In Re Chmura

Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan

Opinion
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. No. 117565

___________________________________________

BEFORE THE ENTIRE BENCH

MARKMAN, J.

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 determined that respondent’s

communications violated the amended version of Canon

7(B)(1)(d). 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. PROCEDURAL HISTORY

This judicial disciplinary matter concerns certain

advertising disseminated by respondent’s campaign committee

during his 1996 election contest for 37th District Court Judge

in Warren and Center Line. In this contest, respondent ran

against, and defeated, 37 t h District Court

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

1
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

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. In the first part of the report, Judge

Kirwan determined that Canon 7(B)(1)(d) was facially

unconstitutional because it was overbroad and vague. He

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). In so assuming, he

explained that allegedly deceptive or 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

objections to Judge Kirwan’s report with the JTC. The JTC

then conducted a hearing and thereafter determined that

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 strategy.” The JTC therefore

recommended that this Court suspend respondent from

4

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. In particular, the JTC asserted that Canon

7(B)(1)(d) only applied when a judicial candidate “has

knowledge [that] a communication is 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 statements made in the course of judicial

campaigns. 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. CHMURA I

In Chmura I, we examined whether Canon 7(B)(1)(d)

violated the First Amendment of the United States

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. We then turned

to Canon 7(B)(1)(d) and concluded that it covered “all

statements, not merely those statements that bear on the

impartiality of the judiciary.” Id. at 539. In so doing, the

canon reached too far. Our concern was that, under the

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

L Ed 2d 732 (1982). The reason is that free political speech

is, in effect, a structural protection for democracy.

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, § 30. At the same time, with regard to a judge who has

assumed the role of a political candidate (a role that the

people of Michigan by their constitution have made clear that

they wish periodically to cast upon members of their

judiciary), there are demands of the democratic process that

must also be respected. The “First Amendment ‘has its fullest

and most urgent application’ to speech uttered during a

campaign for political office.” Eu v San Francisco Co

Democratic Central Comm, 489 US 214, 223; 109 S Ct 1013; 103

2
The United States Supreme Court, in Chisom v Roemer,

501 US 380, 400-401; 111 S Ct 2354; 115 L Ed 2d 348 (1991),

has recognized the tension that arises between the ideals of

judicial office and the real world of politics, in observing

that the “[f]undamental tension between the ideal character of

the judicial office and the real world of electoral politics

cannot be resolved by crediting judges with total indifference

to the popular will while simultaneously requiring them to run

for elected office.”

8

L Ed 2d 271 (1989), quoting Monitor Patriot Co v Roy, 401 US

265, 272; 91 S Ct 621; 28 L Ed 2d 35 (1971). Thus, we believe

that a rule, such as the revised Canon 7(B)(1)(d), prohibiting

a judicial candidate from only knowingly or recklessly making

a false communication, strikes a reasonable constitutional

balance between the candidate’s First Amendment rights and the

state’s interest in preserving the integrity of the judicial

system.3 Chmura I, supra at 544. Moreover, First Amendment

concerns are substantially different in a system in which the

judiciary is selected in a democratic process by the

electorate. Allowing elected judges relatively unfettered

breathing room ensures that the electorate acts as the

primary, although not exclusive, check on judicial integrity

and fitness for office.4

With this in mind, and because the existing Canon

7(B)(1)(d) was not sufficiently narrowly tailored, we revised

the canon to state 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.”

Chmura I, supra at 541. Limiting the reach of the canon, in

our judgment, ensured that judicial candidates would have the

“necessary breathing space for freedom of expression” and

3
This “balance” must be assessed in light, not only of

Canon 7(B)(1)(d), but in light of the full range of

limitations placed upon judicial conduct by the Code of

Judicial Conduct.

4
In contrast, appointed and life-tenured federal judges

have principally self-regulation as the primary effective

check with regard to their behavior in office.

9

ensured that the citizenry ultimately would sit as arbiters of

undesirable speech that falls short of being false. Id. at

542.

In Chmura I, we further held that in determining whether

a candidate recklessly disregarded the truth or falsity of a

public communication, the communication is to be analyzed by

an “objective person” standard. Id. at 542. We opined—that

application of a subjective standard was inappropriate because

a subjective test “would immunize all accusations, however

reckless or irresponsible, from censure as long as the

attorney uttering them did not actually entertain serious

doubts as to their truth . . .” Chmura I, supra at 543.

Under an “objective person” standard, a judicial candidate may

make “statements that are supported by a reasonable factual

basis, even if the candidate turns out to be mistaken.” Id.

at 544. We therefore remanded this case to the JTC for a

determination of whether respondent engaged in misconduct

under Canon 7(B)(1)(d), as modified. Id. at 545.

C. AFTER REMAND

After remand, the JTC reaffirmed its previous findings of

fact and concluded that respondent’s conduct violated Canon

7(B)(1)(d), as narrowed by this Court in Chmura I. The JTC

began its analysis by asserting that judges are held to the

“highest standards of personal and professional conduct.” In

accordance with this principle, Canon 7(B)(1)(d) places limits

on the boundaries of judicial campaign conduct.

As a threshold matter, the JTC stated that respondent, at

10

the time of the campaign, was aware of the obligations imposed

by Canon 7(B)(1)(d) and was accountable for the contents of

his campaign literature. The JTC then reviewed the four

campaign communications in question and determined that,

individually and collectively, they revealed a “conscious

effort [by respondent] to use false statements and to use them

with reckless disregard for their truth or falsity as part and

parcel of his campaign strategy.” According to the JTC,

respondent’s strategy was to “wage a ‘brass knuckles’

campaign” to retain judicial office because respondent

“regard[ed] himself as an outsider faced with a hostile

environment at the 37th District Court.” Offended by this, the

JTC concluded that respondent’s conduct constituted misconduct

in office, with such conduct being clearly prejudicial to the

administration of justice. In so concluding, the JTC

recommended that this Court suspend respondent from the

performance of all judicial duties without pay for ninety

days. Respondent again petitioned this Court to reject the

JTC’s decision and recommendation.

II. APPELLATE STANDARDS

A. STANDARD OF REVIEW

We review the JTC’s decision and recommendation de novo.

