Canon 7: A Judge or a Candidate for Judicial Office Should Refrain From Political Activity Inappropriate to Judicial Office¹

“A. Political Conduct in General:

(1) A judge or candidate for judicial office should not:

(a) hold any office in a political party;

(b) make speeches on behalf of a political party or nonjudicial candidate or publicly endorse a candidate for nonjudicial office.

(2) A judge or candidate for judicial office may:

(a) attend political gatherings;

(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.

B. Campaign Conduct:

(1) A candidate, including an incumbent judge, for a judicial office:

(a) should maintain the dignity appropriate to judicial office, and should encourage family members to adhere to the same standards of political conduct that apply to the judge;

(b) should prohibit public employees subject to the judge’s direction or control from doing for the judge what the judge is prohibited from doing under this canon;

(c) shall not, in connection with cases, controversies, or issues that are likely to come before the court, make pledges, promises, or commitments about conduct in office that are inconsistent with the impartial performance of the adjudicative duties of judicial office.

(d) should not knowingly, or with reckless disregard, use or participate in the use of any form of public communication that is false.

(2) These provisions govern a candidate, including an incumbent judge, for a judicial office:

(a) A candidate 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 candidate may send a thank-you note to a contributor.

(b) A candidate may establish committees of responsible persons to secure and manage the expenditure of funds for the campaign and to obtain public statements of support (including support from lawyers) for the candidacy.

(c) Such committees may solicit and accept campaign contributions from the public, including lawyers, as permitted by law.

(d) A candidate’s committee may not directly or indirectly accept funds from any committee that was established in connection with the candidate’s attempt to secure any other judicial or nonjudicial office. The committee may solicit funds for the campaign no earlier than February 15 of the year of the election, and may not solicit or accept funds 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.

(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. Likewise, 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.

(g) A candidate for judicial office may not pay an endorsing organization for its ranking or endorsement. However, a candidate for judicial office may contribute campaign funds to pay some of the costs associated with the publication of the endorsement or ranking of the candidate, provided the candidate secures from the endorsing organization an assurance, before the endorsement or ranking is made, that the endorsing organization will not:

(i) demand payment from the candidate or the candidate’s agent as a condition of the endorsement or favorable ranking,

(ii) seek any assurance from the candidate before the endorsement or ranking is made that it will be paid if it endorses or ranks the candidate favorably,

(iii) add an endorsement or favorable ranking of a different candidate in the event that the initially supported candidate decides not to pay the endorsing organization for publicizing its endorsement and favorable ranking,

(iv) prevent the candidate from publicizing the endorsement or favorable ranking independent of the endorsing organization, regardless of whether the endorsing organization itself publicizes its endorsement or favorable ranking.

(3) No judge should personally sell or permit any court or public employee working for or assigned to any court to sell fund-raising tickets or accept contributions of any kind on the judge’s behalf or on behalf of any other judicial candidate.

(C) Wind up of law practice.

(1) A successful elected candidate who was not an incumbent has until midnight December 31 following the election to wind up the candidate’s law practice, and has until June 30 following the election to resign from organizations and activities, and divest interests that do not qualify under Canon 4. If a successful elected candidate has remaining funds in a trust account after June 30 following the election and the funds remain unclaimed, the candidate must promptly transfer control of the funds to the elected candidate’s interim administrator in accordance with subchapter 9.300 of the Michigan Court Rules and Rule 21 of the Rules Concerning the State Bar of Michigan. The interim administrator must make reasonable efforts to locate the owner of the property and continue to hold said funds in a trust account for the required statutory period in accordance with the Uniform Unclaimed Property Act, MCL 567.221 et seq. This transfer of control to the interim administrator does not create a client-lawyer relationship.

(2) Upon notice of appointment to judicial office, a candidate shall wind up the candidate’s law practice prior to taking office, and has six months from the date of taking office to resign from organizations and activities and divest interests that do not qualify under Canon 4. If an appointee has remaining funds in a trust account six months after taking office and the funds remain unclaimed, the appointee must promptly transfer control of the funds to the appointed candidate’s interim administrator in accordance with subchapter 9.300 of the Michigan Court Rules and Rule 21 of the Rules Concerning the State Bar of Michigan. The interim administrator must make reasonable efforts to locate the owner of the property and continue to hold said funds in a trust account for the required statutory period in accordance with the Uniform Unclaimed Property Act, MCL 567.221 et seq. This transfer of control to the interim administrator does not create a client-lawyer relationship.” Michigan Code of Judicial Conduct, Canon 7.

 

Disclaimer: Many of the opinions in this chapter involve more than one Canon of the Michigan Code of Judicial Conduct; however, only information relevant to MCJC 7 is featured in this chapter.

 

 

Engaging in misconduct resulting in removal from office.

•Engaging in improper campaign activities. A judge “committed misconduct by allowing her staff to perform campaign tasks during work hours” in violation of MCJC 7(B)(1)(b). In re Brennan, 504 Mich 80, 84, 106 (2019). Both the judge’s judicial secretary/court recorder and law clerk/magistrate testified that, “on one occasion, they assisted [the judge] with her campaign by responding to questionnaires from news outlets during work hours”; “[staff] testimony that [the judge] was in the room performing the campaign work along with them, showed that [the judge] was aware that her staff members were performing the campaign task during work hours.” Id. at 104-105. “On another occasion, [the staff], along with [the judge], conducted online research in the courtroom regarding ‘what kind of swag’ would be used at a campaign party.” Id. at 86, 105 (judge removed from office and conditionally suspending her without pay for six years, “with the suspension becoming effective only if [she] regains judicial office during that period”; penalty included other misconduct).

