to the Fund. 1 CMC § 3405(a). The Fund was established “to pay the expenses to renovate and furnish existing Commonwealth judicial facilities in an aggregate amount not to exceed $250,000, and to construct and furnish a suitable building or buildings for the judicial branch of government.” 1 CMC § 3405(b). The Governor is charged with expending the Fund and “eonsult[ing] closely with the Chief Justice as to the needs and requirements of the judicial branch for the construction of the judicial facilities.” 1 CMC § 3405(e). Other funds may also be used by the Governor to build the facilities, and any funds left over after expenses and debts for the judicial complex have been paid will revert to the General Fund. 1 CMC § 3405(d), (e).
Kaipat was sentenced on March 11, 1994, following his conviction by the court on two counts of driving under the influence of alcohol; two of reckless driving; two of refusal to submit to a breath test; and one count each of eluding a police officer, disobeying a traffic sign, speeding, unsafe passing, and following a vehicle too closely.
For these offenses a defendant may be sentenced to time in custody and may be fined up to $5,350. 9 CMC §§ 5202, 5251, 5304, 5309, 7104-7106, 7111, 7112. Kaipat was sentenced to 60 days imprisonment, with 30 days suspended for one year; he was given two years probation; he was fined in the amount of $1,000; he was required to perform 100 hours of community service; his driver’s license was suspended for one year; and he was ordered to undergo counseling at the Commonwealth Health Center.
When Kaipat moved for reconsideration of the monetary portion of his sentence, claiming that it violated his due process rights, the superior court denied the motion after considering the standards that different courts have applied in determining whether a judge’s interest in the outcome of a case implicates due process. First, it noted that some courts have held that only a “direct, personal, substantial, pecuniary interest” violates due process.
The court concluded that under this standard, § 3405 does not create such an interest for judges to levy fines because the Judicial Building Fund was created solely for the purpose of constructing improved judicial facilities, not for paying any funds to any judge, and no judge has any control over expenditures from the Fund. The superior court next observed that other courts have focused on Tumey’s “possible temptation to the average man as a judge” standard.
The court concluded that § 3405 passes muster under this standard as well because actual construction of the new judicial complex depends on other funds, not on the comparatively much smaller sums deposited in the Judicial Building Fund. Finally, the superior court considered the “appearance of justice” test employed by the Court in
In re Murchison,
349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (judge could not try case for which he served as one-man grand jury);
see also Pepsico, Inc. v. McMillen,
764 F.2d 458, 460 (7th Cir.1985) (construing Judicial Code to require recusal of judge after contact about prospective employment with law firms representing parties in pending ease on ground of appearance of impropriety), and found that a neutral observer, fully informed as to the relationship between the Judicial Building Fund and the new judicial complex at the time of Kaipat’s sentencing, would not entertain significant doubts that he would receive impartial justice in this case.
The CNMI Supreme Court affirmed, on somewhat different reasoning. In its view, the
Tumey
“direct, personal, substantial, pecuniary” standard has not been extended to other bases of recusal for judges,
Aetna Life Ins. Co. v. Lavoie,
475 U.S. 813, 106 S.Ct. 1580, 89 L.Ed.2d 823 (1986) (bias and prejudice); and
Tumey, Ward
and
Dugan
do not apply because in each, the Court was not concerned with whether an earmarking of fines alone violated a defendant’s right to a fair trial but with whether the judge had a direct pecuniary interest in convicting the defendant. Further, the court concluded, Kaipat’s allegations that the judges would benefit from a modern courthouse do not
implicate either an appearance of impropriety or indirect benefit which mandates recusal under the Fourteenth Amendment as they do not offend fundamental principles of justice under
Aetna
or our opinions in
Paradis v. Arave,
20 F.3d 950 (9th Cir.1994),
cert. denied,
— U.S. -, 115 S.Ct. 915, 130 L.Ed.2d 796 (1995), and
United States v. Heffington,
952 F.2d 275 (9th Cir.1991).
After Kaipat’s sentencing but before the superior court’s decision on reconsideration, the legislature authorized a $15 million loan from the CNMI Retirement Fund for construction of the Judicial Complex.