In re Mikesell, 396 Mich 517, 520; 243 NW2d 86 (1976), citing

In re Somers, 384 Mich 320, 323; 182 NW2d 341 (1971). Thus,

it is necessary to review the record in the present case in

its entirety to determine whether respondent’s public

11

communications violated Canon 7(B)(1)(d).5

B. BURDEN AND STANDARD OF PROOF

The language used in Canon 7(B)(1)(d) has its roots in

defamation law. New York Times Co, supra. Thus, we examine

defamation case law for guidance in analyzing whether a

judicial candidate knowingly, or with reckless disregard, has

used or participated in the use of any form of public

communication that is false.

As a preliminary matter, however, it is necessary to

identify the applicable burden and standard of proof. At

early common law, the defendant bore the burden of proving the

truthfulness of an allegedly defamatory statement.

Philadelphia Newspapers, Inc v Hepps, 475 US 767, 776; 106 S

Ct 1558; 89 L Ed 2d 783 (1986). However, this common-law rule

came to be viewed as overly restrictive of free speech.

A rule compelling the critic of official

conduct to guarantee the truth of all his factual

assertions—and to do so on pain of libel judgments

virtually unlimited in amount—leads to a comparable

“self-censorship.” Allowance of the defense of

truth, with the burden of proving it on the

defendant, does not mean that only false speech

will be deterred. . . . Under such a rule, would-be

critics of official conduct may be deterred from

5
Moreover, a de novo standard of review is in accord

with United States Supreme Court precedent that holds that in

cases involving freedom of expression issues, appellate courts

have “an obligation to ‘make an independent examination of the

whole record’ in order to ensure that ‘the [lower court’s]

judgment does not constitute a forbidden intrusion on the

field of free expression.’” Bose Corp v Consumers Union of

United States, Inc, 466 US 485, 499; 104 S Ct 1949; 80 L Ed 2d

502 (1984), quoting New York Times Co, supra at 284-286; see

also Rouch v Enquirer & News of Battle Creek Michigan (After

Remand), 440 Mich 238; 487 NW2d 205 (1992).

12

 voicing their criticism, even though it is believed

to be true and even though it is in fact true,

because of doubt whether it can be proved in court

or fear of the expense of having to do so. . . .

The rule thus dampens the vigor and limits the

variety of public debate. [New York Times, supra at

279.]

Thus, the common-law rule requiring a defendant to prove the

truthfulness of his statements was superseded by the

constitutional rule (of the First Amendment) that the

plaintiff, in a defamation action, must show the falsity of a

statement. Philadelphia Newspapers, Inc, supra at 776; New

York Times Co, supra at 279-280. Moreover, the plaintiff was

required to show, by clear and convincing evidence, that the

defendant acted with “actual malice” when he related the

defamatory falsehood. See, e.g., Harte-Hanks Communications,

Inc v Connaughton, 491 US 657, 686; 109 S Ct 2678; 105 L Ed 2d

562 (1989); Bose Corp v Consumers Union of United States, Inc,

466 US 485, 511; 104 S CT 1949; 80 L Ed 2d 502 (1984).

“Judges, as expositors of the Constitution, have a duty to

independently decide whether the evidence in the record is

sufficient to cross the constitutional threshold that bars the

entry of any judgment that is not supported by clear and

convincing proof of `actual malice’.” Harte-Hanks

Communications, Inc, supra at 686, quoting Bose Corp, supra at

511.

In light of this, we are persuaded that, in cases

involving a violation of Canon 7(B)(1)(d), the JTC, as the

moving party, has the burden of proving, by clear and

convincing evidence, that the communications in question are

proscribed by the canon. Clear and convincing evidence is

13

evidence that “produce[s] in the mind of the trier of fact a

firm belief or conviction as to the truth of the allegations

sought to be established, evidence so clear, direct, and

weighty and convincing as to enable [the factfinder] to come

to a clear conviction, without hesitancy, of the truth of the

precise facts in issue.” In re Martin, 450 Mich 204, 227; 538

NW2d 399 (1995), quoting In re Jobes, 108 NJ 394, 407-408; 529

A2d 434 (1987).

III. “FALSE ” COMMUNICATIONS

When analyzing whether a judicial candidate has violated

Canon 7(B)(1)(d), it is necessary that the communication be

false.6 Chmura, supra at 541. However, before a judicial

candidate’s public communication is tested for falsity, the

communication at issue must involve objectively factual

matters. Milkovich v Lorain Journal Co, 497 US 1, 18-19; 110

S Ct 2695; 111 L Ed 2d 1 (1990). Speech that can reasonably

be interpreted as communicating “rhetorical hyperbole,”

“parody,” or “vigorous epithet” is constitutionally protected.

Id. at 17. Similarly, a statement of opinion is protected as

long as the opinion “does not contain a provably false factual

connotation . . . ” Id. at 20. We are mindful that in

6
It is important to highlight that Canon 7(B)(1)(d)

proscribes conveying a false “communication.” Conveying a

false “communication” may not always be the same thing as

conveying a false “statement.” A “communication” implies the

broader act of imparting ideas or information, while a

“statement” may be viewed as a more discrete component of such

communication. Generally, but not always, a communication

will be comprised of several statements. The point of inquiry

under Canon 7(B)(1)(d) will always be on the “communication.”

14

protecting hyperbole, parody, epithet, and expressions of

opinion, some judicial candidates may inevitably engage in

“vehement, caustic, and sometimes unpleasantly sharp attacks

on government and public officials.” New York Times Co, supra

at 270. As a result of these attacks, “political speech by

its nature will sometimes have unpalatable consequences.”

McIntyre v Ohio Elections Comm, 514 US 334, 357; 115 S Ct

1511; 131 L Ed 2d 426 (1995). Indeed, as is arguably true in

the present case, even potentially misleading or distorting

statements may be protected.7 However, we believe that these

rules are necessary in light of our “profound national

commitment to the principle that debate [by judicial

candidates] on public issues should be uninhibited, robust,

and wide-open . . . ” New York Times Co, supra at 270.8 Once

it has been determined that a communication contains

objectively factual matters, those matters must then be tested

to determine whether they are true or false.