 

Misusing position.

•Engaging in improper campaign activities. A judge engaged in inappropriate political activity while a judge or judicial candidate when she simultaneously ran for judge and mayor, but failed to discontinue mayoral campaign activities after she was elected to the position of judge and signed the oath of office for an upcoming six-year term; the judge “knew, or should have known, that as a judicial candidate and as a judge, she was and is subject to the rules governing political and campaign conduct as provided in [MCJC 7] and [Const 1963, art 6].” In re Sanders, 485 Mich 1045, 1047 (2010). The judge also engaged in inappropriate campaign conduct/soliciting contribution when she identified herself as treasurer of her campaign committee and solicited donations to her campaign on her website; “[a]s a judicial candidate, [the judge] knew or should have known that [MCJC 7(B)(2)] prohibits a candidate for judicial office from acting as treasurer or personally soliciting or accepting campaign funds.” Sanders, 485 Mich at 1048. Further, the judge “fail[ed] to resign judicial office before becoming a candidate either in a party primary or in a general election for non-judicial office, in violation of [MCJC 7(A)(3)]”; “ma[de] speeches on behalf of a non-judicial candidate (herself) or publicly endors[ed] a candidate for non-judicial office, in violation of [MCJC 7(A)(1)(b)]”; and personally solicited campaign funds, in violation of MCJC 7(B)(2)(a). Sanders, 485 Mich at 1048-1049 (judge publicly censured and suspended for 21 days without pay).

Balance between permissible speech and improper communication.

•No violation for communication that was substantially true despite inaccuracies, or mere rhetorical hyperbole. MCJC 7(B)(1)(d) “states that a judicial candidate ‘should not knowingly, or with reckless disregard, use or participate in the use of any form of public communication that is false.’” In re Chmura (After Remand), 464 Mich 58, 92-93 (2001). “When analyzing whether a judicial candidate has violated the canon, . . . the communication at issue must have conveyed an objectively factual matter.” Id. at 93. “Thus, speech that can be reasonably interpreted as communicating hyperbole, epithet, or parody is protected, at least under [MCJC 7(B)(1)(d)].” Chmura, 464 Mich at 93. “Similarly, an expression of opinion is protected under the canon as long as it does not contain provably false factual connotations.” Id. “If the communication at issue sets forth objectively factual matters, the communication must then be analyzed to determine whether the statements communicated are literally true.” Id. “If they are, the judicial candidate will not be in violation of [MCJC 7(B)(1)(d)]”; “[h]owever, if the public communication conveys an inaccurate statement, the communication, as a whole, must by analyzed to determine whether ‘the substance, the gist, the sting’ of the communication is true despite such inaccuracy.” Chmura, 464 Mich at 93. “Once it has been determined that a judicial candidate has, in fact, made a false public communication, the inquiry then focuses on whether such communication was made knowingly or with reckless disregard.” Id. Accordingly, the “respondent did not violate [MCJC 7(B)(1)(d)]” where “[a] review of the [campaign communications at issue] reveal[ed] that the communications were either literally true, substantially true despite their inaccuracies, or communicated mere rhetorical hyperbole.” Chmura, 464 Mich at 93.

 

 

 

Grievance investigations concerning various matters outside of court.

•Remedying improper charitable donation made with campaign funds. A judge who donated leftover money in their campaign bank account to a charity at the conclusion of their campaign technically violated MCJC 7(B)(2)(f), but once made aware of the violation, sent the same amount of money to the State Bar Client Security Fund to remedy the violation. JTC Case Summary, 21-3 (dismissed with an explanation).

•Analysis of improper wind up activity. A judge who self-reported that they kept a private IOLTA account open after taking the bench to cover checks that had not yet cleared did not violate MCJC 7(C)(1) because the violation was in good faith, no one suffered any harm, the judge gained no profit, and no client funds were ever at risk. JTC Case Summary, 21-5 (dismissed with an explanation).

•Listing judiciary names as members of campaign fundraising committee. A judge listed the names of other judges and judicial officers as members of their campaign fundraising committee, in violation of MCJC 7(B)(2)(a) and MCJC 7(B)(3). JTC Case Summary, 14-7 (dismissed with an admonition).

•Publicly endorsing candidate. A judge gave permission for a sign supporting a candidate for nonjudicial office to be placed on their property which amounted to a highly visible public endorsement, in violation of MCJC 7(A)(1)(b). JTC Case Summary, 14-9 (dismissed with an admonition).

•Publicly endorsing candidate. A judge’s photograph was used without authorization in an acquaintance’s campaign for state representative which would reasonably cause any member of the public to conclude that the judge was supporting the candidate, in violation of MCJC 7. JTC Case Summary, 14-5 (dismissed with a caution).

•Serving in dual roles. A referee held elective and judicial office at the same time by simultaneously serving as a city commissioner and a referee, in violation of MCJC 7(A)(3). JTC Case Summary, 19-4 (dismissed with a caution).

 

 

Guidance on engaging in various matters outside of court.

