Can a Michigan judge serve on a board that awards grants, and must the judge recuse when a grant recipient later appears as a party?

Plain-English summary

A newly appointed district court judge asked whether the judge could continue serving on the board of a governmental agency that evaluates proposals and awards grants to various groups, some of which would frequently litigate before the judge on unrelated matters. The opinion applied MCJC 4A(3) and 4A(4) (serving on and making recommendations to a law-improvement organization or fund-granting agency), MCJC 4C and 4D, MCJC 2A, and MCR 2.003. This opinion replaces and withdraws Informal Opinion JI-12.

The opinion explained that MCJC 4A permits a judge to serve as a member, officer, or director of an organization or governmental agency devoted to improving the law and to make grant recommendations, and that the Canon 4C prohibition on serving an organization likely to appear before the judge does not apply to MCJC 4A bodies. It noted the facts did not involve a board that itself frequently appears before the judge, but rather grant recipients who might appear, and concluded the judge is not per se disqualified from continuing on the board simply because some recipients might litigate before the judge.

The opinion concluded the analysis does not end there. Under MCJC 2A and 2F, and MCR 2.003(C)(1)(b)(ii) (disqualification where, on objective and reasonable perceptions, the judge has failed to adhere to the Canon 2 appearance-of-impropriety standard), the judge must assess each case. Where presiding over a particular case in which a grant recipient is a party would create an appearance of impropriety on objective and reasonable perceptions, the judge should disclose the judge's board status and recuse unless the parties waive disqualification under MCR 2.003(E). And if the judge finds himself or herself frequently addressing this disqualification issue to the point it affects judicial duties, the judge should discontinue board service.

Currency note

This opinion was issued in 2014 and interprets the Michigan Code of Judicial Conduct (as amended in 2013) and the disqualification court rule MCR 2.003 as they then stood. Both may have been amended since. Verify the current rules before relying on any specific provision cited here.

Common questions

Q: Can a Michigan judge sit on a board that awards grants?

A: The opinion concluded a judge may serve on, and make grant recommendations for, an organization or agency devoted to improving the law.

Q: Is the judge disqualified from cases involving grant recipients?

A: The opinion concluded the judge is not automatically disqualified simply because some grant recipients might litigate before the judge.

Q: When must the judge step aside in a particular case?

A: The opinion concluded that where the judge's role in awarding a grant to a party would create an appearance of impropriety on objective and reasonable perceptions, the judge should disclose and recuse unless the parties waive the conflict.

Q: What if the issue keeps recurring?

A: The opinion concluded the judge should discontinue board service if it leads to frequent recusals that affect the performance of judicial duties.

Background and rules framework

The opinion interpreted MCJC 2A and 2F, 4A(3) and 4A(4), 4C, and 4D of the Michigan Code of Judicial Conduct, and MCR 2.003(C)(1)(b) and (E) on disqualification and remittal. It replaced and withdrew prior Informal Opinion JI-12.

Citations and references

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

• MCJC 2A, 2F (appearance of impropriety; membership activities)
• MCJC 4A(3), 4A(4) (serving on and recommending to law-improvement and fund-granting bodies)
• MCJC 4C, 4D (civic, charitable, and fundraising activities)
• MCR 2.003(C)(1)(b), (E) (disqualification on objective perceptions; remittal)

Other opinions cited:

• Michigan JI-12 (replaced, repealed, and withdrawn)

See also

• Mich Judicial Ethics Op. JI-139: a judge's role with charities that support problem-solving courts
• Mich Judicial Ethics Op. JI-119: a judge participating in an investment club

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=849&Type=6

Original opinion text

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

JI-140

January 31, 2014

SYLLABUS

A judge may serve as a member, officer or director of an organization or governmental agency devoted to the improvement of the law, the legal system, or the administration of justice and in that capacity or otherwise may make recommendations to the organization or agency on projects or programs of the organization or agency. This would include the recommendations for the award of grant money to applicants for the grant.

A judge is not automatically disqualified from hearing cases that involve the recipient of a grant award from such an organization or governmental agency simply because the judge is a member, officer or director of the awarding organization or governmental agency. If, however, the judge's involvement in having awarded a grant to an entity that is thereafter a party in a case before the judge is such that, based on objective and reasonable perceptions, an appearance of impropriety would be created for the judge to continue presiding over that case, the judge should disclose the facts to the parties and recuse himself or herself from hearing that particular case unless the parties agree to waive the conflict.

If the judge's involvement as member, officer or director of such an organization or agency would lead to frequent recusals from presiding over cases, the judge should not serve as a member, officer or director of such an organization or agency.

This opinion replaces Informal Opinion JI-12, which is hereby repealed and withdrawn.

References: MCJC 2A, 4A(3), 4A(4), 4C, and 4D; MCR 2.003(C)(1)(b) and (E).

TEXT

A newly appointed district court judge has asked whether it is ethically proper for him to continue to serve on the board of directors of a governmental agency whose function is to evaluate proposals and award and administer grants of funds to various groups. Some of the groups would frequently be engaged in litigation before the judge on matters unrelated to the governmental agency of which the judge is a board member.

