Opinion 78-7

May 15, 1978

Re: Canon 7

Dear Judge:

The Committee on Standards of Conduct Governing Judges responds to your recent inquiry wherein you pose several questions as to the propriety of anticipated conduct. We note that the anticipated conduct relates to a campaign for reelection by you, an incumbent judge

By your first question you inquire whether either of the following statements may be made by you in a campaign speech or in a publication:

a. "I will make every effort to see that there is effective discipline of children who become subject to the juvenile powers of the circuit court."

b. "It would be very difficult for my opponent to improve on the job which I am presently doing."

c. "I can greatly improve on the job which is presently being done by my opponent."

Canon 7B(1)(c) provides that a candidate, including an incumbent judge, "should not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of office...". Some of the members are of the view that the Canon is unrealistic, prevents the voters from knowing the views of the candidate and should be revisited by the Supreme Court. Other members would construe the Canon as not prohibiting the anticipated statements as above quoted. However, a majority (by one) of the participating members of the Committee are of the view that a. and b. are permissible but c. is proscribed.

By your second question you inquire as to whether you are permitted to comment in any way on disputed legal issues that are not presently before you. In considering that query the Committee notes an apparent conflict between Canon 4 and 7B(1)(c). Canon 4 provides that a judge "may speak, write, lecture, teach and participate in other activities concerning the law, the legal system, and the administration of justice." He is also permitted by that Canon to appear at a public hearing before an executive or legislative body or official on matters concerning the law, he legal system of the administration of justice. In a recent opinion (opinion 78-3) the Committee opined that a member of the judiciary could properly speak out on proposed constitutional amendments and publicly support or oppose proposals of the Constitutional Revision Commission. On the other hand, the proscription appearing in Canon 7B(1)(c) appears clear. It has been suggested by one member of the Committee that Canon 4 is applicable to judicial conduct generally whereas Canon 7 is concerned with political activity, including campaigns for election or reelection. Nevertheless, while noting the apparent inconsistency in the Canons, a majority (by one) of the participating members of the Committee are of the view that the anticipated conduct is not proscribed; viz: You may so comment.

You state your third question as follows:

"If my opponent challenges me on the manner of handling a case or the result in a case that is still pending in front of me, can I reply to those charges without violating Canon 3A(6)."

Although some members of the Committee again recognize the failure of the Canons to take into account the realities of life and particularly the realities of attempting to remain in office when being challenged by an opponent, nevertheless a clear majority of the participating members are of the view that your query must be answered in the negative.

By your fourth question you query whether it is permissible for you to be aware of attorneys who have contributed time or money to your campaign through your finance committee without being in violation of Canon 7B(2). We have heretofore answered that question by our opinion 77-22. The answer, however, is in the affirmative, viz: It is permissible for you to be aware of those contributing money or time to your campaign. Indeed, it is difficult to conceive how you may comply with the election laws or be held accountable for the conduct of your campaign without being so aware.

Your fifth question is as follows:

"Must I recuse myself from any cases where an attorney has contributed time and money to my campaign where I believe that I can sit without being affected by their support and where I am not asked to disqualify myself or recuse myself by the other parties in the case."

The participating members of the Committee are unanimously of the view that that query is answered in the negative, viz: It is not necessary that a judge recuse himself in any case in which a participating attorney has contributed time or money to the judge's campaign.

Your sixth query relates, at least indirectly, to the fifth, in that you inquire whether you have any responsibility to disclose to the attorneys or parties in any case before you any contributions of time or money by an attorney. The participating members of the Committee are unanimously of the view that that question is answered in the negative.

The Committee hopes that this opinion may be of assistance in the guidance of your future conduct.

Sincerely yours,

Tyrie A. Boyer, Chairman
Committee on Standards of Conduct Governing Judges


Participating members: Judges Boyer, Carlisle, Haverfield, Hewitt, Letts, Stephenson, Turner and Samuel J. Powers, Attorney