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-86

March 23, 1994

SYLLABUS

It is not unethical for a circuit judge, district court magistrate and a deputy sheriff working in the same county to co-own recreational real estate property