August 1, 1990
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.
References: MCJC 3A(6), 7B(1); MRPC 3.6; C-219, C-222, C-227; CI-696.
A judge asks whether a judge may ethically participate in "forums" or "debates" put on by public interest groups or media in the course of judicial campaigns.
It is not unethical, per se, for a judicial candidate to make general statements of political philosophy. MCJC 7B(1) states:
"(1) A candidate, including an incumbent judge, for a judicial office:
"(a) should maintain the dignity appropriate to judicial office, and should encourage members of his family to adhere to the same standards of political conduct that apply to him;
. . .
"(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 his identity, qualifications, present position, or other fact."
MCJC 3A(6) states:
"(6) A judge should abstain from public comment about a pending or impending proceeding in any court, and should require a similar abstention on the part of court personnel subject to his direction and control. This subsection does not prohibit a judge from making public statements in the course of his official duties or from explaining for public information the procedures of the court or his holdings or actions."
MRPC 3.6 states:
"A lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding."
It is unethical for a candidate to discuss a philosophy in a manner that suggests a predisposition toward strict or lenient sentencing, C-219. It is unethical for a judge to respond to a county bar association's questionnaires requesting the candidates to "agree" or "disagree" on various legal issues already decided by the Courts of last resort. C-222, CI-696.
In C-227 the Committee stated:
"After reviewing these authorities the Committee concludes that the underlying purpose of the Code of Judicial Conduct is to further the effectiveness of the judicial system in a democratic society. The Committee sees no useful purpose in sheltering the judicial philosophies of incumbent justices from the scrutiny of the electorate. To place undue restraints on criticism of Supreme Court opinions by candidates for the Supreme Court has serious constitutional implications, as well as ethical considerations.
"We believe that the effectiveness of the judicial system will be promoted by a free and open public discussion concerning opinions by and legal philosophies of incumbent Justices.
"We hasten to add that such discussion, 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. A candidateshould never make statements that are false or misleading, or unjustly attack an incumbent judge."
Therefore, 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.