September 14, 1989
All court magistrates are subject to the Code of Judicial Conduct and may not simultaneously hold a judicial office and a non-judicial partisan position.
References: MCJC 7A(1)(a), 7A(3); MCR 6.003(4), 9.201(2).
A full-time nonlawyer judicial district court administrator-magistrate also is an elected township clerk for the judicial district. The township clerk acts as secretary to the board, bookkeeper, registrar for elections, and has one vote in township affairs. The question is whether a district court magistrate is considered a "judge" for purpose of MCJC 7 and, therefore, is precluded from holding a non-judicial office.
MCR 6.003(4), which becomes effective October 1, 1989, defines the terms "Court" and "judicial officer" to include a "judge, a magistrate, or a district court magistrate authorized in accordance with law to perform the functions of a magistrate." This Court Rule is consistent with MCR 9.201(2), which defines "judge" to include "a magistrate or referee of a court appointed or elected under the laws of this State." Therefore appointed lay-magistrates are subject to the provisions of the Code of Judicial Conduct because they exercise judicial powers.
MCJC 7A(1)(a) precludes a judge or a candidate for judicial office from holding any office in a political party. 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 non-judicial office. The Rule is grounded on the precept that judicial officers should earnestly adhere to impartial judicial considerations uninfluenced by partisan political persuasions.
For the stated reasons, the inquirer must resign from one of the two positions. Should the administrator-magistrate elect to resign from the non-judicial office of township clerk, then she/he would be obligated to adhere to all provisions of the Code of Judicial Conduct and continue to be subject to the jurisdiction of the Judicial Tenure Commission.
Whether or not the inquirer may retain the non-judicial office of township clerk on resigning as court-appointed magistrate is a question of law beyond the jurisdiction of the Committee. The Committee has authority to respond to requests interpreting the Rules of Professional Conduct and the Code of Judicial Conduct. The Committee has no power to issue advisory opinions interpreting the Michigan Constitution or legislative enactments.