Judicial Campaign Ethics—Frequently Asked Questions

[These FAQs are neither legal advice nor an ethics opinion, and are not a substitute for your obligation to adhere to the requirements of the Michigan Rules of Professional Conduct (MRPC), the Michigan Code of Judicial Conduct , statutes, court rules, and/or case law and to review ethics opinions. This document does not reflect the ethical implications of any updates, modifications, or added features.]


General Information

Planning Committee & Campaign Committee

Campaign Contributions

Advertisement & Endorsements

Extrajudicial Activities

Disqualification From Pending Cases

 

General Information


What Canons apply to judicial campaigns?

Per MRPC 8.2(b), “[a] lawyer who is a candidate for judicial office shall comply with the applicable provisions of the Code of Judicial Conduct as provided under Canon 5[,]” which references the following Canons:

Canon 1. A Judge Should Uphold the Integrity and Independence of the Judiciary.

Canon 2. A Judge Should Avoid Impropriety and the Appearance of Impropriety in All Activities.

Canon 4A-4D. A Judge May Engage in Extrajudicial Activities.

Canon 7. A Judge or Judicial Candidate Should Refrain From Political Activity Inappropriate to Judicial Office.

See the Michigan Code of Judicial Conduct.

 

What are some of the resources regarding ethics and judicial campaigns?

The Michigan Code of Judicial Conduct. The online version posted on the Michigan Supreme Court’s website does not include comments available in the Michigan Rules of Court published by Thompson Reuters, Westlaw.

The Michigan Rules of Professional Conduct.

The State Bar of Michigan Ethics Opinions, interpreting the Michigan Code of Judicial Conduct.

The Michigan Campaign Finance Act.

Information for Candidates published by the Secretary of State.

 

Planning Committee & Campaign Committee


What is a planning committee and when may it be established?

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.” Ethics Opinion JI-014.

“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.” Ethics Opinion JI-081.

A planning committee may be formed prior to February 15th of the year of the election and “may solicit and accept campaign contributions from the public, including lawyers, as permitted by law” (see MCJC 7(B)(2)(c)). Ethics Opinion JI-081.

 

May a sitting judge be a member of the planning committee of another judge?

Yes, a sitting judge may be a member of the planning committee of another judge, but the judge may not be a member of the campaign committee. Ethics Opinion JI-014.

 

May a planning committee send letters seeking support for the candidate?

Yes. The planning committee may send letters asking if the recipient will support the candidacy, volunteer to work on the campaign, display signs, distribute literature and engage in other similar activities, but it must not solicit contributions. Ethics Opinion JI-081.

 

What is the difference between a planning committee and a campaign committee?

A planning committee, which may be formed before February 15 of the year of the election, may plan strategies for a proposed campaign, inquire about support for the candidate, and ask for volunteers but cannot solicit or receive campaign contributions. Ethics Opinions JI-014 and JI-081.

The campaign committee may solicit, receive, and spend contributions. However, the campaign committee may only solicit contributions after February 15 of the year of the election, and may not solicit or accept funds after the date of the general election. MCJC 7B(2)(d). Judges may not serve on a campaign committee. Ethics Opinions JI-014 and JI-081.

 

What should a candidate consider when establishing a campaign committee?

A candidate should ensure that members of the campaign committee will abide by the ethical requirements contained in the Michigan Code of Judicial Conduct for judicial candidates as provided in MCJC 5. The candidate should only select members who are willing to learn and abide by the Canons applicable to the judicial candidate, as well as the legal requirements.

Additionally, the treasurer must be a qualified elector in Michigan, MCL 169.221(2), but may not be the candidate, a member of the candidate’s immediately family, or another judge. Ethics Opinion JI-90. An exception may be at the beginning of a campaign before donations are accepted or solicited. However, the candidate, an immediate family member, or another judge acting in the capacity of treasurer is ill-advised and problematic due to the ethical concerns that arise from accepting or soliciting funds for the judicial campaign, even if self-funded.

See Ethics Opinion JI-014 and JI-090. See also MCJC 7B(3).

 

May a sitting judge be a member of the campaign committee?

No. Ethics opinion JI-014.

 

Where can I get information regarding filing for a judicial office?

Michigan Secretary of State - Elections: Candidate Information.

 

Campaign Contributions


When can the judicial campaign begin receiving or spending campaign contributions?

Once the campaign committee is formed, it may begin receiving and expending contributions. Ethics Opinion JI-081. However, the committee may not solicit contributions until after February 15 of the year in which the election will occur. MCJC 7B(2)(d).

 

When may the candidate contribute his or her own funds for the judicial campaign?

The candidate may contribute their own funds at any time. Ethics Opinion JI-017, see also CI-987 regarding loaning funds to the committee.

 

May a candidate personally solicit or receive campaign contributions?

No. It is unethical for a judicial candidate to solicit or receive campaign contributions. MCJC 7B(2)(a). Only a campaign committee may receive or solicit contributions beginning February 15 of the year in which the election occurs. MCJC 7B(2)(b) and (d).

