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Ethics Opinion

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NOTE: Effective January 1, 2000, the "180-day Fundraising Period" in MCJC 7B(2)(c) has been replaced by a fund-raising period starting on February 15 of the year of the election.

JI-74

October 18, 1993

SYLLABUS

    A judicial candidate may form and register a campaign committee prior to the 180-day fund raising period.

    A candidate may make personal contributions to the registered campaign committee, and the campaign committee may make expenditures, prior to the 180-day fund raising period.

    Unsolicited campaign contributions may be accepted by the registered campaign committee prior to the 180-day fund raising period, but may be expended only within the fund raising period.

    A judicial candidate should campaign under the candidate's full name so as to avoid any mistaken identity.

    References: MCJC 7B; JI-2, JI-17; C-206; CI-987; MCL 169.202(1), MCL 169.221, MCL 169.236(1), MCL 169.252(6).

TEXT

A lawyer plans to become a candidate for a judicial seat now held by the lawyer's spouse who is not seeking re-election. The lawyer candidate asks:

  1. How soon before a judicial election may a campaign committee be formed?
  2. Does the 180-day fundraising rule proscribe the candidate from expending personal funds for campaign expenses such as letterhead, photos, hall rentals, billboards, printing, advertising gimmick, postage, etc., items that require reservations, or time limitations?
  3. Does the 180 day fundraising rule prohibit acceptance of unsolicited donations prior to the 180 days?
  4. Must the lawyer candidate use a first name in campaign advertising in order to distinguish the candidate from the candidate's incumbent spouse?

The "180-day fundraising period" is found in MCJC 7B(2)(c) which allows a judicial campaign candidate committee to solicit funds for the judicial campaign no earlier than 180 days before a primary election or nominating convention. MCJC 7B states:

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

      "(a) should maintain the dignity appropriate to judicial office, and should encourage family members to adhere to the same standards of political conduct that apply to the judge;

      "(b) 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;

      "(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 identity, qualifications, present position, or other fact."

The first three questions posed by the inquirer have been directly addressed in the pamphlet Becoming A Judge: Ethics and Campaign Practices, which has been published and distributed by the State Bar of Michigan and to candidates through the State Bureau of Elections. (1) A candidate committee authorized under MCL 169.221 may be established prior to the fund raising period preceding the election. The campaign committee must be registered with the Bureau of Elections within 10 days of its formation [MCL 169.236(1)]. Until the campaign committee authorized under MCL 169.221 is established, there is no entity authorized to accept or spend campaign contributions. (2) As stated in CI-987, "The canon 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 candidate's own funds, or bar campaigning outside the 180-day period. Candidates should certainly be discrete in what they do at any time; they should recognize the implication of the 180 day limit in the canon and restrain their campaign efforts at other times." We note that campaign statutes may further constrain the conduct of candidates, i.e., only the registered campaign committee may expend funds. (3) Unsolicited contributions may be accepted by the campaign committee, but not personally by the candidate [JI-2]; an unsolicited contribution may be accepted prior to the fundraising period, but may be expended only within the fundraising period [JI-17].

With respect to the last question posed, the pamphlet is also very helpful. In the section entitled Campaign Advertising, one will find the following:

    ". . .

    "b. Ads may not be false, fraudulent, deceptive, or misleading, or create a false impression through emphasis of size, color, or typestyle.

    "c. Ads must include the name of the candidate and state the item is a political advertisement.

    "d. Ads may not misrepresent the identity, background, qualifications, or present position of the candidate, or other fact.

    ". . .

    "f. Ads may not in content, form, or manner of presentation create or tend to create the impression of incumbency, when the candidate is not in fact an incumbent."

It seems patent that any advertising presented by a judicial candidate must clearly identify the candidate, avoid misrepresentation and the creation of false impressions of identity, qualification, background or incumbency.

The inquirer plans to be a candidate for a judicial seat now held by a spouse who will not seek re-election. In order to avoid ethical challenge the candidate must exercise special care respecting name, identity, qualification, background and incumbency. If a standard to measure propriety in such a case was selected it would be a kind of "res ipsa loquitur." If the undertaking bespeaks or raises questions of impropriety, it probably is just that. The candidate must use the candidate's full name throughout the campaign and in all campaign literature.

 
     

 

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