C-227

November, 1982

SYLLABUS

A candidate for state supreme court justice may criticize the majority portion of a divided opinion of that court, and the legal philosophy that underlies that portion of the opinion.

References: MCJC 7B; Canons of Judicial Ethics, Canon 30; C-74, C-219.

TEXT

A candidate for the Michigan Supreme Court has asked if it is ethically proper to criticize the majority portion of a divided opinion of that Court, and the legal philosophy that underlies that portion.

MCJC 7B 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; . . . ."

Canon 30 of the former Canons of Judicial Ethics 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 prejudices of the appointing or electing power; he should not announce in advance his conclusions of law on disputed issues to secure class support, and he should do nothing while a candidate to create the impression that if chosen, he will administer his office with bias, partiality or improper discrimination."

Opinion C-219 discussed the question of judicial election campaign practices. A judicial candidate ad requested an opinion on the use of the slogan, "A strict sentencing philosophy! A hard working man!" in advertising materials intended for public distribution. The opinion held that the phrase "strict sentencing philosophy" creates the impression that the candidate, if elected, would act with bias or partiality in imposing a sentence, without regard to individual mitigating circumstances. However, the opinion did indicate that a judicial candidate could discuss general sentencing philosophy in the course of the campaign, but only if the candidate took care not to suggest any predisposition toward strict or lenient sentencing.

Opinion C-74 states in part:

"It is improper for a candidate for judicial office, whether in personal letters, public addresses or advertising, to unjustly criticize incumbent judges or to promise, if elected, to render decisions favorable to a particular class or group." Emphasis added.

After reviewing these authorities the committee concludes that the underlying purpose of the Michigan Code of Judicial Conduct is to further the effectiveness of the judicial system in a democratic society. The committee sees no useful purpose in sheltering the judicial philosophies of incumbent justices from the scrutiny of the electorate. To place undue restraints on criticism of Supreme Court opinions by candidates for the Supreme Court has serious constitutional implications, as well as ethical considerations. We believe that the effectiveness of the judicial system will be promoted by a free and open public discussion concerning opinions by and legal philosophies of incumbent justices.

We hasten to add that such discussion, criticism or debate must in all instances be fair, reasonable and just, and must not create an impression that the candidate, if elected or re-elected, would act with bias or partiality favorable to a particular class or group. A candidate should never make statements that are false or misleading, or unjustly attack an incumbent judge.