NOTE: Effective May 1, 2019, Canon 7 was amended to eliminate the $100 per lawyer limitation and remove the disclaimer requirement and instead to refer to the statutory campaign limitation to bring Michigan in conformity with the majority of other states.

NOTE: Effective January 1, 2000, the "180-day Fundraising Period" in MCJC 7B(2)(c) has been replaced by a fund-raising period starting on February 15 of the year of the election.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-5

April 11, 1989

SYLLABUS

A candidate for judicial office may retain and use a contribution to retire campaign expenses under circumstances where a check was mailed prior to the close of the general election, but received after the date of the general election.

References: MCJC 7B(2)(c); MRPC 8.2(b).

TEXT

A candidate for judicial office in the current general election asks whether it is ethically proper to retain and use a $1,000 contribution received after the election, to retire campaign debts under the following circumstances.

On the afternoon of the election, a personal friend informed the candidate that it was the friend's intention to make a personal contribution and had written a check for that purpose. The check is dated November 5, 1988, payable to the order of "Committee to Elect . . . ." During the election day telephone conversation, the candidate informed the contributor that payment had to be made promptly before the candidate's campaign was concluded. Rather than personal delivery to the candidate's campaign committee on election day, the contributor mailed the check, which was received two days later.

A lawyer candidate for judicial office must comply with applicable provisions of the Code of Judicial Conduct. MRPC 8.2(b). MCJC 7B(2)(c) states:

"(c) Such committees are prohibited from soliciting campaign contributions from lawyers in excess of $100 per lawyer, but may solicit public support from lawyers. A candidate's committee may solicit funds for his campaign no earlier than 180 days before a primary election or nominating convention and may not solicit or accept funds after the date of the general election. A candidate should not use or permit the use of campaign contributions for the private benefit of himself or members of his family." Emphasis added.

MCJC 7B(2)(c) states a candidate may not "accept funds after the date of the general election." The issue is whether the mailing of a campaign contribution the day of the election and its receipt the following day satisfies the requirements of MCJC 7B(2)(c). The Committee believes it does. The Canon recognizes the need to raise money to encourage qualified candidates to seek election to judicial office. The Canon is intended to minimize the possibility that lawyers may try to influence a successful candidate by waiting until the results of the election are known before making the contribution.

In this case, the contribution was made during the general election by delivery to the postal system. Mailing on the last day is recognized for many purposes to be timely. For example: MCR 2.107(C) provides that "[s]ervice by mail is complete at the time of mailing."

Today, a customary means of payment is by personal check and the means of transmittal customarily used is by mail. In fact, the use of the mails has become so commonplace that the Internal Revenue Service recognizes that, if an item is properly mailed, the postmark date is considered as the date for payment of taxes and the filing of returns. 26 USC 7502(a)(1).

The Committee notes that both the donor and the donee formulated the mental resolution that the contribution be accepted before the close of the election. Since the donee will have likely formed an intention to accept a contribution before its actual receipt, to the extent state of mind is relevant, it is the giver's motive that should be examined. Since the check was written and mailed prior to the close of the general election and before the results were known, there is no suggestion that the contributor was attempting to improperly influence the judicial process.

The Committee distinguishes this situation from promises or pledges of future contributions to be remitted following the close of the general election.