The Judicial Building Financing Act of 1994, N.Mar. I.Pub.L. 9-3. Ground was broken for the new Saipan Judicial Complex March 5, 1995, and construction is currently underway.
II
A
Tumey, Dugan
and
Ward
arose out of criminal trials in mayors’ courts in Ohio where the mayor also served as judge. They offer the closest guidance for resolving the due process question in this case.
In
Tumey,
the mayor fined Tumey $100 after convicting him for unlawfully possessing liquor. By statute, the mayor was entitled to retain his costs (in addition to his regular salary) as compensation for hearing liquor cases if the defendant was convicted; there was no other way the mayor could be paid for his service as judge. Half of the fines assessed in the “liquor court” went to the village of North College Hill to be used partly to pay marshals and detectives who secured convictions and who were supervised by the mayor, and partly for improvements and repairs to the village (where the mayor owned a house). Also by statute, the mayor was the village’s chief executive officer and was charged with looking after the finances of the village as well as running the liquor court. Some $11,000 of the fines collected between May and December 1923 went to the village and $696 directly to the mayor. The Court held that Tumey was denied due process of law for two reasons. First, due process was violated because the judge had “a direct, personal, substantial, pecuniary interest in reaching a conclusion against him in his case.”
Tumey,
273 U.S. at 523, 47 S.Ct. at 441. The Court found no basis in the common law for condoning a system where the judge is paid for his service only when he convicts the defendant, and could not say that it was fair for a defendant to be brought before the mayor for judicial consideration of his guilt or innocence when the possible loss of monthly fees and costs might weigh against acquittal.
Id.
at 531-32, 47 S.Ct. at 444. Accordingly, it concluded that:
Id.
at 532, 47 S.Ct. at 444. Second, the mayor’s interest in the financial condition of the village and his responsibility for it gave him a strong “official motive to convict and to graduate the fine to help the financial needs of the village.”
Id.
at 535, 47 S.Ct. at 445;
see also id.
at 533, 47 S.Ct. at 444-45. Noting that the statutory scheme was itself “calculated to awaken the interest of all those in the village charged with the responsibility of raising the public money and expending it, in the pecuniarily successful conduct of such a [liquor] court,”
id.
at 533, 47 S.Ct. at 444-45, the Court held that “[a] situation in which an official perforce occupies two practically and seriously inconsistent positions, one partisan and the other judicial, necessarily involves a lack of due process of law in the trial of defendants charged with crimes before him,”
id.
at 534, 47 S.Ct. at 445.
[ejvery procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law.
One year later, the Supreme Court limited
Turney’s
second ground in
Dugan v. Ohio,
277 U.S. 61, 48 S.Ct. 439, 72 L.Ed. 784 (1928). Whereas the duties of the mayor of North College Hall were primarily executive, the mayor of Xenia, the village involved in
Dugan,
had no executive functions but exercised only judicial functions. Although he was one of five members of the city commission, which exercised all the legislative power, Xenia was run by a city manager. The mayor’s salary was fixed and he received no fees for his judicial work. Observing that in
Tumey,
“[t]he direct dependence of the may- or upon convictions for compensation for his services as a judge was found to be inconsistent with due process of law,”
id.
at 64, 48 S.Ct. at 440, but was not the only reason for holding the Fourteenth Amendment to be violated,
the Court held that the principles in
Tumey
were inapplicable because:
[ t]he mayor of Xenia receives a salary which is not dependent on whether he convicts in any case or not. While it is true that his salary is paid out of a fund to which fines accumulated from his court under all laws contribute, it is a general fund, and he receives a salary in any event, whether he convicts or acquits. There is no reason to infer on any showing that failure to convict in any ease or cases would deprive him of or affect his fixed compensation. The mayor has himself as such no executive but only judicial duties. His relation under the Xenia charter, as one of five members of the city commission, to the fund contributed to by his fines as judge, or to the executive or financial policy of the city, is remote.
Id.
at 65, 48 S.Ct. at 440.