The concept of falsity was discussed by the United States

Supreme Court in Masson v New Yorker Magazine, Inc, 501 US

7
Requiring candidates to avoid “misleading” the

electorate would hinder protected speech as candidates sought

to avoid, perhaps inadvertently, violating this broad rule.

Butler v Alabama Judicial Inquiry Comm, 111 F Supp 2d 1224,

1237 (MD Ala, 2000).

8
It is important to note that political candidates who

are faced with potentially misleading or distorted statements

from their opponents may always counterbalance any negative

effect with more speech in order to clarify potentially unfair

or misleading statements or to demonstrate the nature of their

opponent’s conduct. In fact, in this case, the record

indicates that James Conrad did vigorously respond to

respondent’s advertisements by asserting that respondent’s

campaign was “vicious” and “full of lies.”

15

496; 111 S Ct 2419; 115 L Ed 2d 447 (1991). See also

Milkovich, supra. “The common law of libel takes but one

approach to the question of falsity, regardless of the form of

the communication. . . . It overlooks minor inaccuracies and

concentrates upon substantial truth.” Masson, supra at 516,

citing Restatement Torts, 2d, § 563, at 163, comment C (1977);

Prosser & Keeton, Torts (5th ed), § 111, at 776. As long as

“the substance, the gist, the sting” of the communication is

true, minor inaccuracies do not amount to falsity. Masson,

supra at 517. In other words, the communication “is not

considered false unless it would have a different effect on

the mind of the reader from that which the pleaded truth would

have produced.” Id. This test has been commonly referred to

as the “substantial truth doctrine.” Rouch v Enquirer & News

of Battle Creek Michigan (After Remand), 440 Mich 238, 260;

487 NW2d 205 (1992). This Court applied this doctrine in

Rouch, asserting that the constitutional requirement for

testing falsity mirrors Michigan’s common law. Id. As the

Court held, “The common law has never required defendants to

prove that a publication is literally and absolutely accurate

in every minute detail.” Id. at 258.

The “substantial truth doctrine” has in substance, if not

in name, been applied to cases in which the defendant gets the

details or particulars correct but conveys a potentially false

communication. See, e.g., Locricchio v Evening News Ass’n 438

Mich 84, 123-127; 476 NW2d 112 (1991)(discussing defamation by

implication); Hawkins v Mercy Health Services, Inc 230 Mich

App 315; 583 NW2d 725 (1998); see also Prosser Torts (5th ed),

16

§ 116, at 117 (1988 supp). However, we believe that because

a judicial candidate’s communication could be interpreted in

“numerous, nuanced ways, a great deal of uncertainty would

arise as to the message conveyed.” See, e.g., Auvil v CBS “60

Minutes,” 67 F3d 816, 822 (CA 9, 1995)(discussing uncertainty

that can arise regarding messages conveyed by broadcast

media). This type of uncertainty would often make it

difficult for judicial candidates to predict whether their

communications would be encompassed within the proscriptions

of Canon 7(B)(1)(d). Such uncertainty, as we have discussed

earlier in this opinion, “raises the spectre of a chilling

effect on speech.” Id.

Accordingly, we conclude that in analyzing whether a

judicial candidate has violated Canon 7(B)(1)(d), the public

communication must be analyzed to determine whether the

statements communicated are literally true. If so, the

judicial candidate will not be in violation of Canon

7(B)(1)(d). However, if the communication conveys an

inaccuracy, the communication as a whole must be analyzed to

determine whether the “the substance, the gist, the sting” of

the communication is true despite the inaccuracy. In other

words, we must decide whether the communication is

substantially true. If so, the judicial candidate will not be

in violation of the canon. However, if “the substance, the

gist, the sting” of the communication is false, then it can be

said that the judicial candidate “used or participated in the

use of a false communication.” Once this has been determined,

17

the inquiry then turns to whether a judicial candidate’s

communication was made knowingly or with reckless disregard.

Chmura I, supra at 544. If it was, the candidate has acted in

violation of Canon 7(B)(1)(d).

IV. APPLICATION

Although legitimate questions might be raised about the

seemliness of some of respondent’s communications, it is

ultimately not our task to pass upon such matters because we

have no greater competence in this regard than does the

citizenry as a whole. Neither we, nor the JTC, are arbiters

of propriety. Rather, that assignment belongs to “We the

People.” This Court’s responsibility is the more narrow one

of determining whether respondent’s campaign communications

violated Canon 7(B)(1)(d). In doing so, we apply the

aforementioned principles of falsity to determine whether

respondent’s public communications were clearly shown by the

JTC to be knowingly false or used with reckless disregard as

to their truth or falsity.

Because the four campaign communications at issue were

sufficiently described by this Court in Chmura I, we quote, in

turn, their descriptions before our discussion on each.

A. EXHIBIT 1

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

18

 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

anti-taxation 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.

[Chmura I, supra at 520].

In its decision, the JTC asserted that respondent

inaccurately characterized Detroit Mayor Coleman Young’s role

in the property tax base sharing (PTBS) legislation9–

legislation that respondent described as “Robin Hood”

legislation. In particular, the JTC stated that there was “no

credible evidence that Coleman Young, with or without the help

of others from Lansing, planned, drafted or even actively

supported the measure.” However, in citing this lack of

evidence on the respondent’s part, the JTC improperly shifted

the burden of proof to respondent on this issue. The burden

of proof here does not lie with respondent but with the JTC.

They failed to present clear and convincing evidence that

9
MCL 380.751 et seq.; MSA 15.4751 et seq., repealed by

1993 PA 175.

19

proved the falsity of the communication. That is, they did

not make any showing that Young did not support the PTBS

legislation.10 See, e.g., Harte-Hanks Communication Inc, supra

at 686.

Next, the JTC determined that exhibit 1 falsely

communicated that respondent had “prevented Coleman Young and

others from taking tax . . . [revenue] from Warren and Center

Line property owners to spend on the Detroit school system.”11

The JTC again referenced the PTBS legislation and explained

that, under the provisions of the act, tax revenue from the

Warren and Center Line School Districts could not be directly

shifted to the Detroit School District.

