JI-62

December 12, 1992

SYLLABUS

Absent actual bias, a judge is not disqualified from presiding in a matter in which the employer of the judge's spouse is a witness or presents reports, when the work assignment of the judge's spouse does not involve participation in the preparation of the testimony or the reports.

References: MCJC 1, 2B, 3C; R-3; JI-57, JI-61; RI-119; C-216; MCR 2.003(B).

TEXT

A community mental health department regularly submits reports and requests to the local probate court concerning alleged mentally ill persons, and conducts evaluations of developmentally disabled persons and presents the results to the court in consideration of whether a guardian should be appointed. The spouse of the probate judge is an employee of the community mental health department, and works to find alternative placements for developmentally disabled persons. None of the work of the spouse would come before the probate court. The judge asks whether the judge is recused from matters in which the community mental health department makes recommendations, and whether disclosure of the spouse's employment is required.

MCJC 3C provides that a judge should raise the issue of disqualification whenever there is cause to believe the judge may be disqualified. MCR 2.003(B) provides that "a judge is disqualified when the judge cannot impartially hear a case . . . ." MCJC 1 requires judges to preserve the integrity and independence of the judiciary. MCJC 2B requires a judge to respect and observe the law and to behave at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

As noted in JI-57 and JI-61, there is no specific provision in court rules or ethics rules which addresses a judge's duty to raise a disqualification issue when the judge is otherwise acquainted with a witness. In JI-57 the Committee addressed whether a judge would be recused when a judicial colleague from the same bench appeared as a witness in a proceeding pending before the judge. It was determined that, absent facts which show actual bias, a judge is not disqualified from a matter in which the judge is personally acquainted with a witness if the judge is not the trier of fact, or if the acquaintance/witness is not a necessary witness concerning a contested fact. In JI-61, the Committee determined that absent actual bias, a judge is not disqualified from presiding in a matter in which a part-time police officer who will be called as a witness is also a probation officer with the judge's court.

Previous ethics opinions have suggested that a judge should notify parties and their counsel and recuse unless asked to proceed in matters in which a relative within the third degree of affinity or consanguinity is employed by a law firm appearing in the matter. R-3, RI-119, C-216. This requirement is derived from MCR 2.003(B)((5), which requires recusal when a relative of the judge within the third degree appears as the advocate in a matter. We note, however, that MCR 2.003(B)(5) addresses advocates and parties, but not witnesses.

In the present inquiry, the judge's spouse will not be a witness or presenter of reports to the probate court. The spouse's work assignment does not relate to the testimony and reports provided to the judge by the employing entity. Therefore, absent actual bias, notice is not required and the judge is not disqualified from presiding in a matter in which the employer of the judge's spouse is a witness or presents reports, when the work assignment of the judge's spouse does not involve participation in the preparation of the testimony or the reports.