This opinion is superseded by JI-133.

JI-132

August 12, 2005

SYLLABUS

A judge whose spouse is an assistant prosecuting attorney must disclose the relationship whenever the prosecutor's office appears in a matter pending before the judge. The judge is recused unless the parties voluntarily ask the judge to proceed. In order for the parties to make this decision, the prosecutor appearing should disclose whether the spouse has participated personally and substantially in the pending matter. Even if the spouse has not personally or substantially participated in the pending matter, the parties retain the right to require the judge's disqualification.

References: MCJC 1 and 2; Comment to MRPC 1.7; JI-101, R-3, CI-605, CI-1130; MCR 2.003(b)(6); People v. Wells, 238 Mich. App 383, 391, 605 N.W.2d 374 (1999).

TEXT

The judge is married to an assistant prosecuting attorney ("the spouse") practicing in the same jurisdiction at the prosecutor's office. Sometimes the spouse appears as a trial attorney before other judges in the circuit court, but never before his/her spouse. The spouse has no supervisory authority in the prosecutor's office except over his/her own cases that do not go before the judge. The spouse handles preliminary examinations in the district court and serves as a "duty prosecutor" by reviewing police reports and complaints to ascertain whether criminal charges will be initiated.

Three procedures are employed to avoid conflicts of interest between the judge and the spouse in accordance with MCR 2.003(B), which calls for automatic disqualification if the judge's spouse is acting as a lawyer in the proceeding.

(1) When felony cases are assigned to the judge, the judge's clerk reviews the file to determine whether the spouse has had any involvement with the case. If the spouse was involved, the case is automatically assigned to another circuit judge.

(2) The spouse's supervisor double-checks the clerk and reviews cases assigned to the judge to determine whether the spouse was involved in the case. For example, the spouse may have served as a duty prosecutor in the case by reviewing a police request for a warrant.

(3) Criminal defense attorneys have "unfettered access" to all of the prosecutor's files in any pending case, except for attorney work product, affording any defense attorney the opportunity to discover involvement by the spouse that the first two procedures may have missed.

Even if a case makes it past all three procedural safeguards, a Notice and Waiver of Disqualification is sent to counsel of record informing the defendant of the relationship between the judge and the spouse. The judge claims the waiver must be signed before the case can move forward and if the waiver is not returned or if the defendant chooses to have the matter heard by a different judge, for any reason whatsoever, the file is automatically assigned to another judge, pursuant to JI-101. Upon review of the material the inquirer provided to this committee however, it appears if a defendant does not return the Notice and Waiver of Disqualification in a timely manner, the non-reply is deemed a waiver of his or her disqualification and the case proceeds with the judge. Regardless, the judge maintains JI-101, as currently interpreted, places an overwhelming burden on the other circuit judges, as 16% of the judge's defendants ask to be reassigned to different judges. None of those defendants have provided a reason for the disqualification other than a desire to seek reassignment by virtue of the notice. The judge's claims this creates a significant imbalance in the case assignments and that it is difficult to re-assign other cases to the judge because those cases are often in advanced stages of litigation.

ISSUE

The inquirer asks whether a judge who is married to an assistant prosecuting attorney must automatically withdraw from presiding in a criminal case on request of the defendant solely because of the marital relationship where:

• The spouse will not appear before the judge in any matter;
• The spouse has supervisory function only as to the spouse's own assignments;
• No case is assigned to the judge where the spouse has been involved;
• The spouse's supervisor screens the file to ensure the spouse had no involvement in the case;
• If requested by the defendant, the judge will be disqualified if it is later discovered that the spouse was involved in the case.

DISCUSSION

MCR 2.003(B)(6) states that a judge is disqualified where the judge's spouse is acting as a lawyer in the proceeding. This is a mandatory disqualification that cannot be waived by the defendant. MCR 2003 is not exactly on point because in the case at hand, the spouse has not and will not appear before the judge in any matter.

The committee has opined in previous opinions where the spouse of the judge was a member of an advocate's firm, but not participating in the case heard by the judge. See R-3 and CI-605. In those cases, it was determined that the judge was not automatically disqualified from hearing a case conducted by an unrelated attorney when the judge's spouse was the member of the same law office as the attorney acting in the proceeding. In that situation, "the judge must disclose the relationship to all the parties to the proceeding and disqualify him/herself unless the parties formally request the judge to continue." CI-605 noted that "[t]his is a more exacting standard than was suggested . . . for lawyer spouses, where disclosure would be mandatory only if all of the circumstances indicated that one of the spouses could have a personal interest in the outcome of the matter. Of course, the role of a judge differs from that of an advocate and this more exacting standard is clearly appropriate."

JI-101 is most on point. In that case, a district judge was married to an assistant prosecuting attorney practicing in the same jurisdiction. The assistant prosecuting attorney was also the chief trial attorney and had significant supervisory responsibilities including the investigation, preparation and trial of felony cases in circuit court, supervising felony dispositions, waivers, trial scheduling, direct dispositions, trials, and the day-to-day activities of criminal investigations. The judge was required to disclose the relationship whenever the prosecutor's office appeared in a matter before the judge, even if the spouse was not involved in the case. Additionally, the prosecutor was required to disclose whether the spouse had personally and substantially participated in the matter. Even if the prosecutor believed that the spouse had neither personally nor substantially participated in the matter, the judge was to be recused, unless the parties asked the judge to proceed.

