The Place Where Ludington Talks

Should a Retiring Judge Endorse a Successor?

Should everybody be allowed to endorse a political candidate of their choice?

One might quickly answer this affirmatively, since everybody is entitled to express their opinion by the guarantees of the First Amendment, even if those people are not even able to vote for the person they're endorsing (due to age, citizenship, incarceration, etc.). Why restrict anybody from endorsing the person they feel is best for the job?

Should public officials be allowed to endorse a successor when they leave their position for whatever reason (e.g. retirement, term limits, transitioning, etc.)?

Again one might be inclined to agree that the former official should be able to voice his preference and offer his unique perspective of intimately knowing what that person is getting into. President Obama endorsed Hillary Clinton and Governor Snyder endorsed Bill Schuette at the ends of their incumbencies, without nobody thinking less of either of them.

There is a small, but very powerful, class of people in the country that must abide by restrictions as to who they can endorse in political contests. Most of these people are elected themselves and follow these restrictions so that they do not appear as partisan, impartial or improper. They are judges.

In Michigan, a 'code of conduct' for judges, the Code for Judicial Conduct has eight basic canons. The seventh bars a judge expressly from endorsing a candidate for non-judicial office. The second notes that a judge should not use the prestige of office to advance personal business interests or those of others.

It was expected that retiring Judge Richard Cooper would be favoring his son Craig over the other three candidates back in 2014, but it seemed somewhat tacky that he would be actively in his son's campaign activities, particularly when two of the other candidates (Prosecutor Paul Spaniola, and Public Defender David Glancy) regularly appeared before him seeking impartial justice for their clients. Probate Judge Mark Raven endorsed Jeff Nellis back in 2012, starting the trend.

With this in mind, retiring Judge Peter Wadel (above) made an endorsement this week regarding his replacement which is worth a look, from the MCP:

"I am retiring at the end of this year because of the state constitutional age limit barring judges from running after turning 70 years of age. It has been a pleasure to serve as District Judge for Mason and Lake counties for the past 17-plus years.

There are two candidates running to be the next judge of the 79th District Court: Glenn Jackson and John Middlebrook. Both are well qualified to sit as District Court Judge.

Glenn Jackson is currently the 79th District Court Administrator and Magistrate. He is more knowledgeable about the court operations: budgeting, reporting, scheduling, audits, and management of staff than John Middlebrook. He is also very tech savvy and the courts are rapidly adopting technology changes that need the technology skills that he possesses but Mr. Middlebrook does not.

Glenn Jackson is the most qualified candidate for the 79th District Court and he has my support for election as the next district court judge."

Sincerely, Peter J. Wadel Judge – 79th District Court

While the Michigan canons allow a judge to endorse a judicial candidate, other canons can certainly apply if there are other considerations. This has been explored in other states whose rules for judicial conduct are fairly standard, including Indiana, which has a special board for investigating code of judicial conduct violations, more broad in scope than Michigan's Judicial Tenure Commission.

This panel of judges reviewed the issue of "May a retiring judge publicly endorse a successor candidate for the retiring judge’s seat?" in 2019. They came to the following conclusion:

"Unlike the public endorsement from a candidate running for judicial office, a public endorsement from a retiring judge is not speech in support of his or her campaign but rather may be perceived as an attempt to trade on the judge’s opinion or prestige of office to further the interests of another.

Since the judge regularly continues to preside over cases, this may cause members of the public to question the judge’s independence or impartiality because the endorsement (or opposition of a candidate) could be perceived as a bias in favor of or against the candidate’s views when those issues come before the judge. Even more problematic, there is a danger that members of the public may perceive that the retiring judge has “assume[d] a role as political powerbroker.”

It is the Commission’s view that these dangers are too great and that the Code of Judicial Conduct simply does not permit a retiring judge who is still on the bench to publicly endorse candidates for public office."

Through Judge Wadel's endorsement, one could perceive that he may be using the prestige of his office to advance somebody who is already part of the district court staff (Magistrate Jackson, pictured above right). One could perceive potential bias against Prosecutor Middlebrook's (above left) views and arguments when he appears before Judge Wadel on behalf of the people for arraignments and preliminary exams. One may even perceive that the judge has made himself a powerbroker.

These 'perceptions' that the endorsement creates flies in the face of what I have experienced over the years when in Judge Wadel's court. In my opinion, Peter Wadel epitomizes everything about what a judge should be: impartial, knowledgeable, open-minded, attentive and constructive. Unfortunately, Mason County's bad tradition of using the standing court's prestige to choose a successor rather than letting the candidates fairly and impartially present themselves to the voters will continue.