Opinion
June 28, 1999.
On order of the Court, this is to advise that the Court is considering an amendment of Canon 7 of the Michigan Code of Judicial Conduct, and the adoption of a new Canon 8. Before determining whether the proposal should be adopted, changed before adoption, or rejected, this notice is given to afford any interested person the opportunity to comment on the form or the merits of the proposal. We welcome the views of all who wish to address the proposal or who wish to suggest alternatives.
As whenever this Court publishes an administrative proposal for comment, we emphasize that publication of this proposal does not mean that the Court will issue an order on the subject, nor does it imply probable adoption of the proposal in its present form.
[The present language would be amended as indicated below.] CANON 7 A JUDGE OR A CANDIDATE FOR JUDICIAL OFFICE SHOULD REFRAIN FROM POLITICAL ACTIVITY INAPPROPRIATE TO JUDICIAL OFFICEA. Political Conduct in General:
(1) A judge or a candidate for judicial office should not:
(a) hold any office in a political party;
(b) make speeches on behalf of a political party or non-judicial candidate or publicly endorse a candidate for non-judicial office.
(2) A judge or a candidate for judicial office may:
(a) attend political gatherings (including fund-raising events that honor the judiciary generally, not the individual judge by name, provided that the judge does not personally solicit funds for, or attendance at, such events);
(b) speak to such gatherings on the judge's own behalf or on behalf of other judicial candidates;
(c) contribute to a political party.
(3) A judge should resign the judicial office before becoming a candidate either in a party primary or in a general election for nonjudicial office.
(4) An organization consisting exclusively of judges that takes a position concerning the candidacy of any person running for judicial office:
(a) must identify the members of the organization, as such, by the name and title of each member, in any form of public communication of the organization's position concerning the candidacy.
(b) may not use or participate in the use of any form of public communication that the organization knows or reasonably should know is false, fraudulent, misleading, deceptive or which contains a material misrepresentation of fact or law or omits a fact necessary to make the statement considered as a whole not materially misleading, or which is likely to create an unjustified expectation about results the candidate can achieve.
B. Campaign Conduct:
(1) [Unchanged.]
(2) These provisions govern a candidate, including an incumbent judge, for a judicial office:
(a) A judge should not personally solicit or accept campaign funds, or solicit publicly stated support by improper use of the judicial office in violation of B(1)(c). A judge may send a thank-you note or other acknowledgment to a contributor.
(b) A judge may establish committees of responsible persons to secure and manage the expenditure of funds for the campaign and to obtain public statements of support for the candidacy.
(c) Such committees are prohibited from soliciting campaign contributions from lawyers in excess of$100$300 per lawyer, but may solicit public support from lawyers. It is not a violation of this provision for a committee to use a mailing list that includes lawyers to solicit more than $300 per person, provided that the following disclaimer appears on the letter or on a response card, in print that is at least the same size as the remainder of the letter or the response card:
"Canon 7 of the Michigan Code of Judicial Conduct prohibits a judicial campaign committee from soliciting more than $300 per lawyer. If you are a lawyer, please regard this as being informative and not a solicitation for more than $300."
(d) A candidate's committee may solicit funds for the campaign no earlier than180 days before a primary election or nominating conventionJanuary 1 of the year of the election, and may not solicit or accept funds later than 45 days after the date of the general election.
(e) A candidate should not use or permit the use of campaign contributions for the private benefit of the candidate or the candidate's family.
(d)(f) If a candidate is not opposed for such judicial office, the candidate or the candidate's committee shall return to the contributors funds raised in excess of the actual costs incurred or contribute such funds to the client security fund of the State Bar of Michigan, not later than January 1 following the election.(e) AnyLikewise, any candidate or committee having funds remaining after payment of all campaign expenses shall either return such funds to the contributors thereof or donate the funds to the client security fund of the State Bar of Michigan, not later than January 1 following the election.
(3) [Unchanged.]
C. Fund-Raising Other Than For Campaign Purposes Prohibited: Except as provided in 7B(2)(b), (c),
(1) [Unchanged.]
(2) No judge or other person, party, committee, organization, firm, group, or entity may accept any contribution of money or of a tangible thing of value, directly or indirectly, to or for a judge's benefit for any purpose whatever, including but not limited to, contribution for a campaign deficit, expenses associated with judicial office, testimonial, honorarium (other than for services, subject to Canon 6), or otherwise.
All funds at any times heretofore collected for campaign or any other purposes and not heretofore expended and not expended for campaign purposes in the year 1974, shall either be returned to the contributors or donated to the client security fund of the State Bar of Michigan no later than January 1, 1975.
D. [Unchanged.]
CANON 8 COLLECTIVE ACTIVITY BY JUDGES
The Canons of this Code concerning the conduct of individual judges and judicial candidates also apply to judges' associations or any other organization consisting exclusively of judges.
These proposals are controversial and unusual in that they have not been submitted to us, endorsed or even analyzed by any organization within the legal community. I oppose publishing them to the community at-large before the Court has had input on them from the legal organizations that work closely with the Code of Judicial Conduct, notably the State Bar of Michigan.
Staff Comment: The proposed amendment of Canon 7 is based, in part, on recommendations made by attorney Wallace D. Riley of Detroit. The changes in (A) relate to memberships that judicial candidates may hold and to the fund-raising events that they may attend. The changes in (B)(2) would allow candidates to personally acknowledge contributions, raise from $100 to $300 the amount that may be solicited from an individual lawyer, require a disclaimer on solicitations of more than $300, and change the beginning and ending dates of the solicitation period. This subrule also would be restructured. The change in (C)(2) would eliminate obsolete language pertaining to campaign year 1974. The proposal would add a new Canon 8 to provide that provisions concerning the conduct of individual judges and judicial candidates also apply to judges' associations or any other organization consisting exclusively of judges.
The staff comment is published only for the benefit of the bench and bar and is not an authoritative construction by the Court.
Publication of this proposal does not mean that the Court will issue an order on the subject, nor does it imply probable adoption in its present form. Timely comments will be substantively considered, and your assistance is appreciated by the Court.
A copy of this order will be given to the secretary of the State Bar and to the State Court Administrator so that they can make the notifications specified in MCR 1.201. Comments on this proposal may be sent to the Supreme Court clerk within 60 days after it is published in the Michigan Bar Journal. When filing a comment, please refer to our file No. 99-32.