This opinion is overruled by the White decision and is no longer valid.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

JI-4

May 19, 1989

SYLLABUS

A campaign advertisement for a judicial candidate in which the candidate pledges a portion of judicial salary for charitable purposes, is improper.

A campaign advertisement which directly or impliedly blames incumbent judges for a decision made by state or local legislative entities is improper.

References: MCJC 7B(1)(c); Op 74.

TEXT

A campaign advertisement proposed by a judicial candidate asserts that judicial salaries are too high and that the candidate will therefore pledge a portion of his salary, if elected, to a charitable enterprise. The Committee is asked to determine whether the campaign advertisement would be ethically proper.

There is no ethical problem in a judge setting aside a portion of salary for a charitable purpose. But the elevation of that charitable donation to a campaign pledge is a violation of MCJC 7B(1)(c) which states:

"(1) A candidate, including an incumbent judge, for a 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; or misrepresent his identity, qualifications, present position, or other fact." Emphasis added.

The pledge of a donation of a portion of judicial salary to charity is a promise of conduct in office "other than the faithful and impartial performance of the duties of the office." Such a promise has long been recognized as improper. It was expressly forbidden by the ABA Canons of Judicial Ethics adopted in 1924. Canon 30 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 prejudice of the appointing or electing power."

Judicial salaries are established by a process mandated by the constitution and reflect the value and worth of the office. By establishing a salary at a relatively high level, the system opens candidacy to the rich and disadvantaged alike, attracts those in many walks of life, and encourages candidates who may have no outside source of income. It is this freedom from special interest groups that promotes fair administration of the system of justice and prevents diversion of attention to matters irrelevant to, as stated in MCJC 7B(1)(c), "the impartial performance of the duties of the office."

MCJC 7B(1)(c) also prohibits misrepresentation of fact. In Op 74, interpreting the Michigan Canons of Judicial Ethics, the Committee was concerned with (1) false and misleading statements regarding the candidate or the candidate's record, and (2) unjust attacks on incumbent judges. We stated, "it is the duty at the bar to endeavor to prevent political considerations from outweighing judicial fitness in the selection of judges . . . ."

The establishment of judicial salaries is a complex process. State law interweaves the setting of the salary on a state level with local decision made by the various county boards of commissioners. To the extent the ad makes it appear that payment of judicial salaries and expenses is determined by judges themselves instead of the state and local legislative bodies, the ad is misleading. To the extent the ad attacks incumbent judges for the size of their salaries when the judges do not set the salary, the ad is unethical.