C-219

February 15, 1980

This opinion is overruled by the White decision and is no longer valid. Refer to JI-131 issued February 2005.

SYLLABUS

A candidate for judicial office is prohibited under Canon 7 of the Michigan Code of Judicial conduct from employing the phrase "(a) strict sentencing philosophy!" in campaign literature since this phrase, standing alone, creates an impression of possible bias or partiality in the candidate's proposed sentencing practices.

A judicial candidate may discuss personal sentencing philosophy so long as the candidate takes care not to suggest a predisposition toward strict or lenient sentencing without regard to individual mitigating circumstances.

References: MCJC 7; Canons of Judicial Ethics, Canon 30; Op 206.

TEXT

A district court judge is contemplating running for the office of circuit court judge. Friends of the judge have suggested the campaign slogan, "A strict sentencing philosophy! A hard working man!," which would appear in advertising materials disseminated during the election campaign. The judge asks whether the slogan would be proper.

MCJC 7 states in part:

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

"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."Emphasis added.

Opinion 206, in distinguishing permitted from proscribed judicial campaign activities, states in part:

"Troubled waters . . . arise when the candidate focuses his advertising toward a special interest group. One example of this is where the candidate beams his advertising toward a group such as the so-called labor block (Informal Opinion, May 18, 1959; Michigan Opinion 74, 1941). The appeal can be direct or subtle, for example, the candidate may use words informing that he is 'the people's lawyer.' He may imply that if elected he would or would not issue 'labor injunctions.' He may state in an advertisement that if elected he would or would not favor 'Home Owner Ordinances' or 'Schoolroom Integration' or any other topical issue, the purpose of which is to give advance disclosure as to how the judicial candidate might rule if litigation came before him involving that general issue. The practice condemned by the committee is predilection of the votes . . . . 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 that the electorate may form an intelligent estimate of his ability and his fitness to serve the judicial office he seeks. The license enjoyed by the candidate in executing this function, however, is not unlimited and cannot be directed to prejudicial appeals relating to race, creed, religion, or national origin. Emotional sloganeering, i.e., 'Friend of the Working Man, Plaintiff's Attorney, Protector of the Home, Owner, Fighter for Civil Rights'(,) appeals to passion, false labeling, inflammatory TV spot commercials and other like practices are to be condemned." Emphasis added.

Similarly, see Op 74, CI-166, ABA Op 93 and 312, ABA iC-486.

Based on these opinions and the cited canons, the committee concludes that, irrespective of whether use of the phrase "A strict sentencing philosophy!" in campaign literature constitutes a "pledge" or "promise" under MCJC 7, such use is not permissible. This phrase, standing alone, creates an impression that the candidate, if elected, will act with bias or partiality in imposing sentence upon convicted defendants without regard to individual mitigating circumstances. It suggests a subtle appeal to that segment of the public who may believe the courts have been unduly lenient or "soft" on criminals (and whether one believes that such a segment of the public is more correct than inaccurate is irrelevant), and is thus, proscribed by ethics rules. This is not to imply, however, that a judicial candidate may never discuss general sentencing philosophy in the course of the campaign, but only that when doing so the candidate take care not to suggest a predisposition toward strict or lenient sentencing without regard to individual mitigating circumstances.