JI-147

November 1, 2019

SYLLABUS

Judicial officers and judicial candidates are not limited to conducting campaign activity on only a judicial campaign social media account. Since all social media platforms require a mutual consent or acknowledgement to follow on personal or professional social media accounts, there is a general understanding that those who do not want to see such material are able to easily block, hide, or ignore the postings by judicial officers and judicial candidates on those personal and professional accounts. For that reason, judicial officers and judicial candidates are expected to follow the rules for advertising and solicitation that would apply to in-person interactions, simply transferring these guidelines to social media outlets. Mirroring in-person campaign rules, judicial officers and judicial candidates may use social media to notify and advertise their own campaigns on personal or professional accounts, but solicitation and acceptance of campaign contributions are reserved only for judicial candidates’ campaign committees.

References: MCJC 1, 2, 7A, 7B; JI-17, JI-74, JI-111, JI-148; CI-509; 5 CFR § 2635.808(c)(1).

TEXT

The Michigan Code of Judicial Conduct (MCJC) already addresses the issues of judicial officers’ interactions with individuals regarding judicial campaigns and solicitation of campaign contributions. MCJC 7B. Judicial officers, pursuant to Canon 7B, should only solicit campaign contributions in a manner that promotes judicial integrity, and would not violate the separation of their campaign from cases, controversies, or issues that are likely to come before the court, so as to not undermine the impartial performance of the adjudicative duties of the office. MCJC 7B(1)(c). Further, judicial officers and judicial candidates must not personally solicit or accept campaign contributions. MCJC 7B(2)(a). All fundraising activities must be done through an established campaign committee to secure and manage the expenditure of funds for the campaign of the judicial officer or judicial candidate. JI-17, JI-111, CI-509.

While there is no reason to believe that these judicial Canons would not also apply to social media platforms, the form in which contact is created through social media potentially alters from in-person communication. Michigan does not currently have a judicial ethics canon that prohibits judicial officers from using social media or identifying themselves on social media as a judicial officer. This is a stark juxtaposition to Michigan’s explicit Canons regarding in-person solicitation and advertising of judicial campaigns.

To be clear, these Canons apply to judicial officers’ and judicial candidates’ personal or professional social media accounts, not social media accounts that are created on behalf of the judicial candidate’s campaign committees. Accounts created on behalf of the judicial candidates’ campaign committees must subsequently follow rules set forth regarding the restrictions and requirements of campaign committees. Just as the candidate’s campaign committee may solicit contributions in-person, it may also do so through social media platforms so long as the account is through the campaign committee and not the judicial officer’s or judicial candidate’s personal or professional account. JI-74.

In the current iteration, the MCJC is silent as to its interpretation and instruction for social media use by judicial officers. Michigan does not forbid social media accounts, thus the inverse implication is assumed; social media accounts are permissible for judicial officers in Michigan, so long as the online activity does not violate any of the already established Canons. As previously stated, there already are guidelines in place to instruct judicial officers and judicial candidates how to interact with others when soliciting and advertising for a judicial campaign, so the format of such interactions, i.e. online media platforms, should not change these ethical obligations. Even though social media allows a greater audience with a single click, it does not change the substance of the interactions. While this creates potential issues for judicial officers and judicial candidates who post matters without thinking through the matter thoroughly, it does not change the fact that the information is received voluntarily, since the recipients of said postings had to either voluntarily follow the judicial officer or judicial candidate, or mutually consent to a connection on the social media platform.

So long as the tenet of integrity and independence at the judicial level is upheld, there is no explicit Michigan ethics violation for judicial officers and judicial candidates who use their personal or professional social media account to inform their followers, or friends on social media, that they are in fact running a judicial campaign. MCJC 1. At the federal level, this rule expands further to allow judicial officers to even solicit fundraising contributions for charities over social media so long as they are not personally soliciting funds from subordinates or a known prohibited source. 5 CFR § 2635.808(c)(1). Similarly, Ethics Opinion JI-148 addresses this issue for Michigan judicial officers and judicial candidates.

This is not to be confused with political campaign solicitations, which is prohibited by the MCJC. MCJC 7A. While Michigan judicial officers and judicial candidates are expected to accept restrictions on conduct that might be viewed as burdensome by the ordinary citizen, the actual restrictions of using social media platforms to conduct campaign advertisements and solicitation of donations in Michigan is not viewed differently than it would be if it were instead, door-to-door campaigning; albeit the use of social media has provided judicial officers and judicial candidates a much wider audience with a significantly less amount of work.

Given that there is no canon prohibiting such an action, and because previous judicial advisory opinions do not speak to this matter specifically, and because our current judicial conduct guidelines do not unreasonably restrict judicial officers and judicial candidates in their face-to-face interactions, this same logic can be translated to social media accounts, both personal, and campaign-related. MCJC 2.

Judicial officers and judicial candidates may use their personal or professional social media platforms for a judicial campaign, as they would during in-person communications. This includes endorsement of other candidates, advertising of one’s own campaign, and general links to said campaign committee’s accounts; but just as one is limited during in-person interactions for campaign contributions, so is the judicial officer and the judicial candidate limited online. Judicial officers and judicial campaigns must not use their personal or professional social media platforms to solicit or accept campaign contributions, just as they would not be allowed to during in-person communications either. JI-17 citing MCJC 7B(2)(a). Moving forward, judicial officers and judicial candidates should simply consider whether their actions online align with the clear guidelines that already apply to face-to-face interactions. That is, regarding the two questions at hand specifically, and all interactions with others generally, if a judicial officer or a judicial candidate could not ethically commit the action in person, the judicial officer or judicial candidate cannot ethically commit the action over social media, and vise versa.

CONCLUSION

Judicial officers and judicial candidates are not limited to conducting campaign activity on only a judicial campaign social media account. Since all social media platforms require a mutual consent or acknowledgement to follow on personal or professional social media accounts, there is a general understanding that those who do not want to see such material are able to easily block, hide, or ignore the postings by judicial officers and judicial candidates on those personal and professional accounts. For that reason, judicial officers and judicial candidates are expected to follow the rules for advertising and solicitation that would apply to in-person interactions, simply transferring these guidelines to social media outlets. Mirroring in-person campaign rules, judicial officers and judicial candidates may use social media to notify and advertise their own campaigns on personal or professional accounts, but solicitation and acceptance of campaign contributions are reserved only for judicial candidates’ campaign committees.