Could a Michigan judicial candidate pledge part of the judge's salary to charity, or blame incumbent judges for high salaries, in campaign ads?

Plain-English summary

The opinion addressed a proposed campaign advertisement in which a judicial candidate asserted that judicial salaries were too high and pledged, if elected, to donate a portion of the salary to a charitable enterprise. The Committee was asked whether the advertisement would be ethically proper.

The Committee drew a line between the conduct and the campaign promise. It observed there is no ethical problem in a judge personally setting aside part of a salary for charity, but concluded that elevating that donation into a campaign pledge violates MCJC 7B(1)(c), which bars a candidate from making pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office. The Committee reasoned that a relatively high, fixed judicial salary keeps candidacy open to people of all means and frees judges from special-interest pressure, and that a salary-donation pledge is a promise of conduct in office long recognized as improper, citing Canon 30 of the 1924 ABA Canons of Judicial Ethics.

The Committee added a second holding on the ad's factual claims. Because MCJC 7B(1)(c) also prohibits misrepresentation of fact, and because judicial salaries are set through a process that interweaves state-level decisions with decisions of county boards of commissioners, the Committee concluded that to the extent the ad made it appear judges set their own salaries, it was misleading, and to the extent it attacked incumbent judges for the size of salaries they do not set, it was unethical. The Committee anchored this to Op 74, which addressed false or misleading statements about a candidate's record and unjust attacks on incumbent judges.

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The State Bar of Michigan has flagged this opinion as overruled by the White decision and no longer valid, directing readers to JI-131 (issued February 2005). This page indexes the opinion for historical research only; it is not current guidance.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 1989 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 Treat this page as historical context, not current guidance.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 pledge to give part of the salary to charity in a campaign ad?

A: Under this opinion, no. The Committee concluded that turning a charitable donation into a campaign pledge violated MCJC 7B(1)(c) as a promise of conduct in office other than faithful and impartial performance of duties. The State Bar has since flagged the opinion as overruled by the White decision.

Q: Could the ad blame incumbent judges for high judicial salaries?

A: No. The opinion concluded that because salaries are set by state and local legislative bodies rather than by judges, an ad suggesting judges set their own salaries was misleading, and attacking incumbents for salaries they do not set was unethical.

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 7B(1)(c) of the Michigan Code of Judicial Conduct, which bars a judicial candidate from making pledges or promises of conduct in office other than the faithful and impartial performance of duties and from misrepresenting facts such as the candidate's qualifications or position. It read that canon together with Canon 30 of the former ABA Canons of Judicial Ethics and the Committee's earlier Opinion 74 on false statements and attacks on incumbents.

Citations and references

Code of Judicial Conduct:

• MCJC 7B(1)(c) (pledges or promises of conduct in office; misrepresentation of fact)
• ABA Canons of Judicial Ethics, Canon 30 (promises appealing to the electing power)

Other opinions cited:

• Op 74 (false or misleading statements; attacks on incumbent judges)

See also

• Mich Ethics Op. JI-131: Judicial Campaign Speech
• Mich Ethics Op. C-219: Judicial Campaign Slogans
• 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=713&Type=6

Original opinion text

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

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

JI-4

May 19, 1989

SYLLABUS

A campaign advertisement for a judicial candidate in which the candidate pledges a portion of judicial salary for charitable purposes, is improper.

A campaign advertisement which directly or impliedly blames incumbent judges for a decision made by state or local legislative entities is improper.

References: MCJC 7B(1)(c); Op 74.

TEXT

A campaign advertisement proposed by a judicial candidate asserts that judicial salaries are too high and that the candidate will therefore pledge a portion of his salary, if elected, to a charitable enterprise. The Committee is asked to determine whether the campaign advertisement would be ethically proper.

There is no ethical problem in a judge setting aside a portion of salary for a charitable purpose. But the elevation of that charitable donation to a campaign pledge is a violation of MCJC 7B(1)(c) which states:

"(1) A candidate, including an incumbent judge, for a 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; or misrepresent his identity, qualifications, present position, or other fact." Emphasis added.

The pledge of a donation of a portion of judicial salary to charity is a promise of conduct in office "other than the faithful and impartial performance of the duties of the office." Such a promise has long been recognized as improper. It was expressly forbidden by the ABA Canons of Judicial Ethics adopted in 1924. Canon 30 states, "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 prejudice of the appointing or electing power."

Judicial salaries are established by a process mandated by the constitution and reflect the value and worth of the office. By establishing a salary at a relatively high level, the system opens candidacy to the rich and disadvantaged alike, attracts those in many walks of life, and encourages candidates who may have no outside source of income. It is this freedom from special interest groups that promotes fair administration of the system of justice and prevents diversion of attention to matters irrelevant to, as stated in MCJC 7B(1)(c), "the impartial performance of the duties of the office."

MCJC 7B(1)(c) also prohibits misrepresentation of fact. In Op 74, interpreting the Michigan Canons of Judicial Ethics, the Committee was concerned with (1) false and misleading statements regarding the candidate or the candidate's record, and (2) unjust attacks on incumbent judges. We stated, "it is the duty at the bar to endeavor to prevent political considerations from outweighing judicial fitness in the selection of judges . . . ."

The establishment of judicial salaries is a complex process. State law interweaves the setting of the salary on a state level with local decision made by the various county boards of commissioners. To the extent the ad makes it appear that payment of judicial salaries and expenses is determined by judges themselves instead of the state and local legislative bodies, the ad is misleading. To the extent the ad attacks incumbent judges for the size of their salaries when the judges do not set the salary, the ad is unethical.