Must a Michigan judge recuse when one of the lawyers in a case is running for the judge's own seat in the upcoming election?

Plain-English summary

The committee addressed the recurring election-year question whether a judge must recuse when an advocate in a pending case (a prosecutor, public defender, private attorney, or Friend of the Court) is an announced candidate for that judge's seat. It applied MCJC 2A, 2B, and 2C on impropriety, the appearance of impropriety, and impartiality, MCJC 3A(10) and 3B(2) on the conduct of the judge and staff, MCJC 3C and MCR 2.003 on disqualification, and the objective appearance-of-impropriety standard the U.S. Supreme Court used in Caperton v. Massey, asking whether the conduct would create in reasonable minds a perception that the judge's ability to act with integrity, impartiality, and competence is impaired.

The opinion reasoned that although a judge could abuse the office against an opponent or could overcompensate in the opponent's favor, neither assumption should be made in every case, given the heavy presumption of judicial impartiality (Cain v. Department of Corrections) and the expectation that judges follow the law. It concluded the judge is not per se disqualified. Because the judge cannot know whether the opposing party and counsel are aware of the candidacy, the judge should disclose the advocate's candidacy to all litigants as soon as practicable, as in other situations where disqualification is not mandated but an undisclosed issue might cause concern, so litigants can waive disqualification, seek it by timely motion, or do nothing.

The opinion concluded that requiring disclosure whenever there is merely a rumor of a possible challenge would be overly burdensome and could create an unnecessary administrative burden when no candidacy materializes, so no disclosure is required for a rumored candidacy. It added that if the judge learns the judge's staff is not abiding by Canon 3A(10) or 3B(2) in their interactions with the judicial opponent, the judge should remind the staff to comply.

Currency note

This opinion was issued in 2012. It interprets the Michigan Code of Judicial Conduct and the disqualification court rule MCR 2.003 (as amended in 2009) as they then stood; the Code of Judicial Conduct and MCR 2.003 may have been amended since. Verify the current rules before relying on any specific provision cited here.

Common questions

Q: Must a Michigan judge recuse when an opposing candidate for the judge's seat appears as a lawyer?

A: The opinion concluded the judge is not per se disqualified; the judge should disclose the candidacy and may proceed unless a timely disqualification motion is granted.

Q: Why disclose rather than automatically step aside?

A: The opinion reasoned that the heavy presumption of judicial impartiality applies and the judge cannot know whether the other side is aware of the candidacy, so disclosure lets litigants decide whether to seek disqualification.

Q: Does the judge have to disclose a merely rumored candidacy?

A: No. The opinion concluded disclosure is unnecessary where the advocate is only a rumored candidate, as that would be overly burdensome.

Q: What about the judge's staff?

A: The opinion concluded that if staff are not complying with Canon 3A(10) or 3B(2) toward the judicial opponent, the judge should remind them to comply.

Background and rules framework

The opinion interpreted MCJC 2A, 2B, 2C, 3A(10), 3B(2), and 3C of the Michigan Code of Judicial Conduct and MCR 2.003(B) and (C)(1) on disqualification, applying the objective appearance-of-impropriety standard from Caperton and the impartiality presumption from Cain.

Citations and references

Code of Judicial Conduct and court rules (as cited):

• MCJC 2A, 2B, 2C (impropriety, public confidence, impartiality)
• MCJC 3A(10), 3B(2) (fair treatment by the judge and staff)
• MCJC 3C; MCR 2.003(B), (C)(1) (disqualification for bias or prejudice)

Cases:

• Caperton v. Massey, 129 S. Ct. 2252 (2009), objective appearance-of-impropriety standard
• Cain v. Department of Corrections, 451 Mich. 470 (1996), heavy presumption of judicial impartiality

See also

• Mich Judicial Ethics Op. JI-43: recusal of a judge who is a party in unrelated litigation
• Mich Judicial Ethics Op. JI-121: a judge moderating a political party's criminal-justice forum

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=847&Type=6

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

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.