JI-31

December 8, 1990

SYLLABUS

When a lawyer and the lawyer's spouse both serve as judicial officers, one spouse should not supervise the performance of or review judicial decisions of the other.

A judge's disqualification from reviewing decisions of the judge's spouse is not imputed to other members of the judge's court.

References: MCJC 1, 2A, 2C, 3B, 3C; R-3; MCR 2.003(B)(5).

TEXT

The Committee has been asked to consider the ethical implications, if any, of a lawyer seeking election or appointment to a judicial position when the lawyer's spouse currently holds a judicial position empowered to review the decisions of the judicial position which the lawyer seeks. In one instance a lawyer seeks election to district court when the lawyer's spouse sits on the circuit court; in another instance a lawyer is seeking appointment as Friend of the Court referee when the lawyer's spouse sits as circuit court judge.

We first address whether it would be proper for a judge to review decisions of the judge's spouse. MCR 2.003(B)(5) states:

"A judge is disqualified when the judge cannot impartially hear a case, including a proceeding in which the judge is within the third degree (civil law) of consanguinity or affinity to a person acting as an attorney or within the sixth degree (civil law) to a party; . . . ."

In R-3 we held further that when a judge's spouse was a member of the firm of record even though not appearing, the judge has an obligation to reveal the relationship and not preside in the matter unless both parties request the judge to continue, MCJC 3C. Thus a judge is presumed unable to impartially hear a case in which the spouse is involved. This is true whether the role of the spouse is as party, advocate, or, as here, the presiding official whose opinion or action is under review. A judge should not review decisions of a spouse.

Both spouses as judicial officers owe duties to the administration of justice to avoid any situation where the impartiality of the presiding judge or the fairness of judicial proceedings is called into question. The judge's recusal avoids the appearance that the judge is allowing family relationships to influence judicial conduct, MCJC 2C, avoids the appearance of impropriety, MCJC Canon 2, and upholds the integrity of the judicial system, MCJC Canon 1.

The judge's disqualification is not imputed to other members of the judge's court. Colleagues on the same court as the judge are not disqualified from reviewing actions of the judge's spouse. Cf., MRPC 1.8(i). Where a judge is part of a multi-judge panel or court reviewing the decision of the judge's spouse, the judge may abstain from participation in the matter without disqualifying the remaining presiding judges.

For similar reasons, a judge who has the power to appoint a judicial officer such as a referee or magistrate should not use that authority to appoint a spouse to a position where the judge must review or supervise the spouse's performance in office or where the judge must preside over matters in which the spouse presents recommendations or makes decisions. A judge should not exercise administrative responsibility in a way which increases the number of cases in which the judge will be disqualified, MCJC 3B, or which may be perceived as impacting the integrity of the judicial process or the independent judgment of the judge, MCJC 1. In practical terms, therefore, a judge should not supervise or otherwise direct or control the actions of a spouse, and should not preside over appeals or reviews of the decisions or recommendations of the judge's spouse.