•Conducting campaign activity on social media. “Judicial officers and judicial candidates are not limited to conducting campaign activity on only a judicial campaign social media account”; “[s]ince all social media platforms require a mutual consent or acknowledgment to follow on personal or professional social media accounts, there is a general understanding that those who do not want to see such material are able to easily block, hide, or ignore the postings by judicial officers and judicial candidates on those personal and professional accounts.” State Bar of Michigan Ethics Opinion, JI-147, November 1, 2019. “For that reason, judicial officers and judicial candidates are expected to follow the rules for advertising and solicitation that would apply to in-person interactions, simply transferring these guidelines to social media outlets. Mirroring in-person campaign rules, judicial officers and judicial candidates may use social media to notify and advertise their own campaigns on personal and professional accounts, but solicitation and acceptance of campaign contributions are reserved only for judicial candidates’ campaign committees.” Id. MCJC 7(B) “already addresses the issues of judicial officers’ interactions with individuals regarding judicial campaigns and solicitation of campaign contributions” and “[i]n the current iteration, the MCJC is silent as to its interpretation and instruction for social media use by judicial officers”; accordingly, it appears that “social media accounts are permissible for judicial officers in Michigan, so long as the online activity does not violate any of the already established Canons.” EO JI-147. “This is not to be confused with political campaign solicitations, which is prohibited by [MCJC 7(A)]”; “just as one is limited during in-person interactions for campaign contributions, so is the judicial officer and the judicial candidate limited online” and “[j]udicial officers and judicial campaigns must not use their personal or professional social media platforms to solicit or accept campaign contributions, just as they would not be allowed to during in-person communications either.” EO JI-147.

•Moderating a forum conducted by a political party. Under MCJC 7(A)(1), “[w]ith regard to political conduct, judges cannot make speeches on behalf of a political party or publicly endorse a candidate for non-judicial office, but may attend political gatherings and speak at such gatherings on the judge’s own behalf or for other judicial candidates”; accordingly, “a judicial officer may serve as moderator at a forum on criminal justice initiatives conducted by a political party provided the judge does not comment on pending or impending cases in any court; the judge does not take a position on a legislative initiative that would preclude the judge from later presiding over a case or controversy involving the matter; and, the judge’s participation does not interfere with the performance of the judge’s judicial duties.” State Bar of Michigan Ethics Opinion, JI-121, April 23, 1999.

•Attending a dinner sponsored by a political party. “A judge may not attend a testimonial dinner sponsored by a political party where the price of admission exceeds the reasonable cost of attendance,” because “[i]t is unethical for a judge to use or permit the use of the prestige of judicial office to raise money for a political party.” State Bar of Michigan Ethics Opinion, JI-115, August 15, 1997.² “While it is clear that judges may attend political gatherings and make individual contributions to political parties, the Michigan Code of Judicial Conduct does not permit judges to personally solicit money for any purpose–not even for the judge’s own election campaign.” Id.

•Advertising for judicial office. “All advertising generated by a candidate seeking judicial office must avoid misrepresenting the candidate’s own qualifications and the qualifications of the candidate’s opponent”; “[i]t is misleading and unethical for a candidate for judicial office to refer to an opponent’s rating by a local bar association as ‘not recommended’ in the candidate’s campaign literature when, in fact, the bar association’s actual rating of the opponent’s [is] ‘qualified, but not recommended.’” State Bar of Michigan Ethics Opinion, JI-120, March 22, 1990. Under MCJC 7(B)(1)(d), “[a]ny advertising generated by a candidate seeking judicial office must avoid misrepresenting the candidate’s own qualifications as well as those qualifications of the candidate’s opponent,” such as “where a candidate ‘embellishes’ the candidate’s own qualifications in campaign literature or speeches, making the statements misleading to the public.” EO JI-120. “However, the prohibitions found in [MCJC 7(B)(1)(d)] . . . are no less applicable to a candidate whose campaign literature omits a fact concerning an opponent’s qualification,” and “[w]hen a fact is necessary to make the candidates campaign statement considered as a whole not materially misleading it must be included in all announcements.” EO JI-120. “Therefore, great care and precautions should be taken by a judicial candidate to ensure the content of the candidate’s campaign literature or speeches is truthful, accurate, and non-misleading.” Id.

•Soliciting support from jurors. “A judge may not personally solicit public statements of support from persons who have served as jurors in the judge’s court” in contravention of MCJC 7(B)(2)(a). State Bar of Michigan Ethics Opinion, JI-104, October 5, 1995.

•Attending political gathering and distributing campaign materials. “A judicial candidate may attend and distribute personal campaign literature at an event held for a nonjudicial candidate”; however, “[a] judicial candidate may not afford a particular opportunity for the distribution of a nonjudicial candidate’s campaign materials at an event given for the judicial candidate.” State Bar of Michigan Ethics Opinion, JI-93, June 28, 1994. “It is safe to conclude that attendance and speech at political gatherings would not prohibit the promulgation and distribution of a judicial candidate’s campaign material with or without the judicial candidate’s immediate presence,” but “[p]roviding special facilities such as a card table for a nonjudicial candidate’s campaign materials might easily be interpreted as a promotion or endorsement of the candidate’s election,” and “[s]uch conduct is impermissible by a judge or judicial candidate.” Id.

