Can a Michigan judge moderate a political party's public forum on pending criminal-justice legislation?

Plain-English summary

A Michigan Court of Appeals judge asked about serving as moderator at a forum on criminal-justice initiatives pending in the state legislature. A political party would sponsor the forum, attendance would be largely party members of the legislature and law-enforcement officials, the event would be open to the public and media, and no fund-raising or campaign activity would occur. The judge would introduce panelists and ask focusing questions, would expect partisan references from participants, but would personally avoid partisan references and any statement compromising the judge's ability to consider future cases. The opinion applied MCJC 1, 2, 4(A) and (B), 5(A) and (B), and 7A(1).

The opinion explained that the Code obligates judges to avoid impropriety and its appearance (MCJC 1, 2) but encourages judges to contribute to improving the law, the legal system, and the administration of justice, including speaking, writing, teaching, and appearing before legislative bodies on such matters (MCJC 4A and B). It noted the limits: judges may not participate in civic activities that reflect adversely on impartiality or inhibit judicial duties, may not engage in proceedings likely to come before them, and may not personally solicit funds or lend the prestige of office to fund-raising (MCJC 5A and B; JI-73, JI-115). On political conduct, judges may not make speeches for a political party or publicly endorse a candidate for non-judicial office, but may attend political gatherings and speak there on their own behalf or for other judicial candidates (MCJC 7A(1); JI-36).

The opinion noted that judges had previously been permitted to moderate local debates on non-partisan issues (A/O 23) and public-affairs programs on controversial issues, provided the judge-moderator abstains from comment on pending or impending proceedings. It concluded that, although judges may not participate in party fund-raising or endorse non-judicial candidates, a judge may serve as moderator at a party's criminal-justice forum so long as the judge does not comment on pending or impending cases, does not take a position on a legislative initiative that would preclude later presiding over a related case, and the participation does not interfere with judicial duties.

Currency note

This opinion was issued in 1999, before Michigan's 2002 adoption of the Ethics 2000 revisions to its Rules of Professional Conduct, and it interprets the Michigan Code of Judicial Conduct as it then stood. The Code of Judicial Conduct, including the canons on judges' extrajudicial and political activity, has been amended since. Treat this page as historical context, not current guidance. Verify against the current Code of Judicial Conduct before relying on any specific rule mentioned here.

Common questions

Q: Can a Michigan judge moderate a political party's forum?

A: The opinion concluded a judge may moderate a party's criminal-justice forum, subject to conditions, even though the judge may not join in party fund-raising or endorse non-judicial candidates.

Q: What must the judge avoid while moderating?

A: The opinion concluded the judge must avoid commenting on pending or impending cases and must not take a position on a legislative initiative that would later require recusal.

Q: Is contributing to law reform permitted at all?

A: Yes. The opinion noted MCJC 4A and B encourage judges to contribute to improving the law and the administration of justice, including appearing before or consulting with legislative bodies.

Q: Can a judge speak for a political party or endorse a non-judicial candidate?

A: No. The opinion concluded a judge may not make speeches for a political party or publicly endorse a candidate for non-judicial office, though a judge may attend political gatherings.

Background and rules framework

The opinion interpreted MCJC 1 and 2 (integrity and the appearance of impropriety), 4A and 4B (improving the law and appearing before legislative bodies), 5A and 5B (extrajudicial and civic activities; solicitation), and 7A(1) (political conduct) of the Michigan Code of Judicial Conduct. It relied on prior opinions JI-36, JI-73, JI-115, and advisory opinions A/O 23 and A/O 63.