The Court considered yet another mayor’s court in
Ward v. Village of Monroeville,
409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972). Ward was convicted by the mayor of two traffic offenses and fined $50 on each. The mayor of Monroeville had broad executive powers, exercised overall supervision of village affairs, and had the duty to account to the village council respecting village finances. A substantial part of village income was derived from .the fines, forfeitures, costs and fees imposed by the mayor in the mayor’s court. Applying the “possible temptation” test announced in
Tumey,
the Court held:
“[P]ossible temptation” may also exist when the mayor’s executive responsibilities for village finances may make him partisan to maintain the high level of contribution from the mayor’s court. This, too, is a “situation in which an official perforce occupies two practically and seriously inconsistent positions, one partisan and the other judicial, [and] necessarily involves a lack of due process of law in the trial of defendants charged with crimes before him.”
Id.
at 60, 93 S.Ct. at 83 (quoting
Tumey,
273 U.S. at 534, 47 S.Ct. at 445). The Court distinguished this situation from
Dugan
because “[t]here the Mayor of Xenia, Ohio, had
judicial functions but only very limited executive authority.... In those circumstances, this Court held that the Mayor’s relationship to the finances and financial policy of the city was too remote to warrant a presumption of bias toward conviction in prosecutions before him as judge.”
Id.
at 60-61, 93 S.Ct. at 83.
Although not so closely on point, the Court has employed the “possible temptation” principle in other settings. For example, in
In re Murchison,
349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955), in the context of contempt proceedings conducted by the same judge who had served as the “one-man grand jury” under Michigan law, the Court held that a judge, having been part of the accusatory process cannot in the nature of things be wholly disinterested in the conviction or acquittal of the defendant.
In
Gibson v. Berryhill,
411 U.S. 564, 578-579, 93 S.Ct. 1689, 1697-98, 36 L.Ed.2d 488 (1973), the Court considered a complaint that a state administrative board of optometrists in private practice was biased and could not provide the plaintiffs bringing charges against licensed optometrists compéting with board members a fair and impartial hearing consistent with due process. Because members of the Board had a possible personal pecuniary interest in the proceedings, they were disqualified from adjudicating the dispute under
Tumey
and
Ward,
with the Court noting that
Ward
“indicates that the financial stake need not be as direct or positive as it appeared to be in
Tumey.” Id.
at 579, 93 S.Ct. at 1698. In
Hortonville Joint Sch. Dist. No. 1 v. Hortonville Educ. Ass’n,
426 U.S. 482, 96 S.Ct. 2308, 49 L.Ed.2d 1 (1976), the Court distinguished the relationship between the judges and those being judged in
Tumey, Ward
and
Gibson
from school board members and teachers who had been on strike in violation of state law being disciplined, in part on the footing that the school board members were acting as policymakers, and in part because “the teachers did not show, and the Wisconsin courts did not find, that the Board members had the kind of personal or financial stake in the decision that might create a conflict of interest....”
Id.
at 491-92, 96 S.Ct. at 2314. In
Connally v. Georgia,
429 U.S. 245, 97 S.Ct. 546, 50 L.Ed.2d 444 (1977)
(per curiam),
a system in which justices of the peace were paid for issuance but not for nonissuance of search warrants was invalidated since “[i]t is, in other words, another situation where the defendant is subjected to what surely is judicial action by an officer of a court who has ‘a direct, personal, substantial, pecuniary interest’ in his conclusion to issue or to deny the warrant.”
Id.
at 250, 97 S.Ct. at 548 (citation omitted). And in
Marshall v. Jerrico, Inc.,
446 U.S. 238, 100 S.Ct. 1610, 64 L.Ed.2d 182 (1980), the Court upheld the constitutionality of § 16(e) of the Fair Labor Standards Act, 29 U.S.C. § 216(e), under which sums collected as civil penalties for unlawful employment of child labor were to be returned to the Employment Standards Administration of the Department of Labor to reimburse costs incurred by its assistant regional administrators in determining violations and assessing penalties. It concluded that the “rigid requirements” of
Tumey
and
Ward
are inapplicable to the determinations of the assistant regional administrators, who function more like a prosecutor than a judge, but went on to note that the influences relied
upon in cases such as
Tumey, Gibson,
and
Connally
are “entirely absent” since no government official stands to profit economically from enforcement of the child labor provisions of the Act, and the salary of the assistant regional administrator is fixed by law.