 

May a judicial campaign accept unsolicited contributions before February 15?

Yes. Ethics Opinion JI-017. Expenditure of unsolicited funds by the campaign committee before February 15 is not expressly answered by MCJC 7. Canon 7 “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 candidates own funds, or bar campaigning outside the fund-raising period starting on February 15 of the year of the election. Candidates should certainly be discreet in what they do at any time; they should recognize the implication of the fund-raising period in the Canon and restrain their campaign efforts at other times.” CI-987; see also MCJC 7B(2)(b) and (d).

 

May the campaign committee accept contributions or in-kind donations valued over $100.00 from a lawyer?

Yes. Effective May 1, 2019, Canon 7 was amended to eliminate the $100 per lawyer limitation and removed the disclaimer requirement. The campaign committee should refer to the statutory campaign requirements and limitations in regard to contributions. MCJC 7B(2)(c).

 

May a sitting judge contribute to another candidate’s judicial campaign?

Yes. MCJC 7A(1)(b); Ethics Opinion JI-095.

 

May a judicial candidate send a thank you note to a contributor?

Yes. MCJC 7B(2)(a).

 

May a judicial candidate use campaign contributions for the private benefit of the candidate or the candidate’s family?

No. MCJC 7B(2)(e) states that “A candidate should not use or permit the use of campaign contributions for the private benefit of the candidate or the candidate’s family.” Remember, contributions include more than just funds contributed to the campaign, see MCL 169.204(1).

 

May the campaign committee retain contributions dated and postmarked before the end of the election but not received in the mail until after the date of the general election?

Yes. “A candidate for judicial office may retain and use a contribution to retire campaign expenses under circumstances where a check was mailed prior to the close of the general election, but received after the date of the general election.” Ethics Opinion JI-005.

 

What is considered a contribution?

MCL 169.204(1) defines contributions to include more than just funds contributed to the campaign.

 

When must excess funds remaining after payment of all campaign expenses and accounts be returned or donated?

As soon as practicable, but not later than January 1 following the general election. MCJC 7B(2)(f).

 

May the campaign committee use contributions for post-election expenses?

No. Contributions may not be used for any post-election expenses. This prohibition incudes post-election parties and investiture celebrations. Ethics Opinion JI-060.

 

May a campaign committee solicit or accept contributions after the election?

No, even if the contributions are requested for a campaign deficit. MCJC 7B(2)(d) and MCJC 2G. “A candidate for judicial office may retain and use a contribution to retire campaign expenses under circumstances where a check was mailed prior to the close of the general election, but received after the date of the general election.” Ethics Opinion JI-005.

 

May a campaign committee accept a refund for a campaign overcharge remitted after the general election?

Yes. “A judicial candidate who receives a refund due to an overcharge for campaign services, which refund arrives after accounts for the judicial campaign have been closed, may apply the late-arriving refund to any unsatisfied campaign debts.” Ethics Opinion JI-063.

 

May the candidate pay for campaign debt if there are no contributions to pay the debt incurred during the campaign?

Yes. Any outstanding campaign debts that are not covered by timely campaign contributions become the personal obligation of the candidate. Ethics Opinion JI-063.

 

How must excess campaign contributions be handled?

All campaign contributions must be disbursed no later than January 1 following the election. The contributions may be used to pay any loans to the campaign, including loans from the candidate or returned to the contributor. If the contributor cannot be located or refuses to accept the return of contributions, then the excess contributions must be remitted to the State Bar of Michigan Client Protection Fund1. MCJC 7B(2)(f).

1 MCJC 7B(2)(f) states “…such funds to the client security fund of the State Bar of Michigan, not later than January 1 following the election.” The client security fund is also known as the Client Protection Fund.

 

Advertisement & Endorsements


Which Canons apply to campaign advertising?

Canon 7 provides regulations regarding campaign advertising. Specifically, the following sections should be carefully reviewed for campaign advertising:

  • MCJC 7B(1)(a) states that candidates “should maintain the dignity appropriate to judicial office.”
  • MCJC 7B(1)(c) states that candidates “should not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office.”
  • MCJC 7B(1)(d) states that candidates “should not knowingly, or with reckless disregard, use or participate in the use of any form of public communication that is false.”

Advertising must not create the impression of incumbency unless the candidate is an incumbent. Ethics Opinions CI-556; MCL 168.944.

 

How should a candidate’s name be stated in advertising materials?

A judicial candidate should campaign under the candidate’s full name to avoid any mistaken identity. Ethics Opinion JI-074.

 

May a campaign committee solicit endorsements/public statements of support?

Yes. MCJC 7B(2)(b).

 

May a sitting judge endorse/publicly support the candidacy of another judge?

Yes. “A judge may allow the judge’s name and judicial title to be used in a campaign brochure and a radio ad in which the judge is quoted as supporting a judicial candidate judge, as long as the endorsement is not used for fundraising.” Ethics Opinion JI-095. This extends to use of judicial imagery, including photos of a judicial officer in a robe.