•Appointing family member as campaign treasurer. “A judicial candidate may not appoint the candidate’s father-in-law to serve as the candidate’s campaign treasurer” because it “would not be in accord with the [MCJC 7] policies underlying the separation of a judicial candidate from solicitation and acceptance of campaign funds.” State Bar of Michigan Ethics Opinion, JI-90, April 15, 1994.

•Fundraising. “A judicial candidate’s campaign committee may not send invitations to a fund raiser prior to the [fundraising period starting on February 15 of the year of the election³]”; however, “[a] judicial candidate’s campaign committee may use funds voluntarily contributed by the candidate and others prior to the [fundraising period starting on February 15 of the year of the election] to reserve a hall or order catering for a fund raising event to be held within the [fundraising period starting on February 15 of the year of the election].” State Bar of Michigan Ethics Opinion, JI-78, February 4, 1994. “Although fund raising cannot begin until the time period set forth in [MCJC 7(B)(2)(d)], the work of a planning committee or campaign committee may begin prior to that time period”; “[t]his is not prohibited since [MCJC 7(B)(2)(d)] addresses the solicitation rather than the acts in preparation for fund raising,” and “[t]o hold otherwise, would effectively eliminate the activities which a planning committee is allowed to do as part of its function.” EO JI-78.

•Forming a campaign committee. “A judicial candidate may form and register a campaign committee prior to the [fundraising period starting on February 15 of the year of the election⁴],” and “may make personal contributions to the registered campaign committee, and the campaign committee may make expenditures, prior to the [fundraising period starting on February 15 of the year of the election].” State Bar of Michigan Ethics Opinion, JI-74, October 18, 1993. “Unsolicited campaign contributions may be accepted by the registered campaign committee prior to the [fundraising period starting on February 15 of the year of the election], but may be expended only within the fund raising period.” Id. “A judicial candidate should campaign under the candidate’s full name so as to avoid any mistaken identity”; accordingly, “[i]n order to avoid ethical challenge,” an individual who “plans to be a candidate for a judicial seat [currently] held by a spouse who will not seek re-election . . . must exercise special care respecting name, identity, qualification, background and incumbency.” Id.

•Participating in fundraising for a political party. “A judge may not participate in fund raising for a political party and its candidates by calling bingo numbers, selling bingo cards, and handling money at the event.” State Bar of Michigan Ethics Opinion, JI-73, October 6, 1993. “MCJC 7 directly addresses a judge’s political activities”: “A judge may attend political gatherings, speak to such gatherings on the judge’s own behalf or on behalf of other judicial candidates, and may personally contribute to the political party,” but “[a] judge may not make speeches on behalf of a political party or nonjudicial candidate, and may not publicly endorse a candidate for nonjudicial office.” EO JI-73.

•Reporting receipt of refund from overcharge on campaign services. “A judicial candidate who receives a refund due to an overcharge for campaign services, which refund arrives after accounts for the judicial campaign have been closed, may apply the late-arriving refund to any unsatisfied campaign debts.” State Bar of Michigan Ethics Opinion, JI-63, December 18, 1992. MCJC 7(B)(2)(d) “must be read to prohibit acceptance of campaign funds after the date of the election; a refund on a paid expense is not a ‘campaign fund.’” EO JI-63. MCJC 7(B)(2)(f) “stipulates disposition of excess campaign funds after payment of all campaign expenses; [where] all campaign expenses were not covered by available campaign funds, . . . there was no excess.” EO JI-63. Moreover, if “[t]he refund is legally due the candidate under the contract for the [campaign] services[,] nothing in the ethics rules prohibits a judge or a candidate from receiving benefits derived from a contract.” Id.

•Using excess campaign funds. “Excess funds from a judicial election campaign may not be used to finance a postelection investiture celebration” State Bar of Michigan Ethics Opinion, JI-60, December 1, 1992. MCJC 7(B)(2)(f) provides that “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.” “Since by definition a victory party has no influence on the nomination or election of a candidate, arguably a victory party is not a campaign expense”; “[t]herefore, excess funds from a judicial campaign may not be used for an investiture celebration.” EO JI-60. Further, “[n]either a judge nor the judge’s campaign committee may accept donations of money or anything of value toward the costs of a postelection investiture celebration.” Id. However, “[t]he ethics rules do not prevent a successful judicial candidate from hosting a postelection victory party for family, friends and volunteers when paid for out of the successful candidate’s own resources.” Id.

•Sitting with spouse at political event. “A judge’s spouse may serve on the campaign committee of a nonjudicial candidate and appear as a committee member on campaign letterhead.” State Bar of Michigan Ethics Opinion, JI-47, March 6, 1992. “It is clear under [MCJC 7(A)(1)(b)] that a judge may not personally serve on the campaign committee for a political candidate”; however, “it is not simply the judge’s conduct which must be restricted,” and “[o]ccasionally, conduct of members of the judge’s family may be restricted in order to preserve the independence of the judiciary and confidence in the legal system[.]” EO JI-47. MCJC 7(A)(1)(b) “prohibits a judge from endorsing a candidate for non-judicial office”; “[w]hile a sheriff’s election is a nonjudicial office, a spouse serving as a campaign committee member and appearing on campaign letterhead does not constitute the judge’s public endorsement of that candidate.” EO JI-47. “A judge may sit on the dais with the judge’s spouse who is serving as co-chairperson of a political party social event.” EO JI-47. MCJC 7(A)(2)(a) “specifically allows a judge to attend a political gathering, so long as the judge does not ‘publicly endorse’ the nonjudicial candidate, nor hold a political office.” EO JI-47. “When considering the possibility of any benefit to the sponsoring political organization from the judge’s attendance at a dinner as spouse of an organizer, it seems that the benefit is minimal”; “[t]he judge is a guest like anyone else” where the judge “is not giving any speeches, nor is the judge responsible for organizing the dinner.” Id. Accordingly, “[t]he judge is not overstepping boundaries by sitting on the dais with the judge’s spouse at a political gathering.” Id.