Further, on the basis of these two findings—that Warren

and Center Line tax revenue could not, in the JTC’s view, be

directly shifted to the city of Detroit, and that there was no

proof that Coleman Young was involved with the legislation—the

10
The propriety of placing the burden of proof upon the

JTC is not a mere technicality, but rather is underscored by

the specific matter in controversy here. It is not at all

obvious to this Court why the mayor of the largest city in

Michigan would not have been involved in encouraging the

enactment of legislation resulting in the transfer of

substantial amounts of tax revenues into that city in order to

bolster school finances. Upon a closer review, it may well be

shown that neither the mayor nor his representatives or

lobbyists, either directly or indirectly, communicated the

views of the city to either the Governor or to members of the

Legislature; however, it would hardly be surprising if such a

review demonstrated the contrary. In any event, this is a

matter for the JTC to prove, not for the respondent to

disprove.

11
The JTC acknowledges that respondent, as a private

attorney, challenged the constitutionality of the PTBS

legislation. The JTC contends that it is respondent’s

statements about the means by which the legislation shifted

money from one school district to another that was false.

20

JTC concluded that the brochure was an effort on the part of

respondent to appeal to “racist attitudes among the

electorate.” It noted, however, that the use of the allegedly

racist advertisement, alone, did not fall within the

prohibitions of Canon 7(B)(1)(d), but concluded that because

it was “coupled with the false statements, the ad is

convincing and clear evidence of the [r]espondent’s reckless

disregard for the truth.”

Contrary to the JTC, we find that respondent did not

“falsely” communicate that he prevented Coleman Young and

others from taking tax dollars from the cities of Warren and

Center Line to spend on the Detroit school system. In 1991,

the PTBS legislation was enacted by the Michigan Legislature

in an effort to address disparities in school spending that

resulted from a variance in the property tax base in Michigan

school districts. MCL 380.751 et seq.; MSA 15.4751 et seq.

To accomplish this, subsections 751(1)(h) and (i) classified

state school districts into two regions, region 1 and region

2. Within each region, a school district would be classified

as an “out-of-formula” or an “in-formula” school district.

MCL 380.751(1)(e)(f); MSA 15.4751(1)(e)(f). The “out-of­

formula” school districts were those that generally had higher

property tax revenues, while the “in-formula” school districts

were those that generally had lower property tax revenues.

Because the “out-of-formula” districts typically generated

more tax revenues, § 752 of the legislation required that such

school districts share a portion of their tax revenues with

the “in-formula” school districts in their own regions. Under

21

the legislation, the Warren and Center Line School Districts

were located in region 1 and were determined to be “out-of­

formula” school districts. The Detroit School District, on

the other hand, was located in region 2 and was an “in­

formula” school district. Thus, at first blush, it appears

that Warren’s and Center Line’s tax revenues would be shared

with “in-formula” school districts within region 1, which did

not include the Detroit School District. However, subsection

752(3) further provided that in the event that

the department determines that the total amount of

aid per in-formula district pupil paid under

subsection (2)(a) and (b) in a region in a state

fiscal year varied by more than 10% from the state

average amount paid per in-formula district pupil

paid under subsection (2)(a) and (b) in that state

fiscal year, the department shall submit a report

[to the legislature and the governor] . . . Unless

the legislature enacts legislation . . . that

redefines the boundaries of each region to reduce

the variance to 10% or less . . . each out-of­
formula district shall make payments to the chief

financial officer . . . and that individual shall

make payments to each in-formula district as if the

entire state were a single region . . .

On the basis of the above provision, it is clear that the

PTBS legislation clearly contemplated that tax revenue

potentially could be shifted directly from the Warren and

Center Line School Districts to the Detroit School District.

The fact that Warren’s and Center Line’s tax revenues would

not have initially been transferred directly to the city of

Detroit does not make respondent’s communication false, given

the overall legislative scheme of the act. Accordingly,

respondent’s claim that he “prevented” Coleman Young and

others from taking tax revenue from Warren and Center Line

22

property owners is not false.12

We further believe that the JTC improperly found, as

“racist,” the Robin Hood caricature, which had, as its head,

a photograph of Coleman Young. Instead, we conclude that the

mayor’s image was used merely as a well-understood symbol for

the city of Detroit and its school district. Further, we

believe that the use of Coleman Young’s photograph can be seen

as an effort to convey a“suburban” versus “urban” tension

implicated by the PTBS legislation. Even assuming that the

photograph evinced some form of subliminal racial

expression—an assumption that we do not necessarily accept—

such an expression would not fall within the proscription of

Canon 7(B)(1)(d).13 Milkovich, supra, at 13.

12
Because of the specific language of subsection 752(3),

it is unnecessary to determine whether respondent’s statements

might still fall outside the scope of Canon 7(B)(1)(d) on the

ground that the details of the administrative arrangements

under the PTBS statute should not obscure the larger truth

that tax revenues are flowing out of district A (Warren and

Center Line) and into district B (Detroit). Presumably, if

this inflow and outflow did not balance in any of the

legislatively created “regions,” such regions would be

adjusted in order that this occur. By this view, the gravamen

of the statute is that it is essentially a “zero-sum” game in

which benefits derived from one district must necessarily be

compensated for by costs incurred by another.

13
This, of course, does not mean that expressions of

racial bias are to be tolerated among members of the

judiciary. There can be little doubt that expressions or

attitudes of racism implicate the “fair administration of

justice” and are proscribed by Canon 2 of the Code of Judicial

Conduct, which, in pertinent part, states:

(B) A judge should respect and observe the

law. At all times, the conduct and manner of a

judge should promote public confidence in the

integrity and impartiality of the judiciary.

Without regard to a person’s race, gender, or other

protected personal characteristic, a judge should

23

 Lastly, the JTC contends that respondent’s use of the

word “stole” in exhibit 1 falsely conveyed to the electorate

criminal behavior on the part of Coleman Young. Again, we

respectfully disagree. The word “stole” in respondent’s

communication did not reasonably communicate a statement of

fact concerning criminal activity. Instead, it was merely a

colloquial reference unquestionably, in our judgment,

understood by readers in the context of a political brochure.

