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Michigan Supreme Court Lansing, Michigan 48909 ____________________________________________________________________________________________
C hief Justice

Opinion

Maura D. Cor rigan

Justices

Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Clifford W. Taylor Robert P. Young, Jr. Stephen J. Markman

____________________________________________________________________________________________________________________________

FILED MAY 30, 2001


In re HON. JOHN M. CHMURA (AFTER REMAND),
Judge of the Thirty-Seventh District Court,
Warren, Michigan. ___________________________________________ BEFORE THE ENTIRE BENCH
MARKMAN, J.


No. 117565


This judicial disciplinary matter is before this Court
after remand to the Judicial Tenure Commission (JTC) to
determine whether certain public communications engaged in by
the respondent during a judicial election campaign violated
the Code of Judicial Conduct, Canon 7(B)(1)(d). In In re


Chmura, 461 Mich 517; 608 NW2d 31 (2000) (Chmura I), we held
that Canon 7(B)(1)(d) was facially unconstitutional. We


thereupon narrowed the language of Canon 7(B)(1)(d), holding
that a judicial candidate "should not knowingly, or with
reckless disregard, use or participate in the use of any form
of public communication that is false." We further held that,
in determining whether a judicial candidate engaged in a
public communication with reckless disregard of its truth or


falsity, the communication must be analyzed to determine if
the communication was supported by reasonable facts. Finally,
we remanded the present matter to the JTC to determine whether
respondent's conduct violated Canon 7(B)(1)(d), as narrowed.
The JTC subsequently violated determined the amended that respondent's
of Canon


communications 7(B)(1)(d).

version

Upon review, however, we respectfully disagree


with the JTC and conclude that such communications were not
false. Accordingly, we reject the JTC's recommendation to


suspend respondent from the performance of his judicial duties
without pay for ninety days. MCR 9.225.


I. This judicial

PROCEDURAL HISTORY
matter concerns certain


disciplinary

advertising disseminated by respondent's campaign committee
during his 1996 election contest for 37th District Court Judge
in Warren and Center Line. against, and In this contest, respondent ran
37 t h District Court


defeated,

Administrator/Magistrate James P. Conrad.
In April 1998, the JTC filed a complaint against


respondent alleging that four of his campaign communications
contained "false, fraudulent, deceptive, and misleading"


statements in violation of the Code of Judicial Conduct Canon
7(B)(1)(d).1 At the time the JTC filed its complaint against


The JTC's complaint initially alleged six violations
of Canon 7(B)(1)(d). However, it eventually concluded that
two of the six communications did not violate Canon
7(B)(1)(d).
2


1

respondent, Canon 7(B)(1)(d) stated in pertinent part:
(1) A candidate, including an incumbent judge,
for a judicial office:
* * *
(d) should not use or participate in the use
of any form of public communication that the
candidate knows or reasonably should know is false,
fraudulent, misleading, deceptive, or which
contains a material misrepresentation of fact or
law or omits a fact necessary to make the statement
considered as a whole not materially misleading, or
which is likely to create an unjustified
expectation about results the candidate can
achieve.
A. FINDINGS


As a result of the JTC's complaint against respondent,
this Court appointed the Honorable John P. Kirwan to serve as
master. Following an evidentiary hearing, Judge Kirwan issued
a two-part report. Kirwan determined In the first part of the report, Judge
that Canon 7(B)(1)(d) was facially
He


unconstitutional because it was overbroad and vague.

concluded that, although the state has the power to regulate
a judicial candidate's speech, the propriety of a regulation
hinges upon whether a compelling state interest exists and
whether the regulation is narrowly crafted to avoid the
infringement of constitutional rights of free speech. Judge


Kirwan determined that the state had a compelling interest in
overseeing and regulating judicial elections; however, he also
determined that the text of Canon 7(B)(1)(d) was not


sufficiently specific to clearly apprise judicial candidates


3


regarding the boundaries of what they could and could not
permissibly say. He then reasoned that, in cases involving


restrictions upon political speech, the judicial canons should
restrict only public communications that are false or made
with reckless disregard for their truth or falsity, i.e., that
Canon 7(B)(1)(d) should only prohibit public communications
made with "actual malice," citing New York Times Co v


Sullivan, 376 US 254; 84 S Ct 710; 11 L Ed 2d 686 (1964).
The second part of Judge Kirwan's report assumed the
constitutionality of Canon 7(B)(1)(d). explained that allegedly deceptive or In so assuming, he
misleading public


communications must be evaluated in the context of whether a
voter of average intelligence would have been misled by the
communication. Judge Kirwan further asserted that statements


must be "clearly" untrue and that obvious statements of
opinion did not violate Canon 7(B)(1)(d). After an


examination of the communications in question, he concluded
that they did not violate Canon 7(B)(1)(d) because an "average
intelligent voter would not have been misled by the messages
conveyed to the electorate."
Respondent and the JTC examiner both filed written
The JTC
that


objections to Judge Kirwan's report with the JTC. then conducted a hearing and thereafter

determined

respondent's campaign communications, viewed individually and
as a whole, revealed a "conscious effort to use false,


fraudulent, misleading, and deceptive statements as part and
parcel of his campaign this strategy." Court 4
The JTC therefore
from


recommended

that

suspend

respondent

performance of all judicial duties without pay for a period of
ninety days. With regard to Judge Kirwan's conclusion that


