____________________________________________________________________________________________ 

____________________________________________________________________________________________________________________________ 

___________________________________________ 

Michigan Supreme Court

Lansing, Michigan 48909 

C hief Justice Justices

Maura D. Corrigan	 Michael F. Cavanagh

Elizabeth A. Weaver 

Marilyn Kelly

Clifford W. Taylor

Robert P. Young, Jr. Opinion 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, 37t 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-offormula” 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-offormula” school districts. The Detroit School District, on
 

the other hand, was located in region 2 and was an “informula” 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-offormula 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-andtumble 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 freelance 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