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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NOTE: Effective January 1, 2000, the "180-day Fundraising Period" in MCJC 7B(2)(c) has been replaced by a fund-raising period starting on February 15 of the year of the election.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-90

April 15, 1994

SYLLABUS

    A judicial candidate may not appoint the candidate's father-in-law to serve as the candidate's campaign treasurer.

    References: MCJC 7(B); JI-14, JI-17; JTC A/O 15; MCR 2.003(B)(5); MCL 169.222.

TEXT

A judicial candidate inquires whether the candidate's father-in-law, who is an accountant, may serve as the candidate's campaign treasurer. A campaign treasurer is designated on the statement of committee organization as responsible for the campaign committee's recordkeeping, report preparation, or report filing. The treasurer is obligated, under civil penalty to keep detailed accounts, records, bills and receipts in order to substantiate the information contained in the reports filed under the Campaign Finance Act. MCL 169.222.

MCJC 7(B) 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."

Throughout MCJC 7 is an implicit policy preference that the judicial candidate be insulated from the solicitation and acceptance of funds. It is clear from reading MCJC 7B(2)(b) that the primary purposes of the campaign committee are the raising of funds and the management and expenditure of those funds during the campaign, together with the additional function of obtaining "public statements of support" for the judge's candidacy. MCJC 7B(3) clearly indicates that no judge can accept contributions of any kind "on his behalf or on behalf of any other judicial candidate." See JI-17. A judge is thus prohibited from serving as treasurer of a campaign committee. JI-14.

Under MCJC 7(B)(1)(a), "family" members must be encouraged by the candidate to adhere to the same standards of political conduct that apply to the judge. MCJC 7 is devoid of any definition of the term "family member" as used in MCJC 7(B)(1)(a). MCJC 5C(5) specifically defines "family member residing in the judge's household" to include "any relative of a judge by blood or marriage, or a person treated by a judge as a member of the judge's family, who resides in the judge's household," but limits that definition to "the purposes of this section." MCR 2.003(B)(5) requires a judge's automatic disqualification from presiding in a matter in which the judge is within the third degree of affinity or consanguinity to a counsel for a party, or within the sixth degree to a party. We note that JTC A/O 15 resolved that a judicial candidate should not designate the candidate's spouse as treasurer of the candidate's campaign committee.

In JI-17, the Committee noted that 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. 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. The Committee stated:

    "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."

We find this distinction concerning the candidate's control helpful in this inquiry. The candidate and the campaign committee do control who is appointed as treasurer. Ethics rules attempt to separate the candidate from the direct solicitation and acceptance of campaign funds. Although the campaign treasurer should be someone who has the confidence and trust of the candidate, to the extent that the treasurer is closely related to or living in the household of the candidate, the separation of the candidate from the solicitation and acceptance of funds is compromised.

Appointment of the father-in-law as campaign treasurer would not be in accord with the policies underlying the separation of a judicial candidate from solicitation and acceptance of campaign funds. Although the candidate should use personal judgment in determining such appointments, the Committee recommends at a minimum that a campaign treasurer should neither reside in the candidate's household, nor be within the third degree of affinity or consanguinity to the candidate.

 
     

 

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