•Placing an advertisement in a political party’s ad book. “A judge or candidate may place an advertisement in a political party’s ad book so long as the content of the advertisement does not constitute a speech on behalf of a political party or nonjudicial candidate or an endorsement of a candidate for nonjudicial office.” State Bar of Michigan Ethics Opinion, JI-36, April 15, 1991. “If the advertisement is merely a ‘tombstone’ ad, and does not constitute a speech on behalf of a political party or nonjudicial candidate or an endorsement of a non-judicial candidate, it would be permissible under [MCJC 7(A)(2)].” EO JI-36. An acceptable example would be:

paid for by

JUDGE XXXX XXXXXX

CIRCUIT JUDGE

“Placing such a ‘tombstone’ advertisement in a political party’s ad book is . . . even less suspect than attending a political gathering [permissible under [MCJC 7(A)(2)(a)]] or contributing to a political party [permissible under [MCJC 7(A)(2)(c)]]” because “[i]t is a contribution and an appearance, and nothing more.” EO JI-36.

•Giving away fundraiser tickets. “A judge may attend a fundraiser held for a nonjudicial candidate, and may participate in campaign activities which do not constitute a public endorsement of the nonjudicial candidate”; “[t]he same rules apply to a judge’s participation in a campaign for a nonjudicial candidate who is a relative of the judge or a member of the judge’s household.” State Bar of Michigan Ethics Opinion, JI-30, November 15, 1990. While “[t]he Canon does not directly address the question of proper ‘campaigning’ for a nonjudicial or political candidate,” MCJC 7(A) “does specifically allow a judge to attend a political gathering and to contribute to a political party, as long as the judge does not hold a party office of publicly endorse a nonjudicial candidate.” EO JI-30. “If a judge can buy a fundraising ticket, the judge surely cannot be prohibited from attending the event.” Id. “Since [MCJC 7(A)(2)(a)] specifically allows attendance at ‘political gatherings’ and a fundraiser for a nonjudicial candidate is clearly a ‘political gathering,’ a judge may attend fundraisers for nonjudicial candidates.” EO JI-30. “The judge’s presence in and of itself does not constitute a ‘public endorsement’ of the type prohibited by [MCJC 7(A)(1)(b)].” EO JI-30. “Similar logic would allow a judge to give away extra fundraising tickets the judge has purchased but cannot use.” Id. Regarding “the nature of active campaigning a judge may volunteer for a nonjudicial candidate,” “[m]any campaign activities are performed behind the scenes, e.g., stuffing envelopes, voter registration drives, placing ads, writing speeches,” and “[a] judge is not prohibited from participating from participating in this type of activity for a nonjudicial candidate.” Id. “Other types of activity of a ‘public’ nature are prohibited, i.e., giving speeches, handing out campaign literature, displaying bumper stickers, signing letters and soliciting votes.” Id. “Building yard signs for a campaign most properly falls within the category of ‘behind the scenes’ participation and is not prohibited’; however, “[s]oliciting persons for display of signs in the yard or volunteering to set up the signs in the yards of persons who consent is ‘public activity,’ could be construed as a ‘public endorsement’ of the nonjudicial candidate, and should not be performed by judges.” Id. “When the nonjudicial candidate is a member of the judge’s household or a relative, there is a strong public perception that the judge supports the relative’s candidacy.” Id. “The Code, however, makes no exception for nonjudicial candidates who may be presumed to have a judge’s support.” Id. “Campaign events should not be held at the judge’s home or at other property owned by the judge, even when it is also the property of the nonjudicial candidate.” Id. “Factual information about the nonjudicial candidate’s background or family should not tie the candidacy to the prestige of the judge’s office.” Id.

•Participating in a public forum during an election campaign. “A judicial candidate may participate in a public forum in the course of an election campaign, provided the candidate does not create the impression that, if elected or re-elected, the candidate would act with bias or partiality toward a particular class or group”; under MCJC 7(B)(1), “[i]t is not unethical, per se, for a judicial candidate to make general statements of political philosophy.” State Bar of Michigan Ethics Opinion, JI-27, August 1, 1990.

•Soliciting campaign contributions. “A judicial candidate may not solicit or accept campaign contributions at any time”; however, “[a] judicial candidate’s campaign committee may accept unsolicited campaign contributions prior to the [fundraising period starting on February 15 of the year of the election⁵] preceding the primary election or nominating convention, up to and including general election day.” State Bar of Michigan Ethics Opinion, JI-17, January 30, 1990. “Ethics rules do not govern the conduct of persons or committees not directly associated with the judicial candidate or the judicial candidate’s campaign committee” “to the extent their activities are ‘unsolicited’ and unendorsed by the candidate.” Id.