It was, in the language of Milkovich, supra at 17-20,

“rhetorical hyperbole.” Viewing the word in context suggests

that respondent chose the word to summarize the effect of the

PTBS legislation. The task was obviously to convey the view

that this legislation would redistribute school funds from one

district to another. This is the language of the rough-and­
tumble world of politics. It is core political speech. It is

consumed by an often skeptical and wary electorate and it does

not, in our judgment, fairly implicate the proscriptions set

forth in Canon 7(B)(1)(d).14

treat every person fairly, with courtesy and

respect.

* * *

(E) . . . A judge should be particularly

cautious with regard to membership activities that

discriminate, or appear to discriminate, on the

basis of race, gender, or other protected personal

characteristic.

14
The dissenting opinion finds that, although the word

“stole” communicated mere hyperbole, “it nonetheless refers to

a completed act, not a potential act that depended on a chain

of contingencies . . . .” Slip Op at 2-3. For the reasons

that we have set forth, we respectfully disagree. We see

nothing in the tense used by respondent that implicates the

24

 Because exhibit 1 does not convey a false communication,

it is unnecessary to determine whether respondent’s

communication was supported by reasonable facts. Chmura I,

supra at 544.

B. EXHIBIT 3

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 only $100" after being charged with

assault and battery. The flier further states that

“after being released on a second Assault and

Battery charge, Cristini went on a rampage of

murder and mayhem,” resulting in “[i]nnocent

victims, raped, murdered and dismembered.” The

text concludes with the following: “That’s what

happens when you put bureaucrats in charge of a

court. Jim Conrad . . . He’s just a bureaucrat.”

The back of the circular contains the text “End the

Fear.” [Chmura I, supra at 520-521]

With regard to exhibit 3, the JTC determined that

respondent’s communication swept too broadly by falsely

attaching blame to James Conrad for certain decisions made by

37th District Court judges—specifically, that Conrad was

responsible for releasing criminal defendant James Craig

Cristini numerous times after imposing only minor punishments.

Although we agree with the JTC that this statement could be

interpreted as communicating that Conrad was specifically

canon at issue.

25

responsible (when he was not) for the subsequent crimes

committed by Cristini, the brochure nevertheless is also

subject to a more benign interpretation.15

It is often the case that affiliation is described by a

possessive construction. In describing an institution as

“John Doe’s,” one interpretation might be that John Doe is in

charge of, and responsible for, that institution; an

alternative interpretation might be that John Doe is merely

associated in some manner with the institution. The JTC

determined that the rhetorical question “could Jim Conrad’s

Court have stopped it?” could only mean that Conrad himself

was the individual responsible for the judicial decisions made

in the Cristini matter. We agree that such a reference would

be false. However, an alternative interpretation is that

respondent’s rhetoric was merely to communicate Conrad’s

significant association with a court which, in respondent’s

judgment, had conducted itself irresponsibly in its dealings

with Cristini. As court administrator, Conrad had significant

administrative duties within the court and was an integral

part of its day-to-day operations. Indeed, respondent’s

political message was, in essence, a response to what was the

primary political thrust of the Conrad candidacy, namely, that

Conrad as court administrator and magistrate, had significant

15
Whether respondent specifically intended to mislead or

not when he made this communication is not dispositive to the

analysis under Canon 7(B)(1)(d). The canon does not proscribe

a judicial candidate’s use of a communication that is merely

misleading. Chmura I, supra at 541. Rather, the canon only

proscribes a judicial candidate’s use or participation in the

use of a communication that can only be viewed as false.

26

administrative and quasi-judicial duties within the 37th

District Court that would recommend his promotion to judge.16

By this understanding, it was not altogether inaccurate to

refer to the court as “Jim Conrad’s Court.” As it is the

case, as earlier discussed, when a statement is found to have

a potentially non-false interpretation, the inquiry under

Canon 7(B)(1)(d) must end.

Next, the advertisement stated “James Craig Cristini

appeared in the 37th District Court at least 4 times while Jim

Conrad was Court Administrator and Magistrate. Each time, he

received only a slap on the wrist.” A review of the evidence

showed that at the time of the 1996 election, Cristini did

appear in the 37th District Court numerous times on various

misdemeanor and felony charges including disturbing the public

peace, disorderly intoxication, and assault and battery

charges. When Cristini’s disturbance of the public peace and

16
Conrad’s literature primarily focused on the

substantial length of time that he had been a magistrate, as

well as on his record in the area of law enforcement. To

emphasize this latter record, Conrad highlighted numerous

cases where a defendant’s bond had been set by him at $50,000

or higher. For example, one advertisement identified six

separate such instances and stated in part “$100,000 cash bond

on a person arrested for assault with intention to murder;”

“$250,000 cash bond on a person arrested with intention to rob

with a firearm;” “$50,000 cash bond on a person arrested for

assault with intention to murder;” “$100,000 cash bond on a

person arrested for armed robbery;” “$100,000 cash bond on a

person arrested for delivery of heroin, assault with deadly

weapon and fleeing police; “$100,000 cash bond on a person

arrested for operating under the influence of liquor causing

death and incapacitation injury.” On the basis of such

advertising, it was not altogether unexpected that respondent

would reply with communications that characterized Conrad’s

close association with the district court in a less positive

light.

27

disorderly intoxication charges proceeded to trial, the court

approved the dismissal of the former charge in exchange for

Cristini’s plea of guilty to the latter charge. Cristini was

sentenced to seventy-five days in jail and $200 in costs and

fines. With regard to Cristini’s assault and battery charge,

his bond was set at $100. Additionally, the statement

accurately communicated that James Conrad was a court

administrator and magistrate when Cristini appeared in the 37th

District Court; the statement did not indicate that Cristini

personally appeared before Conrad. In light of this history,

we find that the communication did not relate a false

statement of fact.

The JTC also found that respondent improperly referenced

that Cristini was “let back out for only $100" by Conrad after

Cristini was charged with assault and battery. According to

the JTC, Conrad did not preside over this case, and Cristini

was released pursuant to an interim bond. Unlike the JTC, we

find that this communication did not contain a false statement

of fact. A review of the 37th District Court Criminal Case

Inquiry revealed that on September 5, 1993, Cristini was

charged with assault and battery, and a $100 bond was set.

