This opinion was rescinded by the Standing Committee on Judicial Ethics on May 11, 2012. It has been replaced by JI-138 adopted on November 11, 2012.

JI-23

May 16, 1990

SYLLABUS

A judge is automatically disqualified from presiding over a case or proceeding in which one of the lawyers is an announced candidate for that judge's position in a forthcoming election.

A judge is not automatically disqualified from hearing a case conducted by a lawyer simply because it is rumored the lawyer may be a candidate for that judge's position. The judge should raise the issue to the parties and proceed unless any of the parties reasonably and in good faith questions the judge's impartiality and formally requests that the judge be disqualified.

References: MCJC 2A, 2B, 3C; JTC A/O 103; MCR 2.003(A), (B)(2).

TEXT

A district court judge asks whether to recuse in cases where the local prosecuting attorney has announced candidacy for the judge's office in the forthcoming elections. The judge is also concerned about other lawyers who are rumored to likewise be interested in the judge's office but have not announced.

Insofar as relevant, MCJC 2A and 2B state:

1. Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety . . . .

2. A judge should respect and observe the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary."

MCJC 3C states in relevant part:

"C. Disqualification: A judge should raise the issue of his disqualification whenever he has cause to believe that he may be disqualified under GCR 1963, 405."

The successor rule of GCR 1963, 405 (later 912) is MCR 2.003 which in pertinent part states:

"(A) Who may raise. A party may raise the issue of a judge's disqualification by motion, or the judge may raise it.

"(B) Grounds. A judge is disqualified when the judge cannot impartially hear a case, including a proceeding in which the judge

". . .

"(2) is personally biased or prejudiced for or against a party or attorney . . . ."

There is a potential for abuse in this situation because the judge may be perceived to make certain rulings from the bench solely to embarrass the opponent, even though that is not the judge's intent.

The Judicial Tenure Commission has addressed this concern previously. In JTC A/O 103 the Commission concluded that "a judge should disqualify himself or herself under such circumstances since the probability of bias is sufficiently great to create the appearance of impropriety even though no actual prejudice or bias is shown."

Such a position continues to ensure the neutrality of the judicial process and protects against the possibility that a judge may, because of political self-survival, administratively process the litigation in such a way as to benefit a criminal defendant over the prosecutor-candidate. Similarly, viewed from the other side, the recent publication Becoming a Judge: Ethics and Campaign Practices states at page 32:

"The fact of the lawyer's candidacy may raise conflicts which require disqualification in certain cases. A lawyer candidate should not appear before the judge the candidate is opposing in the election, nor take a case where the opposing counsel is a member of the candidate's campaign committee." Collected references at page 35.

Accordingly, a judge should recuse in any matter where one of the parties is represented by a lawyer who is an announced candidate for the office held by the judge. This conclusion avoids any perception that the judge could embarrass the lawyer-candidate and thus gain a political advantage, or conversely any attempt to bend over backwards to avoid such interpretation may not render justice to the other party involved. Either way presents a no-win situation which disqualification will avoid.

When a party is represented, however, by a lawyer who is rumored to be interested in the judge's job but has not yet announced, if the judge feels that because that lawyer will be a rival to the judge's job the judge cannot impartially hear the case, the judge must recuse.

The Committee does not believe that a judge should be automatically disqualified in a proceeding when the other lawyer is not formally announced as a candidate for that office. The electorate has placed that judge on the bench to serve the people of that district and until rumored candidates solidify their plans and declare, a judge should not be forced to deny elected service to the public on expectancy or rumor. To require disqualification would be too chaotic and create a vehicle for disgruntled or ill-intentioned lawyers to rid themselves of a judge not of their particular choosing and could result in a judge being disqualified from presiding over virtually every case brought before that bench. The result in the absence of actual prejudice would be delay and inconvenience to the parties and in any one-judge district may require onerous and expensive special arrangements.

Therefore, the Committee feels that if the party is represented by an unannounced candidate who may interfere with the judge's impartiality then the judge should recuse. If it does not, then the judge should raise the issue. Actual judicial impartiality may be unaffected in such circumstances, but the spectre of the political contest between the lawyer and the judge may cast a shadow over the judge's decisions affecting the parties' rights. We believe disclosure and consent would remove that spectre and in the absence of a reasonable and good faith challenge to the judge's impartiality the judge should continue to preside over such a proceeding.