This opinion replaces JI-23, which was rescinded by the Standing Committee on Judicial Ethics on May 11, 2012.

JI-138

November 6, 2012

SYLLABUS

A judge assigned to preside over a case in which one of the advocates is an announced candidate for that judge's seat in the upcoming election is not per se disqualified from presiding over the case. Assuming that the judge ethically can discharge the duties required by the applicable Canons and finds no basis that requires disqualification, the judge should nonetheless disclose to the parties that the advocate is a candidate for the judge's seat, and proceed, unless a timely motion to disqualify is granted.

In the event that an advocate is merely a rumored candidate for the judge's seat, it is not necessary for the judge to make the disclosure.

If the judge learns that the judge's staff is not abiding by the requirements of Canon 3A(10) or 3B(2) in their interactions with the judicial opponent, the judge should remind the staff to abide by those requirements.

References: Canons 2A, 2B, 2C, 3A(10), 3B(2), 3C; MCR 2.003(B), (C)(1); Caperton v. Massey, 129 S Ct 2252 (2009); Cain v. Department of Corrections, 451 Mich 470, 497 (1996).

TEXT

The question arises repeatedly in election years whether a judge must be recused when an advocate in a case over which the judge is presiding is an announced candidate for that judge's seat in the upcoming election. The advocate may be the prosecuting attorney, the public defender, a private attorney, or the Friend of the Court.

Canon 2 of the Michigan Code of Judicial Conduct addresses the appearance of impropriety and provides direction for this question in several provisions.

Canon 2A states in pertinent part:

Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety.

Canon 2B addresses impropriety more specifically, and stating in part:

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.

The United States Supreme Court relied upon the 2004 ABA Model Code's objective standard to determine whether there was an appearance of impropriety in Caperton v. Massey, 129 S Ct 2252 (2009). The test applied is "whether the conduct would create in reasonable minds a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired." Id. citing Canon 2A, Commentary.

Lastly, Canon 2C addresses impartiality, acknowledging personal relationships, stating in part:

A judge should not allow family, social, or other relationships to influence judicial conduct or judgment. A judge should not use the prestige of office to advance personal business interests or those of others.

Additionally, Canon 3 discusses the judge's adjudicative responsibilities and describes the judge's administrative responsibilities with regard to court staff who interact with advocates, parties, and others individuals coming in contact with the court. Canon 3A(10), which applies to the conduct of the judge and the judge's staff, states as follows:

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.

Canon 3B(2) requires a judge to "direct staff and court officials subject to the judge's control to observe high standards of fidelity, diligence, and courtesy to litigants, jurors, witnesses, lawyers, and others with whom they deal in their official capacity."

Canon 3C also discusses disqualification as follows:

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(B).

MCR 2.003(C)(1)(a) states that disqualification is warranted when a judge is biased or prejudiced for or against a party or attorney.

Certainly a judge could abuse the position of office to embarrass or disadvantage a judicial opponent. There may also be fear that the judge would be overly generous to a judicial opponent to avoid appearing as though the judge is attempting to gain an advantage. But, neither assumption should be made in every case over which a judge presides in which a judicial opponent serves as an advocate. Judges are charged with following the law and ethically administering their functions, and it is a reasonable expectation that this will occur in most instances. There is a "heavy presumption of judicial impartiality" where bias or prejudice is alleged by a party against a judge. Cain v. Department of Corrections, 451 Mich 470, 497 (1996).

MCR 2.003(B) permits a party or the judge to raise the issue of a judge's disqualification. Obviously, the lawyer candidate is aware of his or her candidacy; but the judge has no way to ascertain whether the lawyer candidate's client or the opposing party and that party's counsel are aware. As in other situations where disqualification is not mandated, but an issue exists which, left undisclosed, might cause a party to be concerned about the judge's impartiality, the judge should disclose the advocate's candidacy for the judge's seat as soon as practicable to all litigants in the case. If any litigant has concerns about the judge's ability to be impartial in that case, then that litigant has the opportunity to raise the issue and request disqualification by filing a timely motion. By raising the issue as soon as it arises, the judge affords litigants the opportunity to waive disqualification, seek it, or do nothing, thereby avoiding the potential for unnecessary delays later in the case.1

Imposition upon a judge to disclose the potential adverse relationship whenever there is a rumor about a possible challenge to the judge's seat would be overly burdensome, and could cause an unnecessary administrative burden when the candidacy does not come to fruition.

CONCLUSION

A judge assigned to preside over a case in which one of the advocates is an announced candidate for that judge's seat in the upcoming election is not per se disqualified from presiding over the case. Assuming that the judge ethically can discharge the duties required by the applicable Canons and finds no basis that requires disqualification, the judge should nonetheless disclose to the parties that the advocate in the proceeding is a candidate for the judge's seat in the upcoming election, thereby affording parties an opportunity to seek disqualification or not. If no timely motion to disqualify is filed and granted, the judge may proceed. If the judge learns that the judge's staff is not abiding by the requirements of Canon 3A(10) or 3B(2) in their interactions with the judicial opponent, the judge should remind the staff to abide by those requirements.

1 By commencing the clock that determines the timeliness of the filing of a motion to disqualify, parties are foreclosed from later filing motions to disqualify in response to adverse preliminary rulings.