The fact that the advertisement failed to set forth the

particulars of the bond is of no consequence as long as the

statement was literally true. Further, the advertisement does

not specifically name Conrad as the person who released

Cristini. Thus, we conclude that this communication does not

make a false statement of fact. Masson, supra at 496.

Because exhibit 3 does not convey a false communication,

28

it is unnecessary to determine whether respondent’s

communication was supported by reasonable facts. Chmura I,

supra at 544.

C. EXHIBIT 4

Exhibit 4 is a two-page flier entitled “We

shouldn’t have to worry about sexual harassment at

work or violence at home!” The cover of the flier

contains a photograph of a young woman sitting at a

typewriter with a male hand touching her shoulder

and a photo of a [bruised] young woman with a young

girl. The upper half of the inside of the flier is

captioned “Magistrate Jim Conrad is facing trial

for sexual harassment of a female court employee!”

It includes a photograph of Conrad with a woman

identified as a “former court reporter” leaning on

his shoulder. The woman’s face is obscured. Also

included is a reduced image of a pleading described

as a “Sexual Harassment complaint filed against

Magistrate Jim Conrad.” The text states “Conrad

tries to dodge trial by claiming ‘government

immunity.’” It explains in smaller type that Conrad

“is accused of intimidating and firing a female

court employee because she complained of being

sexually harassed on the job. Papers filed with

the court by Conrad’s lawyers say that he can’t be

tried because, as Magistrate, he has governmental

immunity!” It further states that the complaint

had cost Warren and Center Line taxpayers

“thousands of tax $$$ to defend! Now, he wants

your vote for District Court judge!”

The bottom half of the inside of the flier is

entitled “Judge John Chmura . . . . One Tough

Judge” and contains two photographs of him on the

bench, one of which shows him exchanging papers

with Macomb County Prosecutor Carl Marlinga. The

text states “Tough on domestic violence and

stalkers!” It explains that respondent is “tough

on criminals who prey on women” and “won’t stand

for acts of domestic violence or allow stalkers to

run wild.” It further states that respondent

“won’t tolerate sexual harassment of court

employees,” explaining that respondent “thinks your

peace of mind comes first!” The bottom half of the

flier also includes a favorable quote about

respondent from Prosecutor Marlinga. The back of

the flier contains a photograph of respondent with

his family, a list of professional and civic

affiliations, and a list of ten endorsers. The

29

 text also describes respondent as “one tough

judge.” [Chmura I, supra at 521-522]

With regard to exhibit 4, the JTC concluded that

respondent falsely communicated that James Conrad was charged

with sexual harassment. The JTC noted that at the time the

communication was disseminated, the sexual harassment charge

was no longer viable because it was dismissed pursuant to a

summary disposition hearing. We respectfully disagree. On

May 28, 1993, Carrie Meyer, the sexual harassment complainant,

filed a complaint against James Conrad and others alleging,

among other things, sex discrimination and sexual harassment.

And while it is true that the sexual harassment count was

eventually dismissed pursuant to summary disposition, other

claims remained that included the sexual harassment

allegations. One such claim was Meyer’s retaliatory discharge

claim. A review of the complaint revealed that this claim

incorporated by reference the pertinent paragraphs of the

sexual harassment claim, in essence, paragraphs 28-32.

Paragraphs 28-32 asserted that Conrad owed a duty not to

discriminate against the complainant because of her sex and

that, despite this duty, Conrad had engaged in numerous

instances of sex discrimination and harassment.

Next, the JTC determined that respondent falsely conveyed

the nature of the sexual harassment engaged in by Conrad. The

JTC determined that, when one viewed the totality of the

advertisement, including the pictures and captions, the

advertisement falsely communicated that Conrad was facing

potential sexual harassment charges involving unwanted

30

physical contact. We again respectfully disagree. The front

page of exhibit 4 stated that the Warren and Center Line

electorate “shouldn’t have to worry about sexual harassment at

work and violence at home.” This text was accompanied by two

photographs. One photograph shows a young woman sitting at a

typewriter with a male hand touching her shoulder and the

other photograph shows a bruised woman with a young child. We

believe that the photographs were used as a visual tool to

convey to a layman respondent’s positions against sexual

harassment and domestic violence, and could not lead a

reasonable person to conclude that the circumstances shown in

the sexual harassment photograph were reflective of the

circumstances of James Conrad’s particular sexual harassment

suit.

The JTC next found that exhibit 4 falsely communicated

that James Conrad was accused of firing Meyer after she

complained about the sexual harassment at work. The JTC found

that Conrad, as a court administrator and magistrate,

possessed no authority to fire court personnel and instead

found that Meyer was fired by the 37th District Court judges.

Although it is true that Conrad, as a court administrator and

magistrate, did not have the authority to hire or fire court

employees, Meyer, in her complaint, asserted that Conrad did

fire her. In pertinent part, the complainant asserted that

defendants, including Conrad, had discriminated against her

and that, on the basis of this discrimination, she suffered

numerous injuries including loss of employment. Therefore,

respondent did not inaccurately communicate that James Conrad

31

was accused of firing a female court employee.

Finally, the JTC found that respondent improperly used a

photograph of Lisa Burgor, a freelance court reporter, to

falsely represent Meyer. Moreover, they concluded that the

caption under Burgor’s photograph falsely stated that she was

a former court reporter. The photograph at issue showed

Conrad with a woman whose face is concealed. Below the

photograph, it reads: “Magistrate Jim Conrad with a former

court reporter.” This is not false. Lisa Burgor testified

that she was a free-lance court reporter at the time the

photograph was taken and that she had appeared in the 37th

District Court numerous times. Nowhere does respondent claim

that the individual in the photo was complainant. Further, we

find that the reference to Burgor as a former court reporter

is not false. As stated above, Burgor testified that she had

appeared in the 37th District Court numerous times as a free­
lance court reporter. Thus, respondent correctly described

the woman as “former court reporter.”

Because exhibit 4 does not convey a false communication,

it is unnecessary to determine whether respondent’s

communication was supported by reasonable facts. Chmura I,

supra at 544.

