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Ethics Opinion

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JI-96

August 12, 1994

SYLLABUS

    A judge is not automatically disqualified from presiding over uncontested proceedings in which one of the lawyers is an announced candidate for that judge's position in an upcoming judicial election.

    References: MCJC 2A, 2B, 3C; JI-23; MCR 2.003(B).

TEXT

A probate judge for a district comprised of two rural counties is a candidate for reelection to judicial office. Three local lawyers have announced their candidacies for the same seat. One of the judge's opponents resides in a county which has only five lawyers. One lawyer is the district judge, another is a retired judge, the third is the county prosecutor and the other two are full time solo practitioners, of which one is a candidate.

The judge asks whether or not judicial disqualification is required in matters where an opposing lawyer-candidate appears before the judge in a representative capacity at uncontested hearings or in matters in which no hearing is necessary because the proposed order is submitted to the judge for signature pursuant to waivers and consents of all interested parties.

In JI-23, the Committee opined that a judge is automatically disqualified from presiding over proceedings in which one of the lawyers was an announced candidate for the judge's seat in an upcoming judicial election. The opinion cites to MCJC 2A, 2B, 3C; MCR 2.003(A), (B)(2) and JTC A/O 103. This opinion reasons that when a judge presides over a matter in which one of the parties is represented by an announced candidate for the judge's seat, the judge's impartiality may become suspect and the neutrality of the judicial process is called into question. There arises a perception that the judge may discredit or embarrass the lawyer-candidate in order to obtain personal advantage in the election process, or conversely lean so far in the opposite direction to dispel any suggestion of resentment that injustice is sustained by the lawyer-candidate's client. The opinion makes no distinction between adversarial proceedings and non-adversarial matters.

While it is true that a lawyer's candidacy for judicial office may raise conflict issues in some instances requiring judicial recusal, the Committee does not believe judges automatically should be disqualified from presiding over uncontested hearings. When a matter is uncontested there is little likelihood the judge's impartiality may be called into question by one of the parties. Similarly, when the judge considers proposed orders submitted on consents and waivers from affected parties, there is little danger of a challenge to the judge's impartiality.

Judges are required to observe and respect the law and promote public confidence in the integrity and impartiality of the judiciary at all times. Therefore, the Committee recommends that whenever a lawyer-candidate for a judge's seat appears before that judge in an uncontested hearing, the judge should disclose the judicial contest to the parties appearing in the matter. In the absence of a reasonable good faith challenge to the judge's impartiality, the judge may preside over uncontested hearings, sign orders submitted on the basis of waivers and consents and otherwise officiate at non-adversarial proceedings.

 
     

 

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