Id.
at 248, 250, 97 S.Ct. at 548, 548-49. Likewise, in the Court’s view, there was no “realistic possibility” that the judgment of the administrators would be distorted by the prospect of institutional gain as a result of zealous enforcement efforts, since civil penalties collected under the statute represented less than 1% of the budget of the agency.
Id.
at 250, 97 S.Ct. at 548-49. “Unlike in
Ward
and
Tumey,
it is plain that the enforcing agent is in no sense financially dependent on the maintenance of a high level of penalties.”
Id.
at 251, 100 S.Ct. at 1617. Most recently, the Court acknowledged the “possible temptation” standard in holding that a state supreme court justice had a “direct, personal, substantial, pecuniary” interest under
Ward, Tumey
and
Murchison,
when he participated in a decision on insurance law that had the effect of enhancing the legal status and settlement value of a class action he had filed against an insurance company.
Aetna Life Ins. Co. v. Lavoie,
475 U.S. 813, 106 S.Ct. 1580, 89 L.Ed.2d 823 (1986). At the same time, however, the Court reiterated that not every question of judicial qualification affords a basis for imposing a constitutional requirement under the Due Process Clause,
id.
at 820-21, 106 S.Ct. at 1584-85 (quoting
Tumey,
273 U.S. at 523, 47 S.Ct. at 441), and declined to hold that allegations of general bias and prejudice suffice. It also dismissed Aetna’s due process challenge to participation in the decision by other justices who were members of the class, as nothing suggested that they knew about the class action and any interest that they might have had was “highly speculative and contingent.”
Lavoie,
475 U.S. at 826, 106 S.Ct. at 1588. “At some point, ‘[t]he biasing influence ... [will be] too remote and insubstantial to violate the constitutional constraints.’”
Id.
(quoting
Marshall,
446 U.S. at 243, 100 S.Ct. at 1614).
B
Kaipat argues that the situation with the Judicial Building Fund Act lies between
Tu-mey
and
Dugan
in that it does not involve the direct salary compensation benefit of
Tu-mey,
but does involve more than the complete lack of personal or work-related motivation in
Dugan.
He contends that
Ward
shows that due process can be violated through work-related partisan motivations even absent a direct, personal, substantial pecuniary interest. Kaipat emphasizes that he does not make a “bias and prejudice” argument, but rather maintains that the Judicial Building Fund Act impermissibly gives judges both a personal interest in the Fund, because completion of the Judicial Complex will improve their daily working conditions for the remainder of their terms, and “an official motive to convict and to graduate the fine” because the CNMI judiciary is dedicated to the development of the legal system in the CNMI and the CNMI needs the new judicial complex.
CNMI contends that this case is more like
Dugan
than
Tumey
since none of the judges has any direct, personal, substantial, pecuniary interest in the fine; no judge has any control over the Fund; the judges’ salary is fixed by statute and is paid without regard to fines; judges have no executive functions, only judicial functions; judges are not responsible for raising revenue; and the average judge would not be tempted by the possibility that the Governor will someday spend the Fund along with other monies on a judicial complex.
As the Court has recognized, when a judge’s interest in the outcome of a case is constitutionally disqualifying cannot be defined with any precision. However, the circumstances and relationships involved here indicate that the superior court judge who imposed Kaipat’s fine had no “direct, personal, substantial, pecuniary interest in reaching a conclusion against him in his case.”
Tumey,
273 U.S. at 523, 47 S.Ct. at 441. Neither the salary nor tenure of any CNMI judge is affected by the rate at which defendants are convicted or fined. 1 CMC §§ 3304, 3302. Judges receive their compensation whether they convict or acquit, fine or don’t fine. That compensation is fixed and does not fluctuate. CNMI judges are just
judges; they have no other governmental position, and no executive responsibilities. Their functions are entirely judicial. In this respect, they are very much like the officials in
Dugan.
