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.

JI-67

March 30, 1993

SYLLABUS

A judge may sit as a member of an independent law revision commission providing information and assistance to the Legislature so long as the duties of the commission are limited to the improvement of the law, the legal system, or the administration of justice and so long as the membership on the committee does not interfere with the proper performance of judicial duties.

References: MCJC 2B, 4B, 4C, 5G.

TEXT

A judge has been asked to serve as a member of the Law Revision Commission. The Commission is charged with the following:

1. Examine the common law and statutes of this state and current judicial decisions for the purpose of discovering defects and anachronisms in the law and recommending needed reforms.
2. Receive and consider proposed changes in the law recommended by the American Law Institute, the National Conference of Commissioners on uniform State Laws, a bar association, or other learned bodies.
3. Receive and consider suggestions from justices, judges, legislators, public officials, lawyers, and the public generally as to defects and anachronisms in the law.
4. Recommend changes in the law it considers necessary in order to modify or eliminate antiquated and inequitable rules of law, and bring the law of this state into harmony with modern conditions.
5. Report its findings and recommendations to the legislative council and annually, before January 2 each year, to the legislature. If the commission considers it advisable, it shall accompany its report with proposed bills to implement the recommendations."

The judge asks whether it is ethically proper for a judge to serve on the Commission. MCJC 2B states:

"B. 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." Emphasis added.

MCJC Canon 4 states in part:

"As a judicial officer and person specially learned in the law, a judge is in a unique position to contribute to the improvement of the law, the legal system, and the administration of justice, including revision of substantive and procedural law and improvement of criminal and juvenile justice.

. . .

2. He may appear at a public hearing before an executive or legislative body or official on matters concerning the law, the legal system, and the administration of justice, and he may otherwise consult with such executive or legislative body or official on such matters.

3. He may serve as a member, officer, or director of an organization or governmental agency devoted to the improvement of the law, the legal system, or the administration of justice. He may assist such an organization in raising funds and may participate in their management and investment, but should not individually solicit funds. He may make recommendations to public and private fund granting agencies on projects and programs concerning the law, the legal system, and the administration of justice."

MCJC 5G states:

"G. Extrajudicial Appointments: 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. A judge, however, may represent his country, state, or locality on ceremonial occasions or in connection with historical, educational, and cultural activities."

It is clear that a judicial officer is required not only to promote confidence in the integrity and impartiality of the judiciary but also to bear the burden of contributing to the improvement of the law, the legal system and the administration of justice, including the revision of substantive and procedural law and improvement of criminal and juvenile justice. At MCJC 4B a judicial officer is authorized to consult with the executive or legislative body or official on such matters, and at MCJC 4C a judicial officer is authorized to be a member of an organization or governmental agency devoted to the improvement of the law, the legal system or the administration of justice.

The Commission's Annual Report to the Legislature for 1991 states:

"The problems to which the Commission directs its studies are largely identified through an examination by the Commission members and the executive Secretary of the statutes and case law of Michigan, the reports of learned bodies and commissions from other jurisdictions, and legal literature. Other subjects are brought to the attention of the Commission by various organizations and individuals, including members of the legislature."

The Commission's efforts during the past year have been devoted primarily to three areas. First, Commission members provided information to legislative committees relating to various proposals previously recommended by the Commission. Second, the Commission examined suggested legislation proposed by various groups involved in law revision activity. These proposals included legislation advanced by the Council of State Governments, the National Conference of Commissioners on Uniform State Laws, and the law revision commissions of various jurisdictions within and without the United States (e.g., California, New York, and British Columbia). Finally, the Commission considered various problems relating to special aspects of current Michigan law suggested by its own review of Michigan decisions and the recommendations of others.

As in previous years, the Commission studied various proposals that did not lead to legislative recommendations. In the case of certain uniform or model acts, the Commission found that the subjects treated had been considered by the Michigan Legislature in recent legislation. In other instances, uniform or model acts were not pursued because similar legislation was currently pending before the Legislature upon the initiation of legislators having a special interest in the particular subject.

Further, the current study agenda of the Commission includes the following items or areas:

1. Assumed Names (statewide registration by individuals and partnerships)
2. Usury Statutes
3. Declaratory Judgment in Libel Law
4. Medical Practice privileges in Hospitals (procedures for granting and withdrawal)
5. Health Care Consent for Minors
6. Health Care Information, Access and Privacy
7. Public Officials-Conflict of Interest and Misuse of Office
8. Reproduction Technology
9. Elimination of References to Abolished Courts
10. Uniform Anatomical Gift Act
11. Uniform Premarital Agreement Act.
12. Uniform Trade Secrets Act
13. Uniform Real Estate Tax Apportionment Act
14. Uniform Putative and Unknown Fathers Act
15. Uniform Custodial Trust Act
16. Uniform Commercial Code-Proposed Amendments for Article 6
17. Laws Addressing the Posers of County Executives
18. Implementation of Report on Judicial Review of Administrative Action
19. Tortfeasor Contribution under MCL 2925a(5)
20. Conference Call Participation in Public Meetings.

The subjects to be considered by the Law Revision Commission all clearly impact and will improve the law, the legal system or the administration of justice-a function clearly permitted by MCJC 5G. The commentary to the 1972 ABA Model Code of Judicial Conduct regarding 5G in recognition of judicial contributions to the law, the legal system and the administration of justice and to the need of balancing the needs of the court and judicial time states:

"Valuable services have been rendered in the past to the states and the nation by judges appointed by the executive to undertake important extrajudicial assignments. The appropriateness of conferring these assignments on judges must be reassessed, however, in light of the demands on judicial manpower created by today's crowded dockets and the need to protect the courts from involvement in extrajudicial matters that may prove to be controversial. Judges should not be expected or permitted to accept governmental appointments that could interfere with the effectiveness and the independence of the judiciary." Emphasis added.

There is no indication that the work on the Law Revision Commission detracts from or impedes the administration of justice.

The statute establishing the Law Revision Commission and its report demonstrate clearly that the Commission's function is to provide information on the law, the legal system and the administration of justice to aid the legislature in its function as required by the Constitution. The Commission members exercise no legislative power and thus the Commission does not violate Article III Section 2 as there is no breach of the separation of powers.

Thus, there is no prohibition which would ban a judicial officer from sitting as a member of an independent law revision commission which provides information and assistance to the legislature regarding the improvement of the law, the legal system or the administration of justice, subject only to considerations of time and its impact on judicial efficiency which could interfere with the effectiveness and independence of the judiciary, but rather it is clear that a judge may sit as a member of an independent law revision commission providing assistance to the legislature in an effort to improve the law, the legal system and the administration of justice.