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In re Chmura3/28/2000
Chief Justice Elizabeth A. Weaver
BEFORE THE ENTIRE BENCH
This disciplinary matter involves a challenge to the constitutionality of Canon 7(B)(1)(d) of the Code of Judicial Conduct, which governs public communications by candidates for judicial office. We hold that Canon 7(B)(1)(d) is facially unconstitutional. We therefore narrow the canon to prohibit a candidate from either knowingly or recklessly using forms of public communication that are false. Accordingly, we amend Canon 7(B)(1)(d) to provide that a candidate for judicial office: "should not knowingly, or with reckless disregard, use or participate in the use of any form of public communication that is false." Because the Judicial Tenure Commission (JTC) did not apply the narrowed canon in its initial decision, we remand to the commission for a determination whether respondent violated the narrowed canon and, if so, for a new recommendation regarding the level of discipline.
I. Factual Background and Procedural Posture
This disciplinary proceeding arises from respondent's 1996 campaign to retain his 37th District Court judgeship against a challenge by James P. Conrad, the 37th District Court administrator and magistrate. Respondent was appointed to the position in May 1996. Conrad ran against respondent in the fall election for the unexpired term.
A. The Campaign Literature
Respondent's campaign committee distributed four fliers that are the subject of these proceedings.
Exhibit 1 is a two-page flier entitled "Robin Hood?" The cover portrays former Detroit Mayor Coleman Young as a Robin Hood figure. The left page inside the flier contains a photograph of Mayor Young above the following text: "Coleman Young wanted your money, but one man stood in the way . . . Judge John Chmura." The right page contains a photograph of respondent. The text on that page states that "Coleman Young and the Lansing crowd cooked up a plan to take your tax dollars and spend them on Detroit's school districts. They called it Robin Hood-they stole from our taxpayers, our schools and our children to help prop up Coleman Young." It describes respondent's actions as "standing up to Coleman Young" and "standing up for your children." The text characterizes respondent's role in the lawsuit challenging the statutory scheme as taking "the state to court, arguing one appeal after another, until the state backed down and allowed your kids to benefit from your hard-earned tax dollars." Under the subheading "One Tough Judge," the text relates respondent's involvement in term limits and antitaxation causes before taking the bench. It further states that, as a judge, respondent has conducted himself in accordance with his prior actions by taking "one criminal after another off our streets." The flier then repeats that respondent is "always standing up for what's right." It also reiterates that respondent is "one tough judge." The back page of the flier contains a photograph of respondent with his family and lists his professional and civic affiliations.
Exhibit 3 is a one-page circular, folded in half, entitled "It didn't have to be this way." The cover contains a photograph of a partially obscured police officer in a patrol car. The inside of the flier contains a depiction of a mug shot with the caption "Murder . . . Rape . . . Dismemberment . . . Innocent Victims . . . Could Jim Conrad's Court have stopped it?" The accompanying text states that James Craig Cristini had appeared at least four times in 37th District Court during Conrad's tenure as court administrator and magistrate and had "received only a slap on the wrist" each time. It states that Cristini was "let back out for
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