Ethics opinions C-219, C-222, JI-4, and JI-82 are overruled by the White decision, and are no longer valid.
February 7, 2005
Judicial candidates may announce their views on disputed legal and political issues during a campaign as the First Amendment protects such speech. A candidate may not make a pledge or promise during a campaign of conduct in office other than the faithful and impartial performance of the duties of the office.
Opinions C-219, C-222, C-227, C-237, JI-4, JI-27, and JI-82 are reviewed by the committee sua sponte in light of Republican Party of Minnesota v. White, 536 U.S. 765, 122 S.Ct. 2528 (2002).
Ethics opinions C-219, C-222, JI-4, and JI-82 are overruled by the White decision, and are no longer valid.
References: C-219, C-222, C-237, JI-4, JI-27, JI-82, Republican Party of Minnesota v. White, 536 US 765 (2002), MCJC 7A, MCJC 7B.
The Committee has asked sua sponte, whether Judicial Ethic Opinions C-219, C-222, C-227, C-237, JI-4, JI-27, and JI-82 are valid in light of Republican Party of Minnesota v. White, 536 US 765, 122 S Ct 2528 (2002) (hereinafter referred to as White). In White, the U.S. Supreme Court addressed a Minnesota Supreme Court Canon that prohibited candidates for judicial election from announcing their views on disputed legal and political issues. That canon stated a "candidate for a judicial office including an incumbent judge" shall not "announce his or her views on a disputed legal or political issues". The canon was based on Canon 7B of the 1972 American Bar Association Model Code of Judicial Conduct commonly known as the "announce clause". White, struck down the Minnesota canon holding that it was in violation of the First Amendment. The majority opinion applied the strict-scrutiny test, which mandates that any such rule be (1) narrowly tailored, to serve (2) a compelling state interest. Id. To show that such a canon is narrowly tailored, the proponents of such a rule must demonstrate that it does not "unnecessarily circumscribe protected expression." Id.
In striking down the "announce clause" the Court failed to find a compelling state interest served by a narrowly tailored rule in either of the states articulated interest, those being: preserving the impartiality of the state judiciary and/or preserving the appearance of impartiality of the state judiciary.
The Michigan Code of Judicial Conduct does not contain an "announce clause". Rather, Michigan has adopted the so-called "pledge or promise" clause. Michigan's "pledge or promise" clause provides:
"MCJC 7 A Judge or a Candidate for Judicial Office Should Refrain from Political Activity Inappropriate to Judicial Office
It is important to note that the majority opinion in White, specifically declined to address the "pledge or promise" clause. The Court distinguished the two types of clauses and stated:
"We know that " announcing views" on an issue covers much more than promising to decide an issue a particular way. The prohibition extends to the candidates mere statement of his current position, even if he does not bind himself to maintain that position after election. All the parties agree this is the case, because the Minnesota Code contains a so called "pledges or promises" clause, which separately prohibits judicial candidates from making "pledges or promises of conduct in office other than the faithful and impartial performance of the duty of that office," ibid.–a prohibition that is not challenged here and on which we express no view."
That having been said, the White, majority opinion does give guidance that we should go to great lengths to protect campaign speech. The court stated:
"Moreover, the notion that the special context of electioneering justifies an abridgment of the right to speak out on disputed issues sets our First Amendment jurisprudence on its head. "[D]ebate on the qualifications of candidates" is "at the core of our electoral process and of the First Amendment freedoms," not at the edges. Eu, 89 U.S., at 222-223, 109 S.Ct. 1013 (internal quotation marks omitted). "The role that elected officials play in our society makes it all the more imperative that they be allowed freely to express themselves on matters of current public importance." Wood v. Georgia, 370 U.S. 375, 395, 82 S.Ct. 1364, 8 L.Ed.2nd 569 (1962). "It is simply not the function of government to select which issues are worth discussing or debating in the course of a political campaign." Brown, 456 U.S., at 60, 102 S.Ct. 1523 (internal quotations marks omitted). We have never allowed the government to prohibit candidates from communicating relevant information to voters during an election." Id.
Thus, while the Michigan "pledge or promise" clause is presumed constitutionally valid and enforceable at the present time, in light of White, such a free speech prohibition must be narrowly construed and cautiously applied to campaign speech. It is within this framework that each of the at-issue opinions is reviewed.
Opinion C-219, February 15, 1980
In Opinion C-219, the committee was asked to determine whether a District Court Judge's proposed campaign slogan "A strict sentencing philosophy! A hard working man!" was proper. The slogan was to appear in advertising materials disseminated during the election campaign. The opinion stated that the use of such a slogan was prohibited under Canon 7 as there was a belief that this phrase standing alone created an impression of possible bias or partiality in the candidates proposed sentencing practices. The opinion concluded that irrespective of whether the phrase "a strict sentencing philosophy" in campaign literature constituted a pledge or promise, its use was not permissible.
In light of White, the opinion as it stands is not constitutionally valid. Under White, only speech which constitutes a "pledge or promise" of conduct in an office other than the faithful and impartial performance of duties may be prohibited. C-219 fails to address this critical issue.