•Soliciting campaign contributions. “It is improper for a judicial candidate to solicit campaign contributions before the judicial office is lawfully created”; “MCJC 7 is the exclusive authority for the timing of campaign solicitations,” and “[u]ntil the judgeship has been created, there is no way to calculate solicitation [no earlier than February 15 of the year of the election⁶].” State Bar of Michigan Ethics Opinion, JI-16, January 30, 1990. “Accordingly, a lawyer aspiring to become a judge must first await lawful creation of the judgeship prior to the solicitation of campaign funds.” Id.

•Soliciting campaign contributions. Under MCJC 7(B)(2)(c), “[a] judicial candidate’s campaign committee may solicit [campaign contributions] from political action committees which are in fact an alter ego of a lawyer or a law firm.” State Bar of Michigan Ethics Opinion, JI-2, January 28, 1989. “No literal prohibition prevents the acceptance of contributions from political action committees”; accordingly, “[a] judicial candidate’s campaign committee may accept unsolicited money or in-kind campaign contributions from political action committees, unless the contribution appears to be motivated by a desire to have influence over the candidate.” Id.

•Including name of judicial candidate with nonjudicial candidates in third party communication. “The inclusion of the name of a judicial candidate in a third party’s communication with nonjudicial candidates does not constitute a public endorsement of the nonjudicial candidate by the judge and does not in itself constitute improper conduct by the judge.” State Bar of Michigan Ethics Opinion, JI-11, October 23, 1989. MCJC 7 “allows a judge to attend political gatherings and individually participate in partisan political activities; a judge’s participation, although visible, is not considered an impermissible ‘endorsement.’” EO JI-11. Because “the communication involved is done by someone other than the judge and has not been solicited by the judge, . . . a judicial candidate is [not] required to attempt to have it retracted” under MCJC 7. EO JI-11.

•Repaying campaign loans. “A judicial candidate’s campaign committee should first repay loans to other creditors before repaying loans made by the candidate to his committee” because “[t]hough it is proper for a candidate to loan the committee monies and be later reimbursed from its funds, . . . establishing first priority to those funds violates the spirit if not the language of [MCJC 7(B)(1)(a), MCJC 7(B)(2)(e), and MCJC 7(B)(2)(f)] where a candidate ‘. . . should maintain the dignity appropriate to judicial office . . . should not use or permit the use of campaign contributions for the private benefit of [the candidate], . . . return to the contributors funds raised in excess of the actual costs incurred[.]’” State Bar of Michigan Ethics Opinion, JI-7, July 7, 1989. “[T]he circumstance of first priority repayment gives the appearance of private benefit to the candidate to the exclusion of other lenders or contributors, particularly where shortfall results.” Id. “A judicial candidate may not permit others to voluntarily pay campaign creditors after the election,” and “[a] candidate, successful or not, may not accept contributions after the election from friends or relatives to retire campaign debts.” EO JI-7. “[I]t is clear campaign debts must be retired by funds solicited or accepted within the time frames outlined in [MCJC 7(B)] and ceasing on election day,” and “[t]o permit anyone to pay the just campaign debts directly to campaign creditors circumvents [MCJC 7(B)] to accomplish indirectly what it cannot do directly, i.e., accept post-election funds, and is thus forbidden.” EO JI-7. “This applies to any candidate, whether successful or not, regardless whether the willing donor is a stranger, friend, or relative.” Id.

•Paying campaign expenses. “A candidate for judicial office may retain and use a contribution to retire campaign expenses under circumstances where a check was mailed prior to the close of the general election, but received after the date of the general election.” State Bar of Michigan Ethics Opinion, JI-5, April 11, 1989. MCJC 7(B)(2)(d) states that a candidate “may not accept funds after the date of the general election”; “the mailing of a campaign contribution the day of the election and its receipt the following day satisfies the requirements” of the Canon. EO JI-5. Where “the contribution was made during the general election by delivery to the postal system,” “mailing on the last day is recognized . . . to be timely.” Id.

•Making public statements. “A candidate for state supreme court justice may criticize the majority portion of a divided opinion of that court, and the legal philosophy that underlies that portion of the opinion.” State Bar of Michigan Ethics Opinion, C-227, November, 1982. “[T]he underlying purpose of the Michigan Code of Judicial Conduct is to further the effectiveness of the judicial system in a democratic society,” and “[t]o place undue restraints on criticism of Supreme Court opinions by candidates for the Supreme Court has serious constitutional implications, as well as ethical considerations.” Id. “[T]he effectiveness of the judicial system will be promoted by a free and open public discussion concerning opinions by and legal philosophies of incumbent justices.” Id. However, “criticism or debate must in all instances be fair, reasonable and just, and must not create an impression that the candidate, if elected or re-elected, would act with bias or partiality favorable to a particular class or group. Id. “A candidate should never make statements that are false or misleading, or unjustly attack an incumbent judge.” Id.

 

Guidance on serving on various organizations.

•Serving on planning committee for judicial office. “[A] sitting judge or a judicial candidate may be a member of their own planning committee for judicial office provided it is separate and apart from their campaign committee and that distinction is clearly delineated, and that the sole function of the planning committee is to plan the strategies for the campaign for the judicial office.” State Bar of Michigan Ethics Opinion, JI-152, August 24, 2022. “Due to the restrictions of MCJC 7,” “[a] judge may not be a member of their own campaign committee for judicial office.” EO JI-152.

