JI-157
May 10, 2024
SYLLABUS
Judicial officers should conduct a disqualification analysis if the judicial officer or their family is threatened or physically attacked. Filing a grievance against an attorney who has threatened or physically attacked the judicial officer does not automatically disqualify the judge from presiding over the case. The judicial officer should conduct a disqualification analysis to determine if their impartiality has been impacted by the incident.
References: MCJC 1, 3(A), 3(C), 3(D); MRPC 8.3; MCR 2.003(A), (B), (C); J-5, J-6, JI-29, JI-34, JI-35, JI-39, JI-51, JI-57, JI-61, JI-62, JI-79, JI-86, JI-43, RI-131; People v. Elmore, 92 Mich App 678; 258 NW2d 417 (1979); People v. Lowenstein, 118 Mich 475; 325 NW2d 462 (1982); Merritt v. Hunter, 575 P2d 623, 624 (Okl 1978); Withrow v. Larkin, 421 US 35, 47; 95 S Ct 1456; 43 L Ed 2d 712 (1975); ABA Informal Opinion i1477.
TEXT
The issue of judicial security has increasingly become a source of concern due to the rising number of threats and attacks against judicial officers. With this increase in incidents come inquiries as to what a judicial officer must do ethically to ensure the judicial officer upholds the integrity of the judiciary in accordance with Canon 1 and the impartiality of the office in accordance with Canon 3.
Relevant Code Provisions
Canon 1. A Judge Should Uphold the Integrity and Independence of the Judiciary.
An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should personally observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. A judge should always be aware that the judicial system is for the benefit of the litigant and the public, not the judiciary. The provisions of this code should be construed and applied to further those objectives.
Canon 3. A Judge Should Perform the Duties of Office Impartially and Diligently.
The judicial duties of a judge take precedence over all other activities. Judicial duties include all the duties of office prescribed by law. In the performance of these duties, the following standards apply:
A. Adjudicative Responsibilities:
(3) A judge should be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity, and should require similar conduct of lawyers, and of staff, court officials, and others subject to the judge’s direction and control.
…
(13) A judge should adopt the usual and accepted methods of doing justice; avoid the imposition of humiliating acts or discipline, not authorized by law in sentencing and endeavor to conform to a reasonable standard of punishment and not seek popularity or publicity either by exceptional severity or undue leniency.
(14) Without regard to a person’s race, gender, or other protected personal characteristic, a judge should treat every person fairly, with courtesy and respect. To the extent possible, a judge should require staff, court officials, and others who are subject to the judge’s direction and control to provide such fair, courteous, and respectful treatment to persons who have contact with the court.
C. Disqualification: A judge should raise the issue of disqualification whenever the judge has cause to believe that grounds for disqualification may exist under MCR 2.003(C).
D. Waiver of Disqualification. A disqualification of a judge may be waived as provided by MCR 2.003(E).
DISCUSSION
Security issues for judicial officers not only bring the issue of protection to the forefront but also bring ethical considerations, depending on the circumstances. Ethically, a judicial officer should consider whether disqualification is necessary when threatened or physically attacked. MCR 2.003(C) delineates the grounds for disqualification. As stated in MCR 2.003(A), MCJC 3(C), and in ethics opinion J-6, any party or the judge may raise the issue of a judge’s disqualification by motion.
It should be noted that, simply because disqualification is raised due to a threat or physical attack, the fact that the issue is raised does not automatically disqualify the judicial officer. The judicial officer must weigh the grounds for disqualification and determine whether the judicial officer may remain impartial and uphold the integrity of the office. The term “impartial” is defined as “unbiased, fair and unprejudiced.”1 The Committee has rendered several ethics opinions regarding issues of impartiality and bias.2
Necessity for Disqualification Analysis
The judicial officer should appropriately weigh the threat or physical attack event against their person or family with any personal bias against a party or attorney through an objective lens.3 “Any circumstances that objectively lead to the conclusion that the judge’s impartiality might reasonably be questioned calls for disqualification. This objective standard extends beyond the judge’s personal belief that his impartiality is not impaired.”4 MCR 2.003 states in pertinent part:
“(B) Grounds. A judge is disqualified when the judge cannot impartially hear a case, including a proceeding in which the judge
“(1) is interested as a party;
“(2) is personally biased or prejudiced for or against a party or attorney;
“…
“(7) is disqualified by law for any other reason.”
