A candidate for judicial office may express an opinion on a ballot proposal. Care should be exercised to avoid identification with any partisan position. Similar caution should be observed by a judge who is not currently a candidate for re-election. If a constitutional challenge comes before a judge who has expressed an opinion on the issue, it may require the judge's recusal.
References: MCJC 3A(9), 4, 7B(1)(c).
A judicial candidate asks whether it is ethical to express an opinion on a ballot proposal that would allow capital punishment as a form of sentence.
Judges and candidates for judicial office may express an opinion on a ballot proposal. MCJC 4 encourages judges to engage in activities to improve the law, the legal system and the administration of justice. MCJC 7 counsels a judge or candidate for judicial office to refrain from political activity that is inappropriate. A candidate for judicial office must avoid statements and sloganeering that appeal to prejudice. Comments concerning a ballot proposal may form the basis involving a constitutional challenge to the subject matter come before that judge.
A ballot proposal to introduce capital punishment as a form of sentence would affect the administration of justice and therefore may be a Canon 4 concern. The candidate for judicial office must avoid statements that would exploit a ballot proposal issue by appealing to passions that may be expressed in the campaign. MCJC 3A(9) says that a judge should "not seek popularity or publicity either by exceptional severity or undue leniency" in sentencing policies. A judge "should not make pledges or promises of conduct in office other than the faithful and impartial performance C-219of the duties of the office." MCJC 7B(1)(c).
In C-219 this Committee said it was not appropriate for a candidate to pledge to follow a "strict sentencing philosophy." Depending upon how a candidate for judicial office presents his or her views in favor of execution as a form of punishment, such expression could in some situations be what former Canon 30 called an "appeal to the cupidity or prejudice" of the electorate. Likewise, in other situations, a candidate speaking against execution might seek to attract votes where a community survey shows the majority oppose capital punishment. In either case the inappropriate conduct would be similar: A candidate exposing views calculated to "seek popularity or publicity either by exceptional severity or undue leniency." This is precisely what MCJC 3A(9) seeks to avoid.
Whether public statements by a judge or judicial candidate concerning a ballot issue constitute a sincere attempt to contribute to the improvement of the law or are made for the improper purpose of enhancing his or her prospects at the ballot box is a question of fact. Whether a statement is appropriate under the canons depends upon the circumstances under which it was made, the time that the person has been interested in the subject, and other such pertinent factors.
A judge must decide whether to make a public statement and risk recusal should the issue later come before a court on which the judge sits. A public comment may have the effect of temporarily removing the judge from the tribunal for the particular case that will pass constitutional judgment on the proposal. In reaching this personal decision, some candidates may decide the opinion they would offer the electorate is so profound and unique that they are compelled to speak on the issue. Other candidates may have a more modest appraisal of their opinions and therefore may eschew comment on the proposal. The ethical dilemma is whether to comment and waive the right to decide constitutionality, or remain silent and perhaps be perceived by the electorate as unwilling to speak one's mind. The bar can be helpful in explaining this problem to the electorate.
ABA i1487 (1982) held that:
"It is ethically improper under the Model Code of Judicial Conduct for a judicial candidate to response to a bar association questionnaire which seeks to elicit the candidate's views on highly charged and controversial issues, many of which are social and political, as well as legal."
However, the committee believes that the rationale of ABA i1487 does not apply in Michigan, since the Michigan Code of Judicial Conduct does not contain Canon 7B(1)(c) of the ABA Code prohibiting a candidate for judicial office from announcing his or her views on disputed legal or political issues. The absence of such a provision in the Michigan Code suggest that the Michigan Supreme Court did not intend this prohibition to be operative in Michigan.