Note: JI-145 replaces CI-547.
December 29, 1980
A retired judge acting by appointment as a visiting judge on occasion(s) is subject to Canon 7 of the Code of Judicial Conduct governing political activities and is therefore prohibited from endorsement of a candidate for non-judicial office and from making contributions to the non-judicial candidates campaign fund.
References: Canon 7A(1)(b) and 7A(1)(c).
You state that since your retirement as a probate judge you have been appointed, on occasion, to act as a visiting judge in several jurisdictions and wish to know if a judge, under the circumstances described, is prohibited from endorsement of a candidate for non-judicial office or if he/she is prohibited from making contributions to the campaign of a candidate for non-judicial office.
The inquiry involves a close reading of Canon 7 of the code of Judicial Conduct. Initially, it should be noted that GCR 932.3(b) espouses the following definition:
"Judge means a justice or judge of any appellate court or any trial court appointed or elected pursuant to any laws of this state." Emphasis added.
The American Bar Association Comments on Compliance with the Code of Judicial Conduct is helpful and states the following:
"Anyone, whether or not a lawyer, who is an officer of a judicial system performing judicial functions, including an officer such as a referee in bankruptcy, special master, court commissioner, or magistrate, is a judge for the purpose of this Code. All judges should comply with this Code except as provided below.
"A Part-time Judge. A part-time judge is a judge who serves on a continuing or periodic basis, but is permitted by law to devote time to some other profession or occupation and whose compensation for that reason is less than that of a full-time judge. A part-time judge;
"(1) is not required to comply with Canon 5C(2), D, E,F, and G, and Canon 6C.
"(2) should not practice law in the court on which he or she serves or in any court subject to the appellate jurisdiction of the court on which he or she serves, or act as a lawyer in a proceeding in which he or she has served as a judge or in any other proceeding related thereto.
"B Judge pro tempore. A judge pro tempore is a person who is appointed to act temporarily as a judge.
"(1) While acting as such, a judge pro tempore is not required to comply with Canon 5C(2), (3), D, E.F. and G, and Canon 6C.
"(2) A person who has been a judge pro tempore should not act as a lawyer in a proceeding in which he or she has served as a judge or in any other proceeding related thereto.
"C Retired Judge. A retired judge who receives the same compensation as a full-time judge on the court from which he or she retired and is eligible for recall to judicial service should comply with all the provisions of this Code except Canon 5G, but he or she should refrain from judicial service during the period of an extra-judicial appointment not sanctioned by Canon 5G. All other retired judges eligible for recall to judicial service should comply with the provisions of this Code governing part-time judges." Emphasis added.
All of the above classifications require compliance with Canon 7's general prohibitions on a judge's political activity. Canon 7A(1)(b) clearly prohibits a judge from making speeches on behalf of a political party or non-judicial candidate or from publicly endorsing a candidate for a non-judicial office.
Canon 7A(2)(c) of the Michigan Code of Judicial Conduct allows a judge to contribute to a political party:
"A judge or a candidate for judicial office should refrain from political activity inappropriate to judicial office.
"A Political Conduct in General.
"(2) A judge or candidate for judicial office may:
"(c) Contribute to a political party."
The Michigan Code of Judicial Conduct is patterned to a great extent after the ABA Model Code of Judicial Conduct. Canon 9A(1)(c) of the American Bar Association Model Code prohibits a judge from donating to a political organization or candidate, except as authorized in subsection (A)(2). Canon 7A(2) states that a judge holding office by public election between competing candidates may contribute to a "political party or organization" to the extent permitted by law. However, neither 7A(1)(c) nor 7A(2) of the ABA Model Code authorize a judge to contribute directly to a political candidate.
The Michigan Code of Judicial Conduct would prohibit a judge from making a contribution to a political candidate as distinguished from a political party. 7(A)(2)(c) makes specific reference to a political party. There is no reference in Canon 7 to a political candidate. Had the drafters of the Michigan Judicial Code intended to legitimatize donations to a political candidate as distinguished from a political party, we believe the Michigan Code would have legitimatize both practices.
In summary, Canon 7 applies to a "judge" (retired) acting by appointment as it does to an elective judge serving full-time on the bench. Moreover, a retired judge acting by appointment should not publicly endorse a candidate for non-judicial office or make contributions to a non-judicial candidates campaign fund.