July 24, 1992
An assistant prosecutor may not serve as a part-time magistrate for a district court.
References: MCJC 1, 2C, 5(C)(1); JI-10; MCR 2.003(B)(2), 6.003(4), 9.201(2); Const 1963, art 3, paragraph 2; OAG, 1975-1976, No 4896, p 132 (September 9, 1975), OAG, 1979-80, No 5757, p 923 (August 20, 1980); Dearborn Twp. v. Township Clerk, 334 Mich 673 (1952); People ex rel Sutherland v. Governor, 29 Mich 320 (1874).
An assistant prosecuting attorney requests an opinion on whether the assistant prosecuting attorney may also serve as the magistrate of a district court situated in an adjoining county. The assistant prosecuting attorney's duties would be split by working four days with the prosecutor's office and one day with the court.
Although previous opinions have addressed prosecutors serving in non-prosecutorial capacities [C-212 and R-13, handling defense cases], and private practitioners serving part-time in a judicial capacity [RI-1 and JI-29, domestic relations referee], no opinions have addressed the ethics of prosecutors serving in a judicial capacity. In RI-129 we addressed whether an assistant prosecuting attorney could also serve as a state hearing referee, but although the state hearing referee presided over matters in a judicial capacity, the office of state hearing referee is part of the executive branch of government, not part of the judicial branch.
A magistrate is a "judge" whose conduct is governed by the Michigan Code of Judicial Conduct. MCR 6.003(4); MCR 9.201(2); JI-10. The conduct of an assistant prosecutor is governed by the Michigan Rules of Professional Conduct. When the inquirer is serving as a magistrate, the ethics rules applicable to the inquirer as a former prosecutor are applicable; when the inquirer is serving as assistant prosecutor, the ethics rules applicable to former judges are applicable. See, for example, MRPC 1.12, RI-1.
A magistrate who also serves as an assistant prosecutor would constantly be scrutinized under MCR 2.003(B)(2) requiring disqualification whenever a judge is biased for or against a party. Moreover, judges should refrain from dealings that tend to reflect adversely on their impartiality, MCJC 1, or involve them in frequent transactions with lawyers or persons likely to come before the Court, MCJC 5(C)(1). The ethics concerns regarding a former prosecutor serving as a judge have been addressed more fully in JI-34, but that opinion did not address the anomaly of the judge alternating prosecutorial and judicial duties. The dual role of prosecutor one day and magistrate the next could cause the person to be dealing with the same defense lawyer or defendant as an adversary on one occasion and as a trier of fact on another. This ability to act as a neutral and detached judicial officer one day a week after advocating for the people as an assistant prosecutor the rest of the week is simply too much to expect from the human personality. MCJC 2C. The appearance that an advocate may be less vigorous in representing a party against the prosecutor, knowing that on subsequent days the advocate will be appearing before that prosecutor sitting as a magistrate, will affect public confidence in the system of justice.
A common thread running through the Michigan Code of Judicial Conduct, ethics opinions, statutes and the Constitution divorces the judiciary from the political arena. The theme appears most evident in the State Const. 1963, art. 3, paragraph 2, which states:
"No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this Constitution."
Two Attorney General Opinions have applied this constitutional provision prohibiting the dual holding of positions in both the executive branch and the judiciary. OAG, 1975-1976, No 4896, p 132 (September 9, 1975) prohibits a justice of the peace from serving as a member of the local board of education, and OAG, 1979-80, No 5757, p 923 (August 20, 1980), prohibits a district court magistrate from serving as county district ambulance supervisor.
In Dearborn Twp. v. Township Clerk, 334 Mich 673 (1952), the Court held a statute unconstitutional which provided the township board to include two justices of the peace as well as the supervisor, clerk and the treasurer. The Court's ruling was unequivocal:
"That the rule favoring strict separation of powers prevails throughout the United States need merely be mentioned in passing. From the time of the Federalist papers, the United States supreme court and other United States jurisdictions have reaffirmed that keeping the 3 great branches of government separate and distinct from each other is essential to the maintenance of a republican form of government." 334 Mich at 683.
An authority no less than the reknown Justice Thomas M. Cooley expounded on the separation of powers:
"Our government is one whose powers have been carefully apportioned between three distinct departments, which emanate alike from the people, have their powers alike limited and defined by the Constitution, are of equal dignity, and within their respective spheres of action equally independent. One makes the laws, another applies the laws in contested cases, while the third must see that the laws are executed. This division is accepted as a necessity in all free governments, and the very apportionment of power to one department is understood to be a prohibition of its exercise by either of the others. The executive is forbidden to exercise judicial power by the same implication which forbids the courts to take upon themselves his duties." People ex rel Sutherland v. Governor, 29 Mich 320, 324 (1874).
Thus it is irrelevant that the inquirer is contemplating magistrate service outside the county in which the inquirer serves as prosecutor: holding both offices, regardless of their location, is prohibited.