August 20, 1984
A Friend of the Court referee is not a position of "judicial power," and therefore, the referee is not required to resign as referee when seeking election to non-judicial office.
References: MCJC 7A(3); Underwood v. McDuffee, 15 Mich 361 (1867).
A lawyer presently holds the position of a Friend of the Court referee, which is an appointment by the chief circuit judge of the county. As referee, the lawyer performs certain quasi-judicial functions, including conducting hearings and submitting a report to the circuit judge assigned to the case. The referee lacks the authority to make binding orders or judgments. The lawyer would like to actively seek the office of county prosecutor, and asks whether he must first resign as referee.
MCJC 7A(3) provides:
"A judge should resign his office before he becomes a candidate in a party primary or in a general election for non-judicial office."
If a referee is a "judge" within the Canon, then the referee must resign before seeking nonjudicial office. In Underwood v. McDuffee, 15 Mich 361 (1867), the Court held judicial power vested by the Michigan Constitution is not exercised by a referee in determining facts in a cause submitted to the referee. Conversely, the Michigan Canons are derived from the ABA Model Code of Judicial Conduct, which states at "Compliance with the Code of Judicial Conduct":
"Anyone, whether or not a lawyer, who is an officer of a judicial system performing judicial functions, including an officer such as a referee in bankruptcy, special master, court commissioner, or magistrate, is a judge for the purpose of this Code. All judges should comply with this Code . . . ."
The ABA comment has not been adopted by the Michigan Supreme Court. Therefore, the referee is not bound by the Michigan Code of Judicial Conduct and need not resign the position before seeking nonjudicial office.