October 23, 1989
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.
References: MCJC 7A(1)(b); C-206.
The Committee has been asked whether a nonpartisan judicial candidate's name may properly appear on the reverse side of a ticket for a Democratic function as part of a list of those endorsed by the party for township office.
C-206 holds that "in a so-called nonpartisan election for justice of the Supreme Court where under presently existing law the candidates are nominated by a political party convention, the candidates may publicize their political affiliations and may permit their names to appear in the slate of candidates which their party supports. The contrary should be the rule in the case of candidates for circuit judge or other nonpartisan judicial office."
JTC A/O 53, decided 18 years after C-206, states: "It is the position of the commission that the endorsement of a candidate for district court judge through appearance of his name on a ticket announcing the slate of democratic candidates for township office is not in violation of Canon 7 of the Code of Judicial Conduct. It is conceded that this opinion is contrary to Michigan Formal Ethics Opinion 206 which prohibited nonpartisan candidates for judicial office from being identified with any partisan political parties on any campaign literature."
The Committee has been asked to resolve this conflicting authority.
C-206 was based on Canon of Judicial Ethics 28 which stated in part:
"While entitled to entertain his personal views of political questions, and while not required to surrender his rights or opinions as a citizen, it is inevitable that suspicion that being warped by political bias will attach to a judge who becomes the active promoter of the interests of one political as against another. He should avoid making political speeches, making or soliciting payment of assessments or contributions to party funds, the public endorsement of political office and participation in party conventions." Emphasis added.
Judicial Advisory Opinion 53 was based on MCJC 7A which states in part:
"A. Political Conduct in General:
"(1) A judge or candidate for judicial office should not:
". . .
"(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 his own behalf or on behalf of other judicial candidates;
"(c) contribute to a political party." Emphasis added.
Under MSA 6.1392 Supreme Court justices are nominated by each political party at a political convention. Since the candidates are nominated by the political party there is nothing misleading about their names appearing on advertisements and other communications by the political party. Political reality would suggest that a nominating party has a right to support its nominees. A different situation is presented by the endorsement of district, probate, circuit and Court of Appeals judges. Michigan judges other than Michigan Supreme Court justices are not nominated or selected by political parties and seek election as nonpartisan candidates.
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." Even the ABA Model Code of Judicial Conduct 7A(1)(b), which is stricter than the Michigan Code and forbids a judge from endorsing a candidate for any public office, acknowledges in comment: "A candidate does not publicly endorse another candidate for public office by having his name on the same ticket."
Since the communication involved is done by someone other than the judge and has not been solicited by the judge, the question is whether a judicial candidate is required to attempt to have it retracted. The Committee believes MCJC 7 does not require the judge to act.