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Ethics Opinion

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NOTE: Effective January 1, 2000, the "180-day Fundraising Period" in MCJC 7B(2)(c) has been replaced by a fund-raising period starting on February 15 of the year of the election.

JI-17

January 30, 1990

SYLLABUS

    A judicial candidate may not solicit or accept campaign contributions at any time.

    A judicial candidate's campaign committee may accept unsolicited campaign contributions prior to the 180-day period preceding the primary election or nominating convention, up to and including general election day.

    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.

    References: MCJC 7B(1), 7B(2); JI-2, JI-7; CI-509, CI-531, CI-987; JTC A/O 65; MCL 169.203(2).

TEXT

A judge asks:

  1. May a judicial candidate accept unsolicited contributions prior to the 180-day fund-raising period?
  2. May a third party solicit and accept money to be given to a judicial candidate's campaign committee?
  3. Is the third party bound by the campaign restrictions in MCJC 7B?

MCJC 7B(2)(a) clearly bars the judicial candidate from soliciting or accepting campaign contributions at any time. MCJC 7B(2)(b) permits the formation of committees to secure and manage campaign funds. MCJC 7B(2)(c) states:

    "Such [judicial campaign] committees are prohibited from soliciting campaign contributions from lawyers in excess of $100 per lawyer, but may solicit public support from lawyers. A candidate's committee may solicit funds for his campaign no earlier than 180 days before a primary election or nominating convention and may not solicit or accept funds after the date of the general election . . . ."

The terms "solicit" and "accept" are aptly defined. See CI-509, CI-531, and CI-987. Curiously, MCJC 7B(2)(c) uses the word "solicit" when referring to the action which the campaign committee may commence and the words "solicit and accept" when referring to the action which the committee must cease.

In CI-509, the Committee was asked whether a campaign committee should return any excess over $100.00 voluntarily contributed by a lawyer. The Committee determined that the Code did not require the refund, arguing that the Code language would prohibit "acceptance" if that was intended. In accord, CI-531.

In CI-987, the Committee was asked whether a campaign committee may use funds contributed by the candidate for campaign materials and expenses prior to the 180-day period, and be later reimbursed from campaign funds. The Committee stated:

    "Every judge who must stand for election will indulge in activity throughout his term that might be interpreted as campaigning. On the other hand, the canon by analogy does not look with favor on campaigns that would extend longer than 180 days.

    "The canon does not bar formation of a committee at any time, bar use of a candidate's own funds or use by the committee of a candidate's own funds, or bar campaigning outside the 180-day period. Candidates should certainly be discrete in what they do at any time; they should recognize the implication of the 180 day limit in the canon and restrain their campaign efforts at other times."

There is no logical distinction between the acceptance of unsolicited contributions from lawyers and the acceptance of unsolicited contributions in general. A judicial candidate may contribute his/her own funds to the campaign at any time, and may need to expend funds to determine whether there is support for his/her candidacy prior to the 180-day fund-raising period. As noted in CI-987, the Code does not prescribe a time limit to campaign activity, but only to fund-raising. The MCJC 7B(2)(c) time limit applies explicitly to the solicitation of funds; authority to solicit support, MCJC 7B(2)(a), has no such time limit.

JTC A/O 65 distinguished the acts of solicitation and acceptance, and allowed a campaign committee to accept voluntary and unsolicited contributions from both lawyers and the public at large prior to the 180-day period. We agree.

A judge may not do through another an act which is prohibited to the judge, and may not circumvent the Code through another. To authorize, suggest, or become identified with fund-raising efforts undertaken by another which would violate the Code if undertaken by the candidate or the campaign committee would circumvent the intended proscription and allow the campaign committee to accomplish indirectly what it cannot do directly. JI-7. On the other hand, although a judicial candidate should encourage members of his/her family to adhere to the campaign standards which apply to the judge, MCJC 7B(1)(a), prohibits public employees subject to the judicial candidate's direction and control from doing what the candidate cannot do, MCJC 7B(1)(b), and is responsible for the actions of the campaign committee, MSA 169.203(2), we find no authority which suggests that a candidate or campaign committee must investigate and control the conduct of all contributors.

MCJC 7 does not limit the activity of persons or committees not directly associated with the judicial candidate or the campaign committee, to the extent their activities are "unsolicited" and unendorsed by the candidate. Whether the activities of such third parties are subject to regulation by other provisions of law is a question beyond the jurisdiction of the Committee.

 
     

 

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