 

May a candidate pay for an endorsement?

No. MCJC 7B(2)(g). However, it may pay some of the costs “associated with the publication of the endorsement or ranking of the candidate” in accordance with the parameters set forth in MCJC 7(B)(2)(g).

 

What ethical standards apply to the candidate’s staff?

The candidate “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.” MCJC 7B(1)(b). Best practice: Proceed as though this provision applies to all staff members, regardless of whether or not they are public employees.

 

What ethical standards apply to the candidate’s family?

The candidate for judicial office “should encourage family members to adhere to the same standards of political conduct that apply to the judge”. MCJC 7B(1)(a).

 

May a judicial candidate’s spouse endorse a non-judicial candidate?

“A judge’s spouse is not prohibited from serving on the campaign committee of a nonjudicial candidate or appearing on the campaign committee letterhead.” Ethics Opinion JI-047.

 

May a judicial candidate attend a fundraiser for a nonjudicial candidate?

“[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.” Ethics Opinion JI-030. See also MCJC 7A(1)(b).

 

May a judicial candidate’s campaign committee advertise in a political party’s ad book?

Yes. “A judge or candidate may place an advertisement in a political party’s ad book so long as the content of the advertisement does not constitute a speech on behalf of a political party or nonjudicial candidate or an endorsement of a candidate for nonjudicial office.” Ethics Opinion JI-036.

 

May a judicial candidate send a joint mailing with a nonjudicial candidate or organize a joint event with a nonjudicial candidate?

No. Judicial candidates may not endorse nonjudicial candidates. MCJC 7A(1)(b), MCJC 7(B), MCJC 5. A joint mailing including a judicial candidate and a nonjudicial candidate creates the appearance that the judicial candidate is endorsing the nonjudicial candidate, contrary to MCJC 2 and MCJC 7A(1)(b). Moreover, a joint mailing defrays costs for both candidates. Judicial candidates may only make private donations to nonjudicial campaigns. Publicly defraying campaign costs for a nonjudicial candidate may be considered a public donation, which is a prohibited public endorsement of the nonjudicial candidate. Only private monetary donations to a nonjudicial campaigns are allowed, JI-145. For the same reasons, organizing a joint event, even if not specifically related to the campaigns (i.e. community events) and using the candidate’s status as candidates creates the appearance of an endorsement of the nonjudicial candidate by the judicial candidate.

This answer does not address organizational mailings or events, law related educational events, or attending events. See MCJC 7B(2)(g) and MCJC 4(A). See also May a judicial candidate attend a fundraiser for a nonjudicial candidate? and May a judicial candidate’s campaign committee advertise in a political party’s ad book?

 

Extrajudicial Activities


May a candidate continue to participate in extrajudicial activities and organizations?

Yes, as long as participation does not influence judicial conduct or judgment or involve the personal solicitation of funds. MCJC 2C, MCJC 7A(2)(a) and (b), and MCJC 4A–D.

 

May a candidate serve “as an officer, director, trustee, or nonlegal advisor of a bona fide educational, religious, charitable, fraternal, or civic organization?”

Yes, unless “it is likely that the organization will be engaged in proceedings that would ordinarily come before the judge or will be regularly engaged in adversary proceedings in any court.” MCJC 4C; Ethics Opinion JI-139.

 

Disqualification From Pending Cases


Is a judge per se disqualified from presiding over a case where one of the lawyers is running against the sitting judge?

No. “A judge assigned to preside over a case in which one of the advocates is an announced candidate for that judge’s seat in the upcoming election is not per se disqualified from presiding over the case. Assuming that the judge ethically can discharge the duties required by the applicable Canons and finds no basis that requires disqualification, the judge should nonetheless disclose to the parties that the advocate is a candidate for the judge’s seat, and proceed, unless a timely motion to disqualify is granted.” Ethics Opinion JI-138.

 

Is a judicial candidate per se prohibited from representing a client in a case pending before his or her judicial opponent?

No. “A lawyer who is a candidate for judicial office and is simultaneously representing a client in a matter pending before his or her judicial opponent must disclose this fact to his or her client at the earliest opportunity, including prior to retention, if possible. MRPC 1.4(b). In order to continue the representation, the lawyer must determine whether his or her candidacy for his or her judicial opponent’s seat triggers any obligation under MRPC 1.7(b) and proceed accordingly.” Ethics Opinion RI-361.

 

Is a judge automatically disqualified from presiding over a matter where one of the attorneys is a member of the judge’s reelection campaign committee?

No. “An incumbent judge is not automatically disqualified from presiding in a matter in which a member of the judge’s reelection campaign committee appears as an advocate for a party. The judge has an affirmative duty to disclose the relationship to opposing counsel and all parties. The lawyer has an affirmative duty to disclose the relationship to the client, and, if the judge fails to make timely disclosure, to the opposing counsel.” Ethics Opinion JI-079.


Last updated: May 2022