Canon 7(B)(1)(d) was overbroad, the JTC disagreed and instead
determined that Canon 7(B)(1)(d) was drafted with sufficient
precision. 7(B)(1)(d) knowledge In only [that] particular, applied a the a JTC asserted that Canon
"has


when

judicial is

candidate

communication

false,

fraudulent,


misleading, or deceptive."
Moreover, the JTC determined that Canon 7(B)(1)(d) was
not constitutionally vague. It asserted that there was no


case law holding unconstitutional a judicial canon prohibiting
"false, fraudulent, deceptive, or misleading" political speech
by judges, and that states possess the authority to regulate
misleading campaigns. statements made in the course of judicial


The JTC expressed doubt about whether any "actual


malice" standard applied to judicial disciplinary matters, but
alternatively determined that, in the event such a standard
applied, respondent nevertheless acted with "actual malice."
Respondent filed a petition with this Court to reject the
JTC's decision.


B. In violated Chmura the I, we

CHMURA I
whether of the Canon 7(B)(1)(d)
States


examined Amendment

First

United

Constitution, applicable to the states through the Fourteenth
Amendment. Gitlow v New York, 268 US 652, 666; 45 S Ct 625;


69 L Ed 1138 (1925).
We began our analysis by focusing on whether Canon
5


7(B)(1)(d)

was

unconstitutionally

overbroad

on

its

face.


Chmura I, supra at 530. Upon examination of Canon 7(B)(1)(d),
we determined that respondent properly challenged the canon on
overbreadth grounds because the canon potentially authorized
disciplinary action on the basis of the substantive content of
a candidate's speech. Because Canon 7(B)(1)(d) implicated a


First Amendment issue, we accordingly applied an exacting
scrutiny analysis to determine if the canon was sufficiently
narrowly tailored to serve compelling state interests. Id. at
531-532.
Although we identified numerous compelling interests in
support of the canon, especially the state's interest in
preserving the integrity of the judiciary and its election
process, we nevertheless determined that the canon was


insufficiently narrowly drawn. Id. at 534-535. Specifically,
we noted that Canon 7(B)(1)(d) applied to any statement that
the candidate "reasonably should know is false, fraudulent,
misleading, [or] deceptive," statements that "contain[] a
material misrepresentation of fact or law," or that "omit a
fact necessary to make the statement considered as a whole not
materially misleading," and statements that are "likely to
create an unjustified expectation about results the candidate
can achieve." Id. at 536-537. While such prohibitions were


equivalent to the types of prohibitions placed on commercial
speech, such as attorney advertising, Canon 7(B)(1)(d) does
not regulate commercial speech but instead regulates political
speech. Political speech is "`at the core of our electoral


process and of the First Amendment freedoms' . . . an area of
6


public policy where protection of robust discussion is at its
zenith." Meyer v Grant, 486 US 414, 425; 108 S Ct 1886; 100


L Ed 2d 425 (1988). Because the central purpose of the First
Amendment speech clause is to protect core political speech,
we determined that political speech may not be regulated in
the same manner that commercial speech is regulated.
[T]o require a parity of constitutional
protection for commercial and noncommercial speech
alike could invite dilution, simply by a leveling
process, of the force of the Amendment's guarantee
with respect to the latter kind of speech. [Chmura
I, supra at 538.]
Therefore, more latitude must necessarily be given for


political speech than for commercial speech. to Canon 7(B)(1)(d) and concluded that it

We then turned
covered "all


statements, not merely those statements that bear on the
impartiality of the judiciary." Id. at 539. canon reached too far. In so doing, the
under the


Our concern was that,

existing canon, judicial candidates, rather than engaging in
robust political give-and-take, might well conclude that the
safer course of action was to remain silent on controversial
issues lest the canon be inadvertently breached. Id. This


concern has been shared by the United States Supreme Court,
which has remarked in the context of a discussion of political
speech that the state cannot "`select which issues are worth
discussing or debating' . . . in the course of a political
campaign." Brown v Hartlage, 456 US 45, 60; 102 S Ct 1523; 71
The reason is that free political speech
structural protection for democracy.


L Ed 2d 732 (1982). is, in effect, a

Richmond Newspapers, Inc v Virginia, 448 US 555, 587; 100 S Ct
7


2814; 65 L Ed 2d 973 (1980) (Brennan, J., concurring).

In


sum, core political speech cannot be chilled by the subtle
deterrent effects of vague and ambiguous limitations.


Yet, clearly there is something different about judicial
campaign speech that all the courts that have dealt with this
issue have recognized. There is a tension that exists between
the regulation of judges as officers of the court, and the
regulation of judges as candidates in the political process.2
This Court, for example, is obligated to ensure that a judge
acts with the "highest standards of personal and professional
conduct" so that the administration of justice is not


compromised.

In re Bennett, 403 Mich 178, 193; 267 NW2d 914


(1978) (citing the Code of Judicial Conduct); Const 1963, art
6,

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