Whether the phrase "strict sentencing philosophy" constitutes an impermissible pledge or promise must be gauged at least in part, by the meaning of the phrase. As with all campaign rhetoric, this phase is "dated" reflecting perceived issues during the campaign in which it was proposed. Presumably at the time, it was meant to reflect a harsh verses lenient approach to criminal sentencing. However, with the advent of relatively strict sentencing guidelines in Michigan, it is not entirely clear what the current meaning of "a strict sentencing philosophy" would be in a campaign. One possible current interpretation of the phrase would be a proper statement by a candidate to strictly follow the sentencing guidelines in Michigan. Whatever the current meaning of the phrase, it does not rise to the level of an impermissible pledge or promise. Accordingly, this opinion is no longer valid under White, Id. It is merely an expression of philosophy and as such, an announcement by a candidate of his views on a political/legal issue.
Opinion C-222, February 26, 1982
Ethics Opinion C-222 opined that a county bar association could not circulate a questionnaire requesting judicial candidates to agree or disagree on various legal issues that had been already decided upon by the courts of last resort. The questionnaire at issue listed seventeen issues and asked the candidates to indicate their philosophical agreement or disagreement with the Court's decisions. In stating that such a questionnaire and responses would be unethical, the opinion states ". . . the candidate should not announce conclusions in advance on issues on which he or she will be called upon to decide if elected."
Opinions C-222 is clearly invalid under the White, decision. The prohibition enunciated in C-222 goes far beyond the scope of prohibited pledges and promises. It rather prohibits a candidate from expressing opinions that constitute protected speech under the First Amendment. C-222 is no longer a valid statement of the law as candidates are free to announce their opinions of disputed legal and political issues.
Opinion C-227, November 1982
Ethics Opinion C-227 opined that a candidate for the State Supreme Court may criticize the majority portion of a divided opinion of that court and the legal philosophy that underlies that portion of the opinion. The specific facts of White, involved this same issue of criticism of prior Minnesota Supreme Court decisions. White, struck down a specific prohibition which barred this type of campaign speech. In light of White, Opinion C-227 and its underlying opinions are valid and the opinion should stand.
Opinion C-237, March 1986
Ethics Opinion C-237, stated that a candidate for judicial office may publicly express an opinion on a ballot proposal. The judicial candidate in this opinion asked whether it was ethical to express an opinion on a ballot proposal that would allow capital punishment as a form of sentencing.
In light of the White, this opinion correctly held that Michigan does not have an "announce policy" prohibiting judges from expressing his or her views on disputed legal or political issues. Nor would such a prohibition be constitutionally valid. This opinion remains valid under White.
Opinion JI-4, May 19, 1989
Opinion JI-4 opined that a campaign advertisement for a judicial candidate in which the candidate pledged a portion of his judicial salary for charitable purposes was unethical and could not be used. The candidate also asserted that judicial salaries were too high. The opinion stated that such a statement was improper as being misleading and an unwarranted attack on the judiciary.
The opinion addressed prior MCJC 7 B (1)(c) which stated that a judicial candidate:
"(c) should not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office; or misrepresent identity, qualifications, present position, or other fact."
The current Canon provides that a judicial candidate:
"(c) should not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office;
(d) should not use or participate in the use of any form of public communication that the candidate knows or reasonably should know is false, fraudulent, misleading, deceptive, or which contains a material misrepresentation of fact or law or merits 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."
JI-4 addresses two separate issues. The first issue is the pledge of a portion of the candidate's salary for charitable issues. Again, this slogan obviously reflects a "dated" campaign issue. Its relevance in a current race would be questionable. In light of White, and despite the fact that the candidate uses the word "pledge," it would be difficult to construe this as an impermissible pledge or promise. The so-called "pledge" has nothing to do with the judge's job duties, performance, or judicial decision-making process. It is a statement or announcement of intention of the candidate to dispose of his salary in a manner in which he feels is appropriate and which is completely lawful. As such, this must be considered constitutionally protected speech.The second issue is the statement that judicial salaries are too high. The mere statement or announcement of one's opinion that judicial salaries are too high also does not rise to the level of a pledge or promise. Nor does this view represent a false or misleading statement or an unjust attack on incumbent judges. It is a statement of the candidate's opinions and views. It is a matter of free speech expression that should be protected under the First Amendment. Accordingly, Opinion JI-4 is no longer valid under White.
In Opinion JI-27, a judge asked whether he could ethically participate in forums or debates put on by public interest groups or the media. The opinion stated that a judicial candidate may participate in a public forum in the course of an election campaign, provided that the candidate does not create the impression that if elected or re-elected the candidate would act with bias or partiality towards a particular class or group. Opinion JI-27 remains valid under White, with the exception of its references to opinions C-219 and C-222 that were previously discussed.
JI-82 opines that a judicial candidate must not respond to a survey questionnaire that elicits candidate's opinions on matters pending or impending in any court. Under White, that opinion is invalid to the extent it would prohibit a candidate from responding to the type generic questions discussed in JI-82. The questions posed in the questionnaire do not elicit "pledges or promises". Rather, the questionnaire asked for an expression of opinions held by the candidate. In addition, the candidate was not compelled to the questionnaire or answer any specific question.
Nothing in this opinion should be understood to state or imply that a candidate for judicial office may comment on any specific matter pending in the Court to which the candidate seeks election.