Can a candidate for the Michigan Supreme Court criticize a divided opinion of that court during the campaign?

Plain-English summary

Issued in November 1982, the opinion addressed a candidate for the Michigan Supreme Court who asked whether it was ethically proper to criticize the majority portion of a divided opinion of that court and the legal philosophy underlying it. The Committee read MCJC 7B (a candidate's duty to maintain the dignity of the office and not to make pledges or promises of conduct other than faithful and impartial performance), Canon 30 of the former Canons of Judicial Ethics, and its earlier opinions C-74 and C-219.

The Committee concluded that the purpose of the Code of Judicial Conduct is to further the effectiveness of the judicial system, and that it saw no useful purpose in sheltering the judicial philosophies of incumbent justices from the scrutiny of the electorate. It reasoned that placing undue restraints on a candidate's criticism of Supreme Court opinions raised serious constitutional implications as well as ethical ones, and that a free and open public discussion of incumbent justices' opinions and legal philosophies would promote the effectiveness of the judicial system.

The Committee qualified the holding. Such discussion, criticism, or debate had to be fair, reasonable, and just in all instances, and could 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 could never make statements that were false or misleading, or unjustly attack an incumbent judge.

Currency note

This opinion was issued in 1982 under the Michigan Code of Judicial Conduct as it then stood. In JI-131 (February 7, 2005), the Committee reviewed this opinion sua sponte in light of Republican Party of Minnesota v. White, 536 US 765 (2002), and left it standing as valid; the same review overruled several companion campaign-speech opinions. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Could a Supreme Court candidate criticize a decision of the court they sought to join?

A: Yes. The opinion concluded that a candidate may criticize the majority portion of a divided opinion and the legal philosophy underlying it, finding no useful purpose in shielding incumbent justices' judicial philosophies from the electorate.

Q: What limits did the opinion place on that criticism?

A: Per the opinion, the criticism had to be fair, reasonable, and just, could not create an impression the candidate would act with bias or partiality toward a particular class or group, and could not be false, misleading, or an unjust attack on an incumbent judge.

Q: Is this opinion still considered valid?

A: Yes. In JI-131 (2005), the Committee reviewed C-227 under Republican Party of Minnesota v. White and left it standing, while overruling several other campaign-speech opinions.

Background and rules framework

The opinion interpreted MCJC 7B of the Michigan Code of Judicial Conduct (campaign conduct of judicial candidates, including the dignity requirement and the pledge-or-promise clause), read alongside Canon 30 of the former Canons of Judicial Ethics and the Committee's earlier opinions C-74 and C-219.

Citations and references

Code of Judicial Conduct:

• MCJC 7B (campaign conduct; dignity; pledges or promises)
• Canons of Judicial Ethics, Canon 30 (promises of conduct in office)

Other opinions cited:

• C-74 (no unjust criticism of incumbent judges; no promise of favorable decisions)
• C-219 (judicial-campaign slogans)

See also

• Mich Ethics Op. JI-131: Judicial Campaign Speech
• Mich Ethics Op. C-219: Judicial Campaign Slogans
• OH BPC Op. 89-033: Judicial Candidates Announcing Views

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=18&Type=6

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

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:

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"(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.