NOTE: Various references in this ethics opinion to portions of the Michigan Code of Judicial Conduct are no longer accurate due to amendments effective August 1, 2013. Click here to review language added to (which is underlined) and language stricken from (which is indicated by strikethrough) Canons 2, 4, 5, and 7.
November 15, 1990
A judge may attend a fundraiser held for a nonjudicial candidate, and may participate in campaign activities which do not constitute a public endorsement of the nonjudicial candidate. The same rules apply to a judge's participation in a campaign for a nonjudicial candidate who is a relative of the judge or a member of the judge's household.
References: MCJC 5C(4), 7A; CI-493, CI-778; JTC A/O 20, 25, 60.
A judge seeks clarification of the rules governing the judge's participation in a campaign for a nonjudicial candidate. Specifically, the judge asks:
- May a judge attend a fundraiser for a nonjudicial candidate?
- May a judge buy extra tickets for a nonjudicial fundraiser and give them away?
- May a judge set up yard signs for a nonjudicial candidate?
- Does it matter if the candidate is the judge's spouse or other relative?
MCJC 7A states:
"(1) A judge or a candidate for judicial office should not:
"(a) hold any office in a political party;
"(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."
The Canon does not directly address the question of proper "campaigning" for a nonjudicial or political candidate. MCJC 7A does specifically allow a judge to attend a political gathering and to contribute to a political party, as long as the judge does not hold a party office or publicly endorse a nonjudicial candidate. The question then becomes what constitutes an "endorsement" of a nonjudicial candidate?
"Endorsements" have been taken to include appearing on the same side of issues at debates, CI-778, allowing use of the judge's home for campaign events, CI-493, and taking out advertising congratulating or supporting a candidate, JTC A/O 20. Making campaign contributions, JTC A/O 60, purchasing fundraising tickets or signing nominating petitions, JTC A/O 25, have been held not to be improper "endorsements."
If a judge can buy a fundraising ticket, the judge surely cannot be prohibited from attending the event. Since MCJC 7A(2)(a) specifically allows attendance at "political gatherings" and a fundraiser for a nonjudicial candidate is clearly a "political gathering," a judge may attend fundraisers for nonjudicial candidates. The judge's presence in and of itself does not constitute a "public endorsement" of the type prohibited by MCJC 7A(1)(b).
Similar logic would allow a judge to give away extra fundraising tickets the judge has purchased but cannot use. This is distinguished from the judge receiving free fundraising tickets, which would fall within MCJC 5C(4), and from the judge reselling the tickets, since a judge may not directly solicit funds. A judge may also buy a block of tickets, such as all seats at a specific table for a dinner event, with the intention of giving them away to friends or to ensure good attendance at the event. As long as the judge does not use the power and prestige of the office in such give-aways and does not suggest the recipient can expect something from the judge in return for attending, such intentional give-aways are not improper.
The second group of questions deals with the nature of active campaigning a judge may volunteer for a nonjudicial candidate. Many campaign activities are performed behind the scenes, e.g., stuffing envelopes, voter registration drives, placing ads, writing speeches. A judge is not prohibited from participating in this type of activity for a nonjudicial candidate. Other types of activity of a "public" nature are prohibited, i.e., giving speeches, handing out campaign literature, displaying bumper stickers, signing letters and soliciting votes.
Building yard signs for a campaign most properly falls within the category of "behind the scenes" participation and is not prohibited. Soliciting persons for display of signs in the yard or volunteering to set up the signs in the yards of persons who consent is "public activity," could be construed as a "public endorsement" of the nonjudicial candidate, and should not be performed by judges.
When the nonjudicial candidate is a member of the judge's household or a relative, there is a strong public perception that the judge supports the relative's candidacy. The Code, however, makes no exception for nonjudicial candidates who may be presumed to have a judge's support. Campaign events should not be held at the judge's home or at other property owned by the judge, even when it is also the property of the nonjudicial candidate. See, CI-493. Factual information about the nonjudicial candidate's background or family should not tie the candidacy to the prestige of the judge's office. A judge may freely attend campaign events for the nonjudicial candidate, and may personally contribute funds to the nonjudicial candidate's campaign.
Therefore, a judge may attend a fundraiser held for a nonjudicial candidate, and may participate in campaign activities which do not constitute a public endorsement of the nonjudicial candidate. The same rules apply to a judge's participation in a campaign for a nonjudicial candidate who is a relative of the judge or a member of the judge's household.