Citations and references

Code of Judicial Conduct (as cited):

• MCJC 1, 2 (integrity; avoiding the appearance of impropriety)
• MCJC 4A, 4B (improving the law; appearing before legislative bodies)
• MCJC 5A, 5B (extrajudicial activities; solicitation)
• MCJC 7A(1) (a judge's political conduct)

Other opinions cited:

• Michigan JI-36: a judge attending political gatherings
• Michigan JI-73, JI-115: solicitation and use of the prestige of office
• Michigan A/O 23, A/O 63: a judge moderating debates and public-affairs programs

See also

• Mich Judicial Ethics Op. JI-115: a judge attending a political party's testimonial fundraiser
• Mich Judicial Ethics Op. JI-2: judicial campaign contributions from PACs

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=830&Type=6

Original opinion text

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

JI-121

April 23, 1999

SYLLABUS

A judge may serve as moderator at a forum on criminal justice initiatives conducted by a political party provided (1) the judge does not comment on pending or impending cases in the court system; (2) the judge does not take a position on a legislative initiative that would preclude the judge from later presiding over a case or controversy involving the subject matter of the forum; and (3) the judge's participation in the forum does not interfere with the performance of the judge's judicial duties.

References: MCJC 1, 2, 4A and B, 5A and B, 7A(1); JI-36, JI-73, JI-115, A/O 23, A/O 63.

TEXT

A judge of the Michigan Court of Appeals inquires about the propriety of a judge serving as a moderator in a forum on criminal justice initiatives pending in the state legislature.

A Michigan political party will sponsor the forum. Attendance at the forum will be largely, if not exclusively, political party members of the legislature, and state and local law enforcement officials. The event will be open to the public including the media. No fund raising or campaign activities will be conducted in connection with the forum.

The judge attendee will introduce the panelists and when appropriate ask questions to focus on the issues and clarify the discussion. The judge understands that the participants likely will engage in partisan references. However, the judge personally will avoid partisan reference and any other statements that would compromise the judge's ability to consider future cases or controversies arising out of initiatives discussed at the forum.

The Michigan Code of Judicial Conduct obligates all judges to avoid impropriety, and the appearance of impropriety, and at all times to observe high standards of conduct so that the integrity and independence of the judicial system is not compromised in a manner that erodes public confidence in the impartiality of the judiciary. MCJC 1 and 2.

MCJC permits, in fact encourages, judges to engage in activities to improve the law, the legal system and the administration of justice. MCJC 4A and B states:

"As a judicial officer and person specially learned in the law, a judge is in a unique position to contribute to the improvement of the law, the legal system, and the administration of justice, including revision of substantive and procedural law and improvement of criminal and juvenile justice. To the extent that time permits, the judge is encouraged to do so, either independently or through a bar association, judicial conference, or other organization dedicated to the improvement of the law.

• A judge may speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice.

• A judge may appear at a public hearing before an executive or legislative body or official on matters concerning the law, the legal system, and the administration of justice, and may otherwise consult with such executive or legislative body or official on such matters."

Judges are not permitted participate in civic activities that reflect adversely on the judge's impartiality or that in any manner inhibit performance of judicial duties. Judges cannot engage in proceedings that are likely to come before the judge when sitting as a judicial officer. Judges cannot personally solicit funds for any educational, religious, charitable, fraternal, or civic organization of permit the use of the prestige of judicial office for that purpose. MCJC 5A and B; JI-73, JI-115.

With regard to political conduct, judges cannot make speeches on behalf of a political party or publicly endorse a candidate for non-judicial office, but may attend political gatherings and speak at such gatherings on the judge's own behalf or for other judicial candidates. MCJC 7A(1); JI-36.

In the past, judges have been permitted to moderate a local debate concerning non-partisan issues. A/O 23. Judges may moderate a public affairs program to debate a controversial issue provided the judge-moderator abstains from public comment about a pending or impending proceeding in any court.

While judges are proscribed from participation in fund raising efforts on behalf of political parties and the endorsement of non-judicial candidates for election to partisan office, a judicial officer may serve as moderator at a forum on criminal justice initiatives conducted by a political party provided the judge does not comment on pending or impending cases in any court; the judge does not take a position on a legislative initiative that would preclude the judge from later presiding over a case or controversy involving the matter; and, the judge's participation does not interfere with the performance of the judge's judicial duties.