Could a Michigan judicial candidate use a 'strict sentencing philosophy' slogan in campaign advertising?

Plain-English summary

The opinion addressed a district court judge contemplating a run for circuit court whose friends proposed the campaign slogan "A strict sentencing philosophy! A hard working man!" The judge asked whether the slogan would be proper under MCJC 7, which directs a judicial candidate to maintain the dignity of the office and not to make pledges or promises of conduct in office other than the faithful and impartial performance of duties.

Drawing on Canon 30 of the former Canons of Judicial Ethics and on Opinion 206 (which condemned campaign appeals beamed at special-interest groups and "emotional sloganeering"), the Committee concluded that, whether or not the phrase amounted to a "pledge" or "promise," its use was not permissible. The Committee reasoned that the phrase "A strict sentencing philosophy!" standing alone created an impression that the candidate, if elected, would act with bias or partiality in sentencing convicted defendants without regard to individual mitigating circumstances, and was a subtle appeal to voters who believed courts had been too lenient. The Committee added that this did not bar a candidate from discussing general sentencing philosophy during a campaign, so long as the candidate took care not to suggest a predisposition toward strict or lenient sentencing without regard to individual mitigating circumstances.

Currency note

The State Bar of Michigan has flagged this opinion as overruled by the White decision and no longer valid, directing readers to JI-131 (issued February 2005). This page indexes the opinion for historical research only; it is not current guidance. Read alongside the constitutional limits later placed on restrictions of judicial-campaign speech.

This opinion was issued in 1980 under the Michigan Code of Judicial Conduct as it then stood. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Could a judicial candidate run on a "strict sentencing philosophy" slogan?

A: Under this opinion, no. The Committee concluded the phrase, standing alone, created an impression of biased or partial sentencing without regard to mitigating circumstances, and was therefore improper. The State Bar has since flagged the opinion as overruled by the White decision.

Q: Could a candidate discuss sentencing philosophy at all?

A: Per the opinion, yes, in general terms, so long as the candidate took care not to suggest a predisposition toward strict or lenient sentencing without regard to individual mitigating circumstances.

Q: Is this opinion still good guidance?

A: No. The State Bar flags it as overruled by the White decision, pointing to JI-131 (February 2005). It is retained here only as a historical record of the pre-White approach to judicial-campaign speech.

Background and rules framework

The opinion interpreted MCJC 7 of the Michigan Code of Judicial Conduct (a judicial candidate's duty to maintain dignity and not to make pledges or promises of conduct in office other than faithful and impartial performance), read together with Canon 30 of the former Canons of Judicial Ethics and the Committee's earlier Opinion 206 on permitted versus proscribed judicial-campaign activity.

Citations and references

Code of Judicial Conduct:

• MCJC 7 (judicial candidates; pledges and promises; dignity of the office)
• Canons of Judicial Ethics, Canon 30 (promises of conduct in office)

Other opinions cited:

• Op 206; Op 74; CI-166; ABA Op 93; ABA Op 312; ABA Informal Op 486

See also

• Mich Ethics Op. JI-131: Judicial Campaign Speech
• Mich Ethics Op. JI-4: Judicial Campaign Salary-Charity Pledge
• OH BPC Op. 89-033: Judicial Candidates Announcing Views
• NY State Bar Op. 391: Judicial Candidate Campaign Material

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=10&Type=6

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

C-219

February 15, 1980

This opinion is overruled by the White decision and is no longer valid. Refer to JI-131 issued February 2005.

SYLLABUS

A candidate for judicial office is prohibited under Canon 7 of the Michigan Code of Judicial conduct from employing the phrase "(a) strict sentencing philosophy!" in campaign literature since this phrase, standing alone, creates an impression of possible bias or partiality in the candidate's proposed sentencing practices.

A judicial candidate may discuss personal sentencing philosophy so long as the candidate takes care not to suggest a predisposition toward strict or lenient sentencing without regard to individual mitigating circumstances.

References: MCJC 7; Canons of Judicial Ethics, Canon 30; Op 206.

TEXT

A district court judge is contemplating running for the office of circuit court judge. Friends of the judge have suggested the campaign slogan, "A strict sentencing philosophy! A hard working man!," which would appear in advertising materials disseminated during the election campaign. The judge asks whether the slogan would be proper.

MCJC 7 states in part:

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

"(a) should maintain the dignity appropriate to judicial office . . . .

". . .

"(c) should not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office . . . ."

Canon 30 of the former Canons of Judicial Ethics provides in part:

"A candidate for judicial position should not make or suffer others to make for him, promises of conduct in office which appeal to the cupidity or prejudices of the appointing or electing power; he should not announce in advance his conclusions of law on disputed issues to secure class support, and he should do nothing while a candidate to create the impression that if chosen, he will administer his office with bias, partiality or improper discrimination."Emphasis added.

Opinion 206, in distinguishing permitted from proscribed judicial campaign activities, states in part:

"Troubled waters . . . arise when the candidate focuses his advertising toward a special interest group. One example of this is where the candidate beams his advertising toward a group such as the so-called labor block (Informal Opinion, May 18, 1959; Michigan Opinion 74, 1941). The appeal can be direct or subtle, for example, the candidate may use words informing that he is 'the people's lawyer.' He may imply that if elected he would or would not issue 'labor injunctions.' He may state in an advertisement that if elected he would or would not favor 'Home Owner Ordinances' or 'Schoolroom Integration' or any other topical issue, the purpose of which is to give advance disclosure as to how the judicial candidate might rule if litigation came before him involving that general issue. The practice condemned by the committee is predilection of the votes . . . . He may properly inform the electorate of his background and the fact that he is an attorney . . . . Toward this end he may engage in a scholarly and judicial course of conduct and within reasonable bounds make public statements as to his qualifications and engage in discussions in depth relating to the current issues of the day to the end that the electorate may form an intelligent estimate of his ability and his fitness to serve the judicial office he seeks. The license enjoyed by the candidate in executing this function, however, is not unlimited and cannot be directed to prejudicial appeals relating to race, creed, religion, or national origin. Emotional sloganeering, i.e., 'Friend of the Working Man, Plaintiff's Attorney, Protector of the Home, Owner, Fighter for Civil Rights'(,) appeals to passion, false labeling, inflammatory TV spot commercials and other like practices are to be condemned." Emphasis added.

Similarly, see Op 74, CI-166, ABA Op 93 and 312, ABA iC-486.

Based on these opinions and the cited canons, the committee concludes that, irrespective of whether use of the phrase "A strict sentencing philosophy!" in campaign literature constitutes a "pledge" or "promise" under MCJC 7, such use is not permissible. This phrase, standing alone, creates an impression that the candidate, if elected, will act with bias or partiality in imposing sentence upon convicted defendants without regard to individual mitigating circumstances. It suggests a subtle appeal to that segment of the public who may believe the courts have been unduly lenient or "soft" on criminals (and whether one believes that such a segment of the public is more correct than inaccurate is irrelevant), and is thus, proscribed by ethics rules. This is not to imply, however, that a judicial candidate may never discuss general sentencing philosophy in the course of the campaign, but only that when doing so the candidate take care not to suggest a predisposition toward strict or lenient sentencing without regard to individual mitigating circumstances.