December 15, 2003
A Friend of the Court Referee may not serve as an expert witness.
References: MCLA 552.507; MCJC 2C; MCR 3.215; 9.201(2); 9.205; JI-59,
The inquirer asks if full time Friend of the Court [FOC] referees may serve as expert witnesses in matters to which they are not assigned. For the reasons stated below, we conclude that they may not.
According to the inquiry, a FOC referee has been retained to testify as an expert witness regarding the interpretation of published child support guidelines. The referee proposes to testify in a matter in the same Court in which the referee serves, but not with respect to any matter to which that referee has been assigned by the FOC office.
Questions regarding whether expert testimony on the interpretation and implementation of the child support guidelines should be allowed in any case, and whether a FOC referee is qualified to testify on such issues, are questions of evidentiary law beyond the scope of this Committee's jurisdiction.
A friend of the court referee is a "judge" for purposes of the jurisdiction of the Judicial Tenure Commission. MCR 9.201(2) defines a "judge" as including a "magistrate or referee of a court appointed or elected under the laws of this state." As a "judge" within the meaning of this rule, FOC referees are subject to and bound by the standards of conduct in MCR 9.205, as well as the Michigan Code of Judicial Conduct. See, also, JI-59 (1992).
The only specific mention of judges serving as witnesses is found in MCJC 2C.
C. 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. A judge should not appear as a witness in a court proceeding unless subpoenaed.
Similarly, the ABA Model Code of Judicial Conduct 1991, Canon 2B, states:
B. A judge shall not allow family, social, political or other relationships to influence the judge's judicial conduct or judgment. A judge shall not lend the prestige of judicial office to advance the private interests of the judge or other; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge. A judge shall not testify voluntarily as a character witness.
Commentary: . . . a judge must avoid lending the prestige of judicial office for the advancement of the private interests of others . . . a judge must not testify voluntarily as a character witness because to do so may lend the prestige of the judicial office in support of the party for whom the judge testifies. Moreover, when a judge testifies as a witness, a lawyer who regularly appears before the judge may be placed in the awkward position of cross-examining the judge. A judge may, however, testify when properly summoned. Except in unusual circumstances where the demands of justice require, a judge should discourage a party from requiring the judge to testify as a character witness.
Pursuant to MCR 3.215, the Chief Judge of any circuit may appoint one or more referees under MCLA 552.507. Pursuant to that rule, various kinds of motion proceedings may be referred to a referee for a hearing. The hearings are conducted pursuant to the Michigan Rules of Evidence and result in written findings and recommendations to the court based on those findings. There is no question that a FOC referee is acting in a quasi-judicial capacity in conducting these hearings.
Pursuant to MCLA 552.507, FOC referees are imbued with substantial quasi-judicial powers. They have the power to conduct hearings, administer oaths, compel the attendance of witnesses, examine witnesses and the parties, and make written findings and recommendations to the court. All of these activities are clearly judicial in nature.
For all of these reasons, the Committee believes that a FOC cannot serve as an expert witness in any proceeding. To do so would violate MCJC 2C.
Apart from the express prohibition on a "judge" serving as a witness, the proposed conduct raises other serious concerns. MCJC 2C also provides that "a judge should not use the prestige of office to advance personal business interests or those of others." In serving as a paid expert witness, the FOC referee is using the prestige of the office to advance the referee's personal business, as well as the party for whom the referee is testifying.
Other concerns regarding the judiciary are implicated as well. Pursuant to MCJC 2A, a judge must avoid all impropriety and appearance of impropriety. Pursuant to MCJC 2B, a judge must also act at all times to promote public confidence in the integrity and impartiality of the judiciary. When a FOC referee takes sides in a private dispute, and appears in a public proceeding to advance the interests of a private litigant, this conduct is plainly inimical to the goals of the Canons as set forth above.
The issue of the FOC referee's relationship with counsel who retained them is another troublesome consideration. The FOC may well at the same time, or some later time, be serving as a referee in a different matter in which that attorney appears as counsel for one of the litigants. Issues of disclosure, impartiality and potential disqualification are presented if the FOC referee is deriving a portion of their income from counsel for one of the litigants.
Considering all of the above, it is the conclusion of this Committee that a FOC referee may not serve as an expert witness in any proceeding.