This opinion replaces Informal Opinion CI-547

JI-145

June 15, 2015

SYLLABUS

A sitting judge may make a private monetary donation to a nonjudicial candidate’s campaign. Even though the candidate must publish a financial report of donations, the contribution would not amount to a "public endorsement" of the candidate.

Given the amendments of Canons 2 and 4 of the Code of Judicial Conduct allowing judges to be more involved in fundraising activities, a campaign contribution to a nonjudicial candidate, without more, is not ethically prohibited.

References:  MCJC 2, 4, and 7.

TEXT

A judge inquires whether a sitting judge’s donation to a nonjudicial candidate would constitute a "public endorsement"of that candidate in violation of Canon 7. The inquiring judge has not previously made such a contribution but has donated to a political party’s fundraiser as permitted by Canon 7A(2)(c). In as much as candidates for nonjudicial office are required to disclose donations to their campaign, the question presented is whether a judge’s contribution to a nonjudicial candidate’s campaign constitutes a "public endorsement" prohibited by Canon 7A(1)(a).

This issue was previously considered in 1980 by the combined Ethics Committee, which concluded in Informal Opinion CI-547 that a retired judge acting by appointment as a visiting judge was subject to Canon 7 and was therefore prohibited from contributing to the campaign of a nonjudicial candidate. In reaching its conclusion, the combined Ethics Committee reasoned that since Canon 7A(1) did not specifically permit a judge to donate to a nonjudicial candidate to do so would constitute an impermissible endorsement.

In light of the recent modifications to the Canons in 2013 and the conservative approach taken by the committee in deciding CI-547, the Committee reconsiders this issue and its conclusion made in CI-547. In so doing, the Committee is influenced by the intended objectives for the modifications as reflected by the Staff Comments to Canon 7, which state that: "Nearly all of the current language of Canon 2, 4, 5, and 7 is retained in this proposal. The new language adds explicit provisions to describe the types of activities that are allowed or prohibited for judges which until now had been undefined and therefore the source of confusion."

Canon 7A was not modified in 2013. Canon 7A(1) expressly prohibits a judge or candidate for judicial office from political activity inappropriate to judicial office, which includes (a) holding any office in a political party, and (b) making speeches for a political party or nonjudicial candidate or publicly endorsing a nonjudicial candidate. Canon 7A(2) expressly allows a judge to (a) attend political gatherings, (b) speak to such gatherings on the judge’s own behalf or on behalf of other judicial candidates, and (c) contribute to a political party. In contributing to a political party, the judge’s support of the political party is private in nature and is only made public by the reporting obligation of the political party under the law. Similarly, the judge’s private monetary donation to a nonjudicial candidate’s campaign is not an ethically prohibited "public endorsement" because the judge’s contribution only becomes public due to reporting requirements imposed upon the candidate. MCL 169.226(1)(e) requires each individual contributor’s name to be disclosed in the candidate’s campaign statement. Attending a political gathering, which may result in a reportable donation, is in fact an even more overt act than privately donating to a candidate’s campaign, yet such conduct is permissible under Canon 7A(2).

The amendments to Canons 2 and 4 in 2013 relaxed some of the previous restrictions on a judge’s extrajudicial activities. Canon 2C lists clearly prohibited activities but then states, "A judge should not use the prestige of office to advance personal business interests or those of others, but participation in activities allowed in Canon 4 is not a violation of this principle."

Canon 4D which addresses a judge’s fundraising activities states, "A judge should not individually solicit funds for any educational, religious, charitable, fraternal, or civic organization or any organization or governmental agency devoted to the improvement of the law, the legal system, or the administration of justice or use or permit the use of the prestige of the office for that purpose."

Considering the question presented in light of the amended Canons, the Committee reasons that although Canon 4D prohibits a judge from individually soliciting funds for any organization, if a judge can attend political gatherings, speak at political gatherings on his or her own behalf or on behalf of another judicial candidate, and contribute to a political party pursuant to Canon 7A(2)(a), (b) and (c), a private donation by a judge to a nonjudicial candidate’s campaign, without more, is not an ethically prohibited "public endorsement."

In summary, a sitting judge may make a private monetary donation to a nonjudicial candidate’s campaign. Even though the candidate must publish a financial report of donations, the contribution would not amount to a "public endorsement" of the candidate. Given the amendments to Canons 2 and 4 of the Code of Judicial Conduct allowing judges to be more involved in fundraising activities, a campaign contribution to a nonjudicial candidate, without more, is not ethically prohibited.

This opinion replaces Informal Opinion CI-547.