To be sure, judges are only human and (along with the public, litigants and attorneys) will no doubt welcome courthouse facilities that are more comfortable, efficient and secure — if and when they are built, and if the judges are still in office to serve in them. However, this kind of interest is too contingent and speculative and insubstantial to constitute the direct stake in the outcome of a case that is constitutionally infirm.
Unlike the mayor of North College Hill in
Tumey
and the mayor of Monroeville in
Ward,
CNMI judges have no responsibility for the financial condition of the Northern Mariana Islands and no official motive to improve it. The legislature, not any judge in any capacity, has the duty of raising and appropriating funds for all government operations, including the courts. Nor is the CNMI superior court a special court (like the Ohio liquor courts), set up to enforce a specific law (like the Prohibition Act); the courts will exist whether or not persons accused of traffic offenses are prosecuted, tried, convicted, sentenced, or fined. Nor do CNMI judges hold any other position that permits them to control municipal or state policy with respect to establishing courts and enforcing particular laws, or which gives to them any interest in accumulating a fund by which other obligations (like the mayor’s in
Tumey
of making village improvements and reducing taxes) could be met.
However, CNMI judges, as judges, undeniably do have, and perhaps inherently by virtue of their positions should have, an interest in adequate facilities for the administration of justice. The question is, does this become a
constitutionally
disqualifying interest if the legislature has decided to earmark funds that come into the general treasury from fees and fines imposed in all cases, civil and criminal, for judicial facilities? For a number of reasons, we cannot believe that any judge would impose an unjustified or unreasonable fine to increase the odds that enough money would be collected overall to build a courthouse.
In general, all criminal and civil fees and fines collected by Commonwealth courts go to the Commonwealth treasury. 1 CMC § 3251. In 1990 the Legislature decided to earmark these particular sources for courthouse construction. Apart from the fact that there is a certain users’ logic to this decision, the legislature could just as easily have decided, or for all that appears in the record, could decide at any time, to earmark these same fees and fines for a new state capítol, for victims of crime, for health care, for prosecuting people who run red lights, or for any other purpose that the political branches deem worthy. As
Tumey
makes clear, “it is completely within the power of the legislature to dispose of the fines collected in criminal eases as it will ...”
Tumey,
273 U.S. at 534-35, 47 S.Ct. at 445. What it may not do is vest “the judicial power in one who by reason of his interest, both as an individual and as chief executive of the village, is disqualified to exercise it in the trial of the defendant.”
Id.
at 535, 47 S.Ct. at 445.
This is not the case here. While the Chief Justice of the CNMI Supreme Court, as the administrative head of the judiciary, submits budget requests and is consulted by the Governor on matters having to do with the judicial branch (including construction of the new judicial complex), 1 CMC §§ 3401, 3402, 3405(c), no judge has any responsibility for or control over monies in the Judicial Building Fund. Expenditures from that Fund, including when or whether there are any, and for what kind of improvement, are up to the Governor.
Although the fine in any individual case is certainly consequential to the person having to pay it, the fact that it and all other fines are earmarked for courthouse construction does not make them consequential to the judges in rendering their judicial decisions. It is not reasonable to assume that a CNMI judge might be tempted to impose a fine, or to impose a higher fine, to enhance the prospects of building a building or building a building sooner rather than later. Not only does the judge have no control over whether or when or how the monies in the Fund are
spent, but as the legislature found in 1994, the cost of a new judicial complex for which funds were earmarked in 1990 will be plus or minus $15 million. Even in 1994, fees and fines were not expected to yield more than $700,000-800,000 per year. In addition, the 1990 Act itself indicates that monies from other sources could be used for judicial building improvements; in fact, they were.
Therefore, by contrast with
Turney
and
Ward,
and by comparison with
Dugan,
Kai-pat has failed to show that the judge’s situation is one “which would offer a possible temptation to the average man as a judge,”
Tumey,
273 U.S. at 532, 47 S.Ct. at 444, or that the judge has a strong, official motive stemming from an interest apart from his judicial functions, that necessarily involves a lack of due process in convicting or sentencing defendants charged with crimes in his court,
id.
at 534, 47 S.Ct. at 445.
For these reasons we conclude that Kai-pat’s right to due process was not violated.
AFFIRMED.