Under MCR 2.003(B)(2), a judicial officer is automatically disqualified if personally biased or prejudiced for or against a party or a party’s attorney. Disqualification is required not only when there is actual bias, People v. Elmore, 92 Mich App 678; 258 NW2d 417 (1979), but also in the absence of actual bias if the circumstances may reasonably call an adjudicator’s objectivity into question. In People v. Lowenstein, 118 Mich 475; 325 NW2d 462 (1982), the Court of Appeals agreed with the proposition set forth in Merritt v. Hunter, 575 P2d 623, 624 (Okl 1978), that, “even though a judge personally believes himself to be unprejudiced, unbiased and impartial, he should nevertheless certify his disqualification where there are circumstances of such a nature to cause doubt as to his partiality, bias, or prejudice.” Emphasis added.5
The Court of Appeals in People v Lowenstein, 118 Mich App 475 (1982) further analyzed this, where the court stated:
“No human being (even a judge) is completely prejudice free. But our judicial system requires judges. Therefore, we make allowances. Under normal circumstances, we will assume (absent evidence to the contrary) that the judge is free enough from bias to make a tolerably nonpartisan decision. For example, a judge will occasionally preside over a case involving a defendant who had earlier pled guilty to the offense. Because this situation often enough arises and because the appearance of impropriety is not that high, we allow the trial judge to remain in charge of the case absent a showing of actual bias. [Citation omitted.] However, we realize that some situations are just too dangerous. Judges normally are not subjected to such special pressures and ‘under a realistic appraisal of psychological tendencies in human weakness’ we find that the appearance of justice requires the judge to disqualify himself. The test is not whether or not actual bias exists but also whether there was ‘such a likelihood of bias or an appearance that the judge was unable to hold the balance between vindicating the interests of the court and the interests of the accused’. Ungar v. Sarafite, 376 US 575, 588; 84 S Ct 841; 11 L Ed 2d 921 (1964). In fact, ‘even though a judge personally believes himself to be unprejudiced, unbiased and impartial, he should nevertheless certify his disqualification where there are circumstances of such a nature to cause doubt as to his partiality, bias or prejudice’. Merritt v. Hunter, 575 P2d 623, 624 (Okla, 1978). The right to a fair tribunal is a right grounded in due process. United States v. Sciuto, 531 F2d 842 (CA 7, 1976).” People v. Lowenstein, 118 Mich App 475, 481-483 (1982).
The test of Lowenstein has been stated another way in Pitoniak v. Borman’s Inc, 104 Mich App 718, 724 (1981):
“A party who challenges the impartiality of a judge or tribunal need not show actual prejudice; it is sufficient grounds for disqualification if the situation is one in which ‘experience teaches that the probability of actual bias on the part of the judge or decision-maker is too high to be constitutionally tolerable.’” Withrow v. Larkin, 421 US 35, 47; 95 S Ct 1456; 43 L Ed 2d 712 (1975), Crampton, supra, 351.6
If the threat or physical attack against the judicial officer would affect the judicial officer’s impartiality and/or bias toward an attorney or party, it is incumbent upon the judicial officer to disqualify themselves. This analysis ensures that the litigant receives their constitutional right to a fair and impartial forum. When weighing the issue of disqualification, the judicial officer must also consider the motives of the litigant or attorney and whether it rises to the level of forum shopping. However, if the judicial officer finds, following the required analysis, by providing information on the record to certify that disqualification is not necessary, that they can continue to act in an impartial manner, they may continue to preside over the proceedings and the litigants are free to avail themselves of their appellate rights if found necessary.
Grievances and Disqualification
All attorneys have an ethical obligation under MRPC 8.3 to report a violation by another attorney when the attorney knows “that another lawyer has committed a significant violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer.” When a judge becomes aware of unprofessional conduct, a judge should report an attorney to the Michigan Attorney Grievance Commission and a judge to the Michigan Judicial Tenure Commission in accordance with Canon 3(B)(3).
If the threat or physical attack is made by an attorney, the judicial officer must determine if a grievance needs to be filed under MRPC 8.3. If a grievance is filed by the judicial officer, it is not necessary for the judicial officer to disqualify themselves from presiding over the case unless the judicial officer’s impartiality or bias is impacted due to the incident. The same analysis is applied as stated above.
CONCLUSION
Judicial officers are not automatically disqualified when receiving a threat or being physically attacked by a litigant or an attorney. Threats and physical attacks affect judicial officers differently. Therefore, judicial officers should conduct a disqualification analysis under MCJC 3 and MCR 2.003 to determine if disqualification is necessary.
1. Black’s Law Dictionary (11th ed)
2. See J-5, JI-29, JI-34, JI-35, JI-39, JI-51, JI-57, JI-61, JI-62, JI-79, and JI-86.
3. See MCR 2.003(C)(1).
4. See ABA Informal Opinion i1477.
5. See RI-131; JI-43.
6. See also J-5.