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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NOTE: Effective January 1, 2000, the "180-day Fundraising Period" in MCJC 7B(2)(c) has been replaced by a fund-raising period starting on February 15 of the year of the election.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-81

February 25, 1994

SYLLABUS

    Ethics rules do not prohibit a judicial candidate from engaging in campaign activities prior to the 180-day fund solicitation period.

    In order to determine whether there is sufficient support to seek judicial office, a prospective candidate may form a planning committee consisting of lawyers and judges, send letters to individuals on letterhead showing the names of the planning committee members, and ask whether the recipients will support the candidate, work on the campaign, or display campaign signs.

    A prospective candidate may not seek a public endorsement prior to announcing candidacy.

    Whether a candidate may be reimbursed from campaign funds for personal expenditures made prior to announcing candidacy is a question of law not resolved under ethics rules.

    References: MCJC 1, 2C, 7A(1)(b), 7B; J-1; JI-14, JI-17; JTC A/O 13, JTC A/O 52. Op 206 is superseded to the extent inconsistent with this opinion.

TEXT

In an effort to determine whether sufficient support exists for a lawyer to run for election to judicial office, the lawyer has formed a "planning committee" consisting of lawyers and incumbent judges prior to the 180-day fundraising period. The lawyer intends to send two mailings on letterhead showing the names of the planning committee members, one to a list of persons whom the lawyer believes are likely to support the candidacy, and another to leaders of special interest groups and lawyer organizations. The letters will not solicit funds, but will ask the recipient to indicate by return letter whether they will endorse or otherwise support the candidacy, and if so, whether the recipient will distribute campaign literature and display a campaign sign in their yards. The lawyer will pay for the mailing from personal funds.

The lawyer asks:

  1. Is it ethical to send the proposed letters prior to the 180-day fundraising period?
  2. If a campaign committee is eventually formed to solicit money, may the lawyer be reimbursed for the expenses of the mailing from campaign funds?

MCJC 7B states:

    "(1) A candidate, including an incumbent judge, for a judicial office:

      "(a) should maintain the dignity appropriate to judicial office, and should encourage family members to adhere to the same standards of political conduct that apply to the judge;

      "(b) should prohibit public employees subject to the judge's direction or control from doing for the judge what the judge is prohibited from doing under this Canon;

      "(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 identity, qualifications, present position, or other fact.

    "(2) These provisions govern a candidate, including an incumbent judge, for a judicial office:

      "(a) A judge should not personally solicit or accept campaign funds, or solicit publicly stated support by improper use of the judicial office in violation of B(1)(c).

      "(b) A judge may establish committees of responsible persons to secure and manage the expenditure of funds for the campaign and to obtain public statements of support for the candidacy.

      "(c) Such 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 the 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. A candidate should not use or permit the use of campaign contributions for the private benefit of the candidate or the candidate's family.

      "(d) If a candidate is not opposed for such judicial office, the candidate or the candidate's committee shall return to the contributors funds raised in excess of the actual costs incurred or contribute such funds to the client security fund of the State Bar of Michigan, not later than January 1 following the election.

      "(e) Any candidate or committee having funds remaining after payment of all campaign expenses shall either return such funds to the contributors thereof or donate the funds to the client security fund of the State Bar of Michigan, not later than January 1 following the election.

    "(3) No judge should personally sell or permit any court or public employee working for or assigned to any court to sell fund-raising tickets or accept contributions of any kind on the judge's behalf or on behalf of any other judicial candidate."

A lawyer may organize a planning committee prior to filing for office. JI-14. It may be argued that the appearance of a judge's name on the letterhead of the planning committee improperly uses the prestige of judicial office for the private interests of the prospective candidate in violation of MCJC 2C. This provision must be balanced by MCJC 7A(1)(b), which, by prohibiting a judge from endorsing candidates for nonjudicial office, implies that endorsements of judicial candidates is not improper. JTC A/O 13, JTC A/O 52. In J-1 we stated:

    "A judge may be a member of an educational, religious, fraternal or civic/charitable, fund-raising committee as long as the judge does not individually solicit money, CI-641. MCJC 5B permits a judge to serve as director or trustee of charitable or civic organizations. It follows that a judge may be identified by name and judicial office on a letterhead, in circulated literature or in any other communications disseminated by the organization of which the judge is a member. There is no prohibition against the organization circulating fund-raising letters on such letterhead, provided the judge is not the sole signator of the letter, CI-641.

    "MCJC 5B(2) does allow a judge's participation in appeals on behalf of educational, religious, fraternal or civic/charitable organizations. Thus, if a board or committee sends a mailing to a variety of people who are known to support the organization, the presence of the judge's name on that letterhead or as one of several signators would not be improper, CI-641."

We do not know of any reason why the presence of the judge's name in the planning committee letter would be any more egregious than the presence of a judge's name on letterhead used for a general charitable solicitation. The letter proposed in this inquiry may be on letterhead which shows the names of the members of the planning committee, even though some of the members are sitting judges.

JI-14 warned that the planning committee must be separate and distinct from the candidate's campaign committee, and "must only be involved in planning strategies for a proposed campaign." It follows that the work of a planning committee ceases when a campaign committee is established, since the campaign committee is the only entity authorized to conduct campaign activities and accept and spend campaign funds.

Op 206, analyzing the former Canons of Judicial Conduct, argued that although letters could be sent to specific prospective supporters, "[t]roubled waters . . . arise when the candidate focuses his advertising toward a special interest group." The Opinion warns that directing campaign advertising toward a specific group gives advance notice as to how the candidate might rule if litigation came before the candidate involving that general issue. "The practice condemned by the Committee is a predilection of the votes." Under the reasoning of Op 206, seeking an "endorsement" from a special interest group, either during planning activities or during campaigning, infers a bias or leaning to be avoided by judges who must maintain impartiality. See also MCJC 1, JI-27, C-219, C-222, C-227.

This reasoning is rejected in MCJC 7B(2), which unequivocally allows candidates to "solicit publicly stated support" and campaign committees to "obtain public statements of support." The Canon also unequivocally requires the candidacy to be announced before such "public endorsements" may be obtained. This latter requirement maintains the separation between planning committees and campaign committees stressed in JI-14.

A letter from a planning committee may ask individual recipients whether they will support the candidate, whether they will work on the campaign, display campaign signs, etc. An organizational recipient may "distribute" campaign literature by displaying it in its publications and may allow a campaign sign to be placed on property owned by the interest group. If the letter is sent to the interest group as a substitute for reaching the group's members, it is more in the nature of campaign activity, not "planning" activity. Election laws require that all campaign activities be conducted by the registered campaign committee. Cf, MCL 169.221, 169.247(1).

MCJC 7B(2)(c) prohibits solicitation of funds earlier than 180 days before a primary election or nominating convention. It does not prohibit all campaigning prior to the 180 days, and it does not prohibit spending money prior to the 180 days. Many campaign activities require expenditure of funds, e.g., printing flyers, booking dinner halls, mailing position statements. Candidates can seldom rely upon sufficient voluntary contributions to cover those expenses, and frequently spend their personal funds for the campaign. This is especially true when a prospective candidate is trying to determine whether there is sufficient support to merit running for election.

The lawyer intends to pay the expenses of the mailing from personal funds. JI-17 clarified that a candidate's campaign committee may accept voluntary contributions prior to the 180 days. Whether expenditures in advance of announcing candidacy may be charged to the campaign is a question of law, not answerable under the Michigan Code of Judicial Conduct. See MCL 169.201 et seq.

 
     

 

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