MCJC 4A states in pertinent part:

3) A judge may serve as a member, officer, or director of an organization or governmental agency devoted to the improvement of the law, the legal system, or the administration of justice. A judge may participate in the management and investment of such an organization's funds.

(4) A judge may make recommendations to the public and private fund-granting agencies on projects and programs concerning the law, the legal system, and the administration of justice.

MCJC 4D provides:

Fundraising Activities. A judge should not individually solicit funds for any educational, religious, charitable, fraternal, or civic organization or any organization or governmental agency devoted to the improvement of the law, the legal system, or the administration of justice or use or permit the use of the prestige of the office for that purpose. A judge may, however, serve as a member of an honorary committee or may join a general appeal on behalf of such an organization. A judge may speak or receive an award or other recognition in connection with an event of such an organization. A judge may allow his or her name or title to be used in advertising the judge's involvement in an event so long as the judge does not individually solicit funds.

MCJC 4C provides:

Civic and Charitable Activities. A judge may participate in civic and charitable activities that do not reflect adversely upon the judge's impartiality or interfere with the performance of judicial duties. A judge may serve and be listed as an officer, director, trustee, or nonlegal advisor of a bona fide educational, religious, charitable, fraternal, or civic organization. A judge should not serve if it is likely that the organization will be engaged in proceedings that would ordinarily come before the judge or will be regularly engaged in adversary proceedings in any court.

ANALYSIS

MCJC 4A(4) permits a judge to continue as a member of a governmental agency which evaluates and administers grant fund proposals to groups. While MCJC 4C specifically proscribes a judge's service as an officer, director, trustee, or nonlegal advisor of an educational, religious, charitable, fraternal, or civic organization if it is likely that the organization will be engaged in proceedings that would ordinarily come before the judge or will be regularly engaged in adversary proceedings in any court, this same prohibition is not contained in MCJC 4A.

The facts as presented do not involve a situation wherein the judge is an officer or director of an organization or governmental agency that is frequently appearing before the judge. Rather, it involves a situation in which an organization appearing before the judge might be a grant recipient of funds awarded by the organization on whose board the judge serves.

Assuming that the judge is serving on the board of the organization that awards grants which is the type of entity described in MCJC 4A, the judge would not be disqualified per se from continuing as a member, officer, or director of the organization or governmental agency simply because some of the grant recipient entities might be engaged in litigation before the judge from time to time. The analysis does not end there, however.

MCJC 2A provides in part that, "A judge must avoid all impropriety and the appearance of impropriety" and MCJC 2F provides in pertinent part that, "A judge should not allow activity as a member of an organization to cast doubt on the judge's ability to perform the function of the office in a manner consistent with the Michigan Code of Judicial Conduct, the laws of this state, and the Michigan and United States Constitutions."

Part of the law of this state governing the conduct of courts and judges is the Michigan Court Rules. MCR 2.003, entitled Disqualification of Judge, sets forth as one ground of disqualification in paragraph (C)(1)(b): "The judge, based on objective and reasonable perceptions . . . (ii) has failed to adhere to the appearance of impropriety standard set forth in Canon 2 of the Michigan Code of Judicial Conduct."

Although the term "appearance of impropriety" is not defined in Canon 2, if, based upon objective and reasonable perceptions, an appearance of impropriety would be created for a judge to preside in an individual case in which a party is an organization that is a recipient of a grant from an organization or governmental agency of which the judge is involved as a member, officer or director, then the judge should disclose the fact of his or her status as a member, officer or director to the parties to the case and recuse himself or herself unless under the terms of MCR 2.003(E) the disqualification is waived by the parties in that case.

If the judge finds himself or herself frequently addressing this issue of disqualification to the point that it is affecting the performance of judicial duties, then the judge should discontinue service as a member, officer or director of the organization.

CONCLUSION

A judge may serve as a member, officer or director of an organization of governmental agency devoted to the improvement of the law, the legal system, or the administration of justice and in that capacity or otherwise may make recommendations to the organization or agency on projects or programs of the organization or agency. This would include the recommendations for the award of grant money to applicants for the grant.

A judge is not automatically disqualified from hearing cases that involve the recipient of a grant award from such an organization or governmental agency simply because the judge is a member, officer or director of the awarding organization or governmental agency. If, however, the judge's involvement in having awarded a grant to an entity that is thereafter a party in a case before the judge is such that, based on objective and reasonable perceptions, an appearance of impropriety would be created for the judge to continue presiding over that case, the judge should disclose the facts to the parties and recuse himself or herself from hearing that particular case unless the parties agree to waive the conflict.

If the judge's involvement as member, officer or director of such an organization or agency would lead to frequent recusals from presiding over cases, the judge should not serve as a member, officer or director of such an organization or agency.

This opinion replaces Informal Opinion JI-12, which is hereby repealed and withdrawn.