D. EXHIBIT 5

Exhibit 5 is a one-page circular, folded in

half, that includes a drawing on its cover of a man

leaving a courthouse asking the question “Where is

my Courtroom?” The left half of the inside of the

flier contains the “answer”: “Jim Conrad is not a

Judge, he has no courtroom.”

The right half of the inside of the flier is

captioned “So what has Jim Conrad been doing as

32

 Court Administrator for the past 7 years?” The

text below the question states “Murders and

Stalkers . . . , back on the streets . . . commit

crimes again . . .” It explains: “In case after

case . . . Murderer James Craig Cristini . . .

Stalker Edward Lightfoot . . . Hardened, violent

criminals appeared in the 37th District Court again

and again only to be let out to commit more

crimes.” Under the heading “Corruption and

Inefficiency,” the flier states that federal

investigators were looking into charges that the

37th District Court Probation Department “was

running a scam under which court employees were

receiving kickbacks, making big money off people’s

misery.”

Under the heading “Sued for Sexual

Harassment,” the text states that “[w]hen court

employee Carrie Meyer complained about the way she

was treated at work, Jim Conrad threatened her job,

demoted her, and harassed her.” It further states

that “Conrad’s actions have resulted in a major

sexual harassment lawsuit which has cost Warren and

Center Line thousands to defend. But what’s

Conrad’s defense? That he shouldn’t be prosecuted

because of government immunity.” The text

concludes with the statement “That’s what happens

when you put bureaucrats in charge of a court. Jim

Conrad. . . He’s just a bureaucrat.” The text on

the back of the flier states “No More Bureaucrats.”

[Chmura I, supra, at 522-523]

The JTC concluded that exhibit 5 falsely suggested that

James Conrad was responsible for felonies committed by

criminal defendants James Craig Cristini and Edward Lightfoot

after these two individuals had appeared in the 37th District

Court on misdemeanor charges, when in fact Conrad had limited

involvement with each of these individuals. The

communication, in pertinent part, stated that “[i]n case after

case . . . Murderer James Craig Cristini . . . Stalker Edward

Lightfoot . . . Hardened, violent criminals appeared in the

37th District Court again and again only to be let out to

commit more crimes.” As discussed previously in exhibit 3,

33

the evidence demonstrated that Cristini was charged and

convicted of numerous misdemeanors and felonies and was

subsequently released after arguably modest penalties were

imposed upon him. Court documents then identify that, shortly

thereafter, Cristini was charged with open murder.

Additionally, court documents indicate that Edward Lightfoot

had been charged with making a telephone call with the intent

to “terrorize, frighten, intimidate, threaten, harass, molest,

annoy, or disturb the peace and quiet” of a complainant in

violation of MCL 750.540e(1)(e); MSA 28.808(5). Bond was set

by James Conrad in the amount of $3,500. At the time

Lightfoot’s bond was set for $3,500, he had been previously

charged with several misdemeanors in the 37th District Court.

In light of this record, we find that respondent’s statement

that Cristini and Lightfoot “appeared in the 37th District

Court again and again only to be let out to commit more

crimes” was not false.

The JTC also contends that exhibit 5 falsely communicated

that numerous 37th District Court probation department

employees were being investigated for allegedly illegal

activities. Specifically, the JTC determined that the

investigation extended to only one employee and not to

numerous employees as stated in the advertisement. In

pertinent part, the communication states that “[f]ederal

officers are looking into charges that the 37th District Court

Probation department was running a scam under which court

employees were receiving kickbacks, making big money off

people’s misery.” A review of the record shows that the

34

statement was inaccurate. The record reveals that the

investigation of the 37th District Court Probation Department

involved a single individual, Orba Underwood. However, this

inaccuracy does make the substance of the communication false.

Masson, supra at 517. The “substance” or “gist” of the

statement was to communicate the fact of the investigation of

the 37th District Court probation department, including the

allegedly illegal activities that had occurred within the

department. The fact that the communication inaccurately

stated that the investigation involved multiple employees does

not, in our judgment, alter the substance of what respondent

communicated. We believe that if the communication had

correctly identified that the investigation involved only one

individual, the effect on the mind of the reader would be no

different—the “gist” of the communication would still be that

the probation department was being investigated for allegedly

illegal activities. Thus, the communication is not false for

purposes of Canon 7(B)(1)(d).

Finally, the JTC expressed that the statement concerning

the probation investigation falsely held Conrad responsible

for the allegedly illegal activities of the probation

department. We disagree. Nowhere does the communication cite

James Conrad as the person responsible for the allegedly

illegal activity. The advertisement merely highlighted that

there was an investigation of the department, and set forth

the specific allegations, in essence, that illegal “kickbacks”

were involved.

Because exhibit 5 does not convey a false communication,

35

it is unnecessary to determine whether respondent’s

communication was supported by reasonable facts. Chmura I,

supra at 544.

V. CONCLUSION

The Code of Judicial Conduct, Canon 7 (B)(1)(d), states

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.” When analyzing

whether a judicial candidate has violated the canon, we

conclude that the communication at issue must have conveyed an

objectively factual matter. Thus, speech that can be

reasonably interpreted as communicating hyperbole, epithet, or

parody is protected, at least under Canon 7(B)(1)(d).

Similarly, an expression of opinion is protected under the

canon as long as it does not contain provably false factual

connotations. If the communication at issue sets forth

objectively factual matters, the communication must then be

analyzed to determine whether the statements communicated are

literally true. If they are, the judicial candidate will not

be in violation of Canon 7(B)(1)(d). However, if the public

communication conveys an inaccurate statement, the

communication, as a whole, must be analyzed to determine

whether the “the substance, the gist, the sting” of the

communication is true despite such inaccuracy. Once it has

been determined that a judicial candidate has, in fact, made

a false public communication, the inquiry then focuses on

whether such communication was made knowingly or with reckless

disregard.

36

 Pursuant to the above rules regarding false

communications, we conclude that respondent did not violate

Canon 7(B)(1)(d). A review of the four exhibits reveal that

the communications were either literally true, substantially

true despite their inaccuracies, or communicated mere

rhetorical hyperbole. Thus, we reject the JTC’s

recommendation to suspend respondent from all judicial

activities without pay for a period of ninety days. MCR

9.225.

