NOTE: Various references in this ethics opinion to portions of the Michigan Code of Judicial Conduct are no longer accurate due to amendments effective August 1, 2013. Click here to review language added to (which is underlined) and language stricken from (which is indicated by strikethrough) Canons 2, 4, 5, and 7.
July 27, 1994
A district court magistrate may not concurrently serve on a city board of police commissioners.
References: MCJC 1, 2B, 3A(1), 5B, 5G; JI-10, JI-56.
A recently appointed district court magistrate asks whether it is ethical to continue to serve on the city board of police commissioners. The board of police commissioners regularly reviews and investigates citizens' complaints against officers, serves as a final appeal for officers who have been disciplined, and approves or denies promotions of police officers.
A magistrate is a judicial officer within the jurisdiction of the Michigan Code of Judicial Conduct. JI-10, JI-56. MCJC 5G states:
"A judge should not accept appointment to a governmental committee, commission, or other position that is concerned with issues of fact or policy on matters other than the improvement of the law, the legal system, or the administration of justice."
Although the board of police commissioners may serve to facilitate the administration of justice by reviewing and investigating citizen complaints against officers, the fundamental principles of impartiality, independence and integrity of a judge are in conflict with the member's role on the commission. MCJC 1 provides that "an independent and honorable judiciary is indispensable to justice in our society." The board of police commissioners is an executive agency appointed by the chief executive of the city, i.e., mayor. This conflicts with a strict separation of the judiciary. In addition, a magistrate who is also subject to control by the executive may be swayed by political interest. MCJC 3A(1) states:
"A judge should be faithful to the law and maintain professional competence in it. A judge should be unswayed by partisan interest, public clamor, or fear of criticism."
Information that the magistrate may discover through duties for the board of police commissioners may compromise the impartiality of the judiciary. In the instant inquiry, claimed violations of ordinances of the city are regularly and routinely presented before magistrates. Frequently, the city's case is presented by a police officer whom the magistrate may have evaluated in duties on the board. Thus, the magistrate may give more or less credence to an officer's testimony or request for a warrant based on previous information and conceptions. Thus the city is regularly and routinely before the court as are its police officers. Accordingly, a district court magistrate's simultaneous service on the city board of police commissioners violates the Michigan Code of Judicial Conduct by destroying the magistrate's appearance of impartiality. MCJC 1 and 2B.
Although the committee does not opine on questions of law, we note that the Michigan Constitution mandates a strict separation of powers between the three branches of government. MI Const 1963, Art 3, Sec 2 states, "The powers of government are divided into three branches; legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch . . . ." Township of Dearborn v. Dearborn Township Clerk, 334 Mich 673, 691 (1952). Justice Cooley has stated:
"This decision 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." In re Manufacturer's Freight Forwarding Co, 294 Mich 57, 64 (1940), citing People ex rel Sutherland v. Governor, 29 Mich 320 (1874).