C-222

February 22, 1982

SYLLABUS

A county bar association may not circulate a questionnaire requesting judicial candidates to "agree" or "disagree" on various legal issues already decided upon by the courts of last resort.

A judicial candidate may discuss general philosophy in the course of a campaign, provided the candidate does not give the impression that if elected, the candidate would be unsupportive of the highest controlling legal authority governing the subject under consideration.

References: MCJC 7B(1)(c); MCPR DR 1-102(A)(5); Op 206.

TEXT

A county bar association intends to circulate a questionnaire to judicial candidates requesting the candidates' opinions on various legal issues already decided by courts of last resort. The questionnaire lists some 17 issues and asks the candidate to indicate the candidate's philosophical agreement or disagreement with the court's decisions. The bar association intends to make the responses available to members of the association for their own personal use in deciding which candidates they may wish to support. Responses to the questionnaire would not be released to the news media, nor will the bar association endorse any candidate for judicial office. The bar association asks whether the proposed circulation poses any ethics problems.

Is it ethically appropriate for a bar association to poll judicial candidates on their philosophical agreement or disagreement on legal issues presumably decided by courts of last resort? It has been suggested that a candidate's expressions of opinion on such legal issues do not rise to the level of "pledges or promises of conduct in office," prohibited by MCJC 7B(1) which states:

"(1)A candidate, including an 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 . . . ."

We disagree. Once elected a judge has a responsibility to faithfully and impartially perform the duties of the office. One such duty is to uphold the highest controlling legal authority governing an issue before his or her court. Accordingly, we believe that it would be inappropriate for a judicial candidate to express public disagreement with judicial precedents.

A candidate for judicial office should not give the impression to anyone that the candidate would be unsupportive of controlling judicial authority. To do so would detract from the dignity appropriate to judicial office.

It seems almost unnecessary to add that the form of the proposed questionnaire disposes too simplistically of the difficult legal questions presented. We are well aware that complex issues can rarely be resolved by a simple "yes" or "no." A response of "agree" or "disagree" on the kinds of questions presented in this questionnaire would do a disservice to the candidate. No opportunity is afforded for a candidate to explain the judicial philosophy.

We do not mean that a judicial candidate should never discuss general personal philosophy in the cause of an election campaign. But in doing so, the candidate should not announce conclusions in advance on issues that he or she will be called upon to decide, if elected.

Opinion C-206 is helpful in understanding the permissible boundaries of campaign practices appropriate to judicial office. It says in part:

"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 of that the electorate may form an intelligent estimate of his ability and his fitness to service the judicial office he seeks . . . ."

The privilege is not unlimited. We believe that it is just as inappropriate for a bar association to query a judicial candidate on how the candidate may decide a legal issue as it would be for the candidate to announce the candidate's conclusion in advance.

The suggestion that there is a clear distinction between decided and undecided issues is suspect. Some of the proposed questions are so generalized that related aspects continue to be litigated, meaning that a judicial candidate who responds to them may in effect be expressing personal views on matter he or she could be called upon to decide, if elected.

The committee also believes that it would be virtually impossible to assure that the results of the questionnaire could be kept confidential, as proposed, with the inevitable result that a judge's name could be used in support of some criticism of appellate court decisions.

For these reasons the committee concludes that it would be unethical to circulate the proposed questionnaire asking judicial candidates to comment on legal issues already decided by courts of last resort.