•Serving on political action committee. “A judge may not serve on a legislative affairs and political action committee whose mission is to support pro-business oriented candidates to partisan or nonpartisan offices.” State Bar of Michigan Ethics Opinion, JI-65, February 25, 1993. “It is clear that a judge should refrain from participating in a process that publicly endorses a candidate for nonjudicial office, although [MCJC 7(A)(2)] does permit judges to ‘attend political gatherings’ and to ‘contribute to a political party.’” EO JI-65. “A judge’s membership and participation on a committee for the purpose of screening and providing public support of legislative candidates is therefore unethical.” Id. “In regard to supporting candidates for judicial office, a judge’s endorsement may be subject to criticism if it is demonstrated that the basis of the endorsement is to support the election of pro-business individuals.” Id. “The judge as well as the judicial candidate would incur the appearance of being predisposed in favor of pro-business interests or members of the Chamber of Commerce and would face recusal in legal proceedings involving such interests”; “[t]herefore, a judge should refrain from participating in any function of this subcommittee of the Chamber of Commerce.” Id.

•Serving on board of organization with political ties. “A judge may not serve as a member of the board of directors of a charitable, nonprofit organization which is under the auspices of a political party.” State Bar of Michigan Ethics Opinion, JI-22, May 16, 1990. “It is not difficult for the public to confuse serving on the board of a democratic party foundation with holding political office.” Id. MCJC 7(A)(1)(a) “prohibits a judge from holding any office in a political party.” EO JI-22. “Though serving on this particular board is not the same as holding political office, any appearance of impropriety or perception of impropriety by the public should be avoided.” Id. “In sum, any accomplishments or misfortunes of the proposed charitable foundation accrue to the benefit or disadvantage of the county democratic party, and the national party in general,” and “[a] judge should not be a party to such an endeavor.” Id.

•Serving on campaign committee of other judicial candidate. “A judge may not be a member of the campaign committee of another judge or candidate for judicial office” and “may not act in the capacity of treasurer, either as a member of the campaign committee or otherwise, for another judge or candidate for judicial office.” State Bar of Michigan Ethics Opinion, JI-14, October 12, 1989. “[B]ecause one of the primary functions of a campaign committee is the solicitation and acceptance of campaign funds, . . . a judge is prohibited from serving as a member of the campaign committee of another person seeking judicial office” and “is prohibited from acting as treasurer of a campaign committee, when the judge is prohibited from serving on that committee.” Id. However, “[a] judge may be a member of a ‘planning committee’ of another judge or candidate for judicial office, provided the ‘planning committee’ is separate and apart from any campaign committee and that distinction is clearly delineated, and that the sole functions of the ‘planning committee’ are to plan the strategies for the campaign for the judicial office.” Id.

 

Guidance on serving in dual roles.

•Serving as referee and city council member. “A friend of the court referee is required to resign as referee prior to becoming a candidate for city council.” State Bar of Michigan Ethics Opinion, JI-59, November 15, 1992. MCJC 7(A)(3) states that “a judge should resign the judicial office before becoming a candidate either in a party primary or in a general election for nonjudicial office.” “A friend of the court referee is a ‘judge’ for purposes of [the MCJC],” and “[t]he city council position is a ‘non-judicial office’ but there is no ‘party primary’ or ‘general election.’” EO JI-59. However, “the position of city council member is clearly a political position” and “is also a position in the legislative branch of government; holding positions in two branches of government is prohibited.” Id.

•Serving as magistrate and township clerk. “All court magistrates are subject to the Code of Judicial Conduct and may not simultaneously hold a judicial office and a non-judicial partisan position.” State Bar of Michigan Ethics Opinion, JI-10, September 14, 1989. MCR 9.201(B)(2) defines judge to include a magistrate; therefore, “appointed lay-magistrates are subject to the provisions of the Code of Judicial Conduct because they exercise judicial powers.” EO JI-10. MCJC 7(A)(1)(a) “precludes a judge or a candidate for judicial office from holding any office in a political party,” and MCJC 7(A)(3) “requires a judge to resign from the bench before becoming a candidate for non-judicial office.” EO JI-10. MCJC 7 “is grounded on the precept that judicial officers should earnestly adhere to impartial judicial considerations uninfluenced by partisan political persuasions.” EO JI-10. Accordingly, “[a] full-time nonlawyer judicial district court administrator-magistrate [who] also is an elected township clerk for the judicial district” “must resign from one of the two positions.” Id. “Should the administrator-magistrate elect to resign from the non-judicial office of township clerk, then she/he would be obligated to adhere to all provisions of the Code of Judicial Conduct and continue to be subject to the jurisdiction of the Judicial Tenure Commission.” Id.

 

Guidance on lending support.

•Donating to a nonjudicial candidate’s campaign. “A sitting judge may make a private monetary donation to a nonjudicial candidate’s campaign”; “[e]ven though the candidate must publish a financial report of donations, the contribution would not amount to a ‘public endorsement’ of the candidate.” State Bar of Michigan Ethics Opinion, JI-145, June 15, 2015. “Given the [2013] amendments of [the Code of Judicial Conduct] allowing judges to be more involved in fundraising activities, a campaign contribution to a nonjudicial candidate, without more, is not ethically prohibited.” Id.

