JI-59

November 15, 1992

SYLLABUS

A friend of the court referee is required to resign as referee prior to becoming a candidate for city council.

References: MCJC 7A(3); JI-10, JI-19, JI-56; MCR 2.003(B), 9.201(2), 9.205.

TEXT

A friend of the court referee asks whether a referee may seek election to the local city council and remain referee if successful as a city council candidate.

A friend of the court referee is a "judge" for purposes of the jurisdiction of the Judicial Tenure Commission, MCR 9.201(2), and is bound by the standards of conduct in MCR 9.205, including the Michigan Code of Judicial Conduct. MCJC 7A(3) states:

"A judge should resign his office before he becomes a candidate either in a party primary or in a general election for nonjudicial office."

The city council position is a "non-judicial office" but there is no "party primary" or "general election." It is not clear whether a city council position is one contemplated under MCJC 7A(3). Several opinions have interpreted this Code provision.

In JI-10, applying MCJC 7A(3), the Committee opined that a judicial district court magistrate could not simultaneously hold that magistrate's office and the office of township clerk, stating:

"MCJC 7A(3) requires a judge to resign from the bench before becoming a candidate for non-judicial office. Magistrates cannot simultaneously hold a judicial position and a nonjudicial office. The Rule is grounded on the precept that judicial officers should earnestly adhere to impartial judicial considerations uninfluenced by partisan political persuasions."

In JI-19, the Committee opined that a juvenile court referee may run for election to the public school board. The Committee concluded that the histories of the ABA Model Code and the Michigan Code show that MCJC 7A(3) contemplates only political elections, and that there was no inherent conflict of interest in the school board position which would reflect upon the referee's partiality as referee.

In JI-56 the Committee opined that an assistant prosecutor may not serve as a part-time district court magistrate. After observing that the dual roles would detrimentally impact the appearance of fairness of the tribunal, the Committee noted authorities which prohibit persons exercising powers of one branch of government from exercising powers belonging to another branch. Const. 1963, art. 3, paragraph 2; OAG, 1975-1976, No 4896, p 132 (September 9, 1975); OAG, 1979-80, No 5757, p 923 (August 20, 1980); Dearborn Twp. v. Township Clerk, 334 Mich 673 (1952).

Unlike the school board position in JI-19, the position of city council member is clearly a political position. It is also a position in the legislative branch of government; holding positions in two branches of government is prohibited.

Accordingly, a friend of the court referee is required to resign as referee prior to becoming a candidate for city council.