Pursuant to MCR 7.317(C)(3), the Clerk is directed to

issue the judgment order forthwith.

CORRIGAN , C.J., and WEAVER , TAYLOR , and YOUNG , JJ., concurred

with MARKMAN , J.

37

 S T A T E O F M I C H I G A N

SUPREME COURT

In re JOHN M. CHMURA (AFTER REMAND),

Judge of the Thirty-Seventh District Court,

Warren, Michigan. No. 117565

________________________________

CAVANAGH, J. (dissenting).

Though I do not disagree with the majority’s articulation

of the standard for falsity under Canon 7(B)(1)(d) and its

application of that standard to exhibits 3, 4, and 5, I

disagree with the application to exhibit 1 in this case.

Because I believe that exhibit 1 conveys a false

communication, I would impose some level of discipline on

respondent. I, therefore, must respectfully dissent.

Among other matters, exhibit 1 advertised respondent’s

role in challenging property tax base sharing legislation.

Respondent stated that the legislation “stole from our

taxpayers, our schools and our children to help prop up

Coleman Young,” and stated that, in the course of “standing up

for your children,” he took “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.”1 The

Judicial Tenure Commission concluded that this exhibit falsely

communicated that respondent had “prevented Coleman Young and

1
See slip op at 22-23 for a full description of exhibit

one.

others from taking tax dollars from Warren and Center Line

property owners to spend on the Detroit school system.” In

contrast with the majority, I agree.

As the majority opinion explains, Warren and Center Line

were placed in region 1 under the tax legislation, and Detroit

was placed in region 2. See slip op at 24. Because the

legislation provided that school districts would only share

revenue with other districts within the same region, tax

revenue from Warren and Center Line could not actually have

been directed to Detroit. The majority concludes that

respondent’s statement that he prevented Warren and Center

Line’s tax revenue from being directed to Detroit is

nevertheless not false because the overall legislative scheme

provided that if several contingencies had arisen, Warren and

Center Line’s tax revenues could have been directed to

Detroit. See id. at 24-25; see also MCL 380.752(3); MSA

15.4752(3), repealed 1993 PA 175.

That conclusion, however, does not consider what

respondent actually communicated. Importantly, in exhibit 1

respondent stated that Coleman Young and his supporters “stole

from our taxpayers” to “help prop up Coleman Young.” Though

I take no issue with respondent’s hyperbolic use of the term

“stole,” it nonetheless refers to a completed act, not a

potential act that depended on a chain of contingencies, as

the majority concludes.2 Here, respondent did not state that

2
As the majority states, respondent used “stole” to

colorfully describe the effect of the legislation. See slip

(continued...)

2

the legislation “would steal,” “could steal,” or “was going to

steal” Warren and Center Line’s tax revenue. Instead, by

stating that the legislation “stole” from Warren and Center

Line, respondent communicated that the perceived wrong had

already been perpetrated. Further, he communicated that the

lawsuit he handled corrected that wrong when “the state backed

down.” Because of the statutory region classifications,

though, revenue from Warren and Center Line had not, and could

not have, gone to Detroit. By communicating that he brought

a lawsuit that prevented Detroit from receiving tax revenue

that had been stolen to benefit Detroit, then, respondent

conveyed an “inaccurate statement,” that is, a false

communication.

With that false communication, the analysis must proceed

to step two, which considers whether the gist, substance, or

sting of the communication is true despite the factual

inaccuracy. That is, the analysis must consider whether the

inaccuracy “alters the complexion of the affair, and would

have no different effect on the reader than that which the

literal truth would produce . . . .” Rouch v Enquirer & News

of Battle Creek (After Remand), 440 Mich 238, 259; 487 NW2d

205 (1992), quoting McAllister v Detroit Free Press Co, 85

2
(...continued)

op at 30. “Colorfully” also euphemistically describes the

racial overtones this flier intended to convey. However, had

respondent used a less inflammatory phrase, perhaps saying

that the legislation “appropriated revenue from” or

“redistributed money from” Warren and Center Line to Detroit,

this point would nevertheless remain true. The focus is not

the connotation of the term respondent used to describe the

act, but that the term he used described a completed act

rather than a pending act.

3

Mich 453, 461; 48 NW2d 612 (1891); see also slip op at 17-19.

For largely the same reasons that the communication was

false, the gist, sting, and substance of the communication is

also false. Respondent stated that “Coleman Young and the

Lansing crowd” completed an act–they “stole” from Warren and

Center Line–and that respondent handled a lawsuit, the result

of which was that they “backed down and allowed your kids to

benefit from your hard-earned tax dollars.” The literal

truth, however, is that when respondent was handling the

lawsuit he referenced, no revenue had been, and no revenue

could be, directed from Warren and Center Line to Detroit.

This literal truth would have a different effect on the reader

than respondent’s inaccurate statement. The effect of the

literal truth was that respondent was counsel on a case

challenging legislation that, at most, might have sent revenue

from Warren and Center Line to Detroit if certain facts had

come to be, but was not sending any revenue from Warren and

Center Line to Detroit. On the other hand, the effect of

respondent’s inaccurate statement was that the legislation

“stole” from Warren and Center Line, sent the revenue to

Detroit to “prop up” its mayor, and that the suit respondent

handled was necessary to force the state to back down and

allow school children in Warren and Center Line to benefit

from those cities’ tax dollars and stop sending those tax

dollars to Detroit. Because the pleaded truth would have had

a different effect on the mind of the reader than the

inaccurate statement, the statement was not substantially

true, and therefore violated Canon 7(B)(1)(d).

4

 This violation of the Canon provides a basis for imposing

discipline on respondent. Recently, this Court set forth a

nonexhaustive list of factors that should be applied when

determining the sanction for judicial misconduct. See In re

Brown, 461 Mich 1291, 1292-93 (2000). However, absent a

majority favoring disciplining respondent, an analysis of

those factors would have no effect in this case, so I will

refrain from discussing them. Suffice it to say that I

conclude that respondent has violated Canon 7(B)(1)(d). I,

therefore, respectfully dissent.

KELLY , J., concurred with CAVANAGH , J.

5