JI-101 reiterates the opinions set forth in R-3 and CI-605 that a judge is disqualified where the law firm of the judge's spouse appears as an advocate for any party, unless the relationship is disclosed and all parties' consent. JI-101 states, "when a relative of the judge is employed by an advocate's firm appearing in the matter, the judge is recused unless the parties affirmatively ask the judge to proceed in the matter." Thus the opinion made the easy comparison between a spouse's affiliation with a law firm, and a spouse's affiliation with the prosecutor's office, and then applied the same standard.

In this case, the judge expresses that the effect of JI-101 creates a significant imbalance in case workloads, adversely affecting the circuit court docket and because of the procedural protections followed by the judge's office and the prosecutor's office, an individual exception should be granted. The judge is not the first to encounter this situation. Written in 1989, R-3 acknowledges that there has been an "increase in the number of married couples where both spouses are practicing law."

In this case the judge has seen first hand the unfortunate impact that results from mandatory disqualification. The interests of the community as a whole must be balanced against the interests of the individual defendant. On the one hand exists a "heavy presumption of judicial impartiality." People v. Wells, 238 Mich. App 383, 391, 605 N.W.2d 374 (1999). But on the other exists the notion that the nature of the relationship between married couples poses a possible threat to the integrity of the judicial process. The comment to MRPC 1.7 recognizes the risks inherent to a situation such as this and states "[w]hen lawyers representing different clients in the same matter or in substantially related matters are closely related by blood or marriage, there may be a significant risk that client confidences will be revealed and that the lawyer's family relationship will interfere with both loyalty and independent professional judgment." This committee has previously acknowledged that in marital relationships, lawyers are likely to have a certain degree of "intimacy, confidentiality, and shared interest that creates the potential for conflict of interest in connection with a martial relationship." R-3. As previously mentioned, CI-605 acknowledges that due to their position in the court, judges face more rigorous disclosure standards than would two adversarial, albeit married, lawyers. Cannon 1 of the Model Code of Judicial Conduct states that an "independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved." The Comment to MCJC 2 notes that "[m]aintaining the prestige of judicial office is essential to a system of government in which the judiciary functions independently of the executive and legislative branches. Respect for the judicial office facilitates the orderly conduct of legitimate judicial functions." Thus, the Michigan Rules of Professional Conduct work to protect the integrity of the judiciary by providing mechanisms by which married lawyers and judges must disclose their relationship if they both wish to participate in the same case or controversy.

Here the judge attempts to differentiate his/her case from the situation in JI-101 by arguing that although the case at hand is similar to the situation in JI-101, it is factually distinct in at least one material way. In JI-101, the spouse's position as chief trial attorney had much more significant supervisory responsibilities than does the spouse in the case at hand. The judge argues the primary basis for this opinion in JI-101 was the personal and substantial participation of the spouse in all of the cases that were handled by the prosecutor's office. It is true that in JI-101, screening the spouse from certain cases was a near impossibility due to the spouse's supervisory position. However, the factual distinction from this case does not require an exception to the current procedure under JI-101. It is true that JI-101 found the spouse's supervisory position to be "pivotal in determining which cases the prosecutor spouse has had a 'personal and substantial participation''' in the matter. It was only pivotal, however, in terms of assisting the defendant and counsel in making the decision of whether to ask the judge to proceed with the case. The judge has failed to cite any authority that requires the parties to make a finding that the spouse has participated personally and substantially before exercising his or her right to disqualify the judge. That may in fact be a prudent course of action, but nonetheless, it is not the procedure the judge must follow as the law currently stands.

Finally, the judge cites CI-1130 as support for argument that an exception to JI-101 should be created because of the unique procedural safeguards employed by the judge. However, upon closer review, it does quite the opposite. In that case, a lawyer was not permitted to personally represent criminal defendants in the county where his/her fiancé was chief assistant prosecutor. The opinion stated, "it is not proper for the intended spouse of a chief assistant prosecutor to represent criminal defendants, or others whose interests are adverse to interests represented by the prosecutor's office, in that county." However, the opinion gave a limiting instruction. It stated, "this opinion is limited in scope to a situation involving a lawyer spouse employed in a supervisory position in a prosecutor's office." However, this statement was not included in the opinion in order to distinguish between lawyers employed in a supervisory versus a non-supervisory position at the prosecutor's office. Rather, it was included for the purpose of distinguishing between prosecutor's offices and private firms. "The direct chain of command that is characteristic of a prosecutor's office and not necessarily characteristic of the structure of a private firm, nor are political pressures present in the private sector to the same degree as in a prosecutor's office. No opinion is expressed herein regarding a potential conflict with a lawyer spouse in private practice."

CONCLUSION

The judge must continue to disclose his/her relationship with the judge's spouse whenever the prosecutor's office appears in a matter pending before the judge. The judge is recused unless the parties voluntarily ask the judge to proceed. In order for the parties to make this decision, the prosecutor appearing should disclose whether the spouse has participated personally and substantially in the pending matter. Even if the spouse has not personally or substantially participated in the pending matter, the parties reserve the right to require the judge's disqualification.