•Contributing to a bond issue. “A judge may make a financial contribution to a group supporting a bond issue to build a new school in the school district in which the judge resides” and “may also allow a yard sign to be placed in the judge’s yard, indicating support for the bond issue.” State Bar of Michigan Ethics Opinion, JI-116, November 7, 1997. “[C]ontribution to the group supporting the bond issue is not improper under [MCJC 7(A)],” and “endorsement of a school bond issue by the putting of a yard sign in the judge’s yard, would not be improper political activity prohibited by [MCJC 7(A)].” EO JI-116. While “[d]isplaying yard signs for a nonjudicial candidate would be prohibited by [MCJC 7(A),] the Canon is silent as to other types of elections, such as school bond elections.” EO JI-116.

•Contributing to a political party. “A judge or judicial candidate may make a general contribution to a political action committee”; “[n]o ethics provision prohibits a group of judges, or a judges’ organization, from making contributions to political action committees under the same conditions permitted to individual judges.” State Bar of Michigan Ethics Opinion, JI-105, August 18, 1997. MCJC 7(A)(1)(b) “prohibits a judge from publicly endorsing a candidate for nonjudicial office”; “[s]ince the Code explicitly prohibits endorsement for nonjudicial candidates and is silent on endorsements of judicial candidates, it is well accepted that judges may endorse, and therefore contribute to and participate in the campaigns of, judicial candidates, as long as the judge does not engage in solicitation of funds.” EO JI-105. MCJC 7(A)(2)(c) “allows a judge to contribute to a political party,” and “[a] contribution to a political party may be used to support party functions, such as general fundraisers, or may be used to support candidates of the party’s choice”; “[t]here is nothing in the Michigan Code of Judicial Conduct which suggests that a contributor to the political party must control the spending of the contribution or otherwise earmark the funds for certain purposes,” and “[a]ny financial contribution to the party generally, as opposed to a contribution to a particular candidate, is permitted.” EO JI-105.

•Supporting a judicial candidate. “A judge may allow the judge’s name and judicial title to be used in a campaign brochure and a radio [advertisement] in which the judge is quoted as supporting a judicial candidate judge, as long as the endorsement is not used for fundraising.” State Bar of Michigan Ethics Opinion, JI-95, August 1, 1994. “A judge is not prohibited from endorsing judicial candidates by law or ethics rules,” but “a judge may not solicit funds nor engage in fundraising for a judicial candidate, and the endorsement proposed may not be used for fundraising.” Id.

•Endorsing a potential judicial candidate. “Ethics rules do not prohibit a judicial candidate from engaging in campaign activities prior to the [fundraising period starting on February 15 of the year of the election⁷],” and “[i]n order to determine whether there is sufficient support to seek judicial office, a prospective candidate may form a planning committee consisting of lawyers and judges, send letters to individuals on letterhead showing the names of the planning committee members, and ask whether the recipients will support the candidate, work on the campaign, or display campaign signs” under MCJC 7(B)(2)(b). State Bar of Michigan Ethics Opinion, JI-81, February 25, 1994. However, “[a] prospective candidate may not seek a public endorsement prior to announcing candidacy.” Id.

•Sponsoring a youth sports team with campaign funds. “A judicial candidate may spend campaign funds on sponsorship of a youth sports team so long as the information displayed on the schedule and uniforms of the team do not misrepresent the candidate’s identity, qualifications, or present position and includes the necessary identifying information.” State Bar of Michigan Ethics Opinion, JI-58, October 15, 1992. “Campaign communications must include the name and address of the person or group sponsor paying for the communication,” and “[t]he advertisement (name on uniform) may not be false, fraudulent, deceptive or misleading or create a false impression through emphasis of size, color or style type.” Id. “It must also clearly indicate that it is a campaign advertisement and may not misrepresent the identity, background or any other fact including the possible impression of incumbency for a judicial candidate who is not currently a judge.” Id. “In the present instance, the uniforms and other promotional items for the team would continue to be used throughout the playing season, and beyond the campaign period.” Id. “If the slogans used and promotional items purchased by the judicial campaign are proper when expended, i.e., do not detract from the dignity of the office or performance of judicial duties, and are not misleading or constitute pledges of conduct in office, they may continue to be used by the team after the campaign period is over.” Id.

•Endorsing a candidate to the board of directors of a local bar association. “A judge may endorse a candidate to the board of directors of a local bar association.” State Bar of Michigan Ethics Opinion, JI-53, April 27, 1992. MCJC 7(A)(1)(b) “is premised on the requirement that a judge should not involve the prestige of the judicial office in contested political election campaigns and clearly indicates that a judge may not publicly endorse a candidate for non-judicial office”; MCJC 7(A)(2)(b) “appears to limit a judge’s ability to speak at political gatherings on behalf of the judge and other judicial candidates.” EO JI-53. “The election for the board of directors of a local bar association is . . . a non-judicial office without party primary or general election and the election is not at the same time as political elections and thus . . . not contemplated within the prohibitions of [MCJC 7(A)].” EO JI-53. “‘Non-judicial office’ must be interpreted uniformly with the parameters of the Canons,” and even “judges themselves may run for bar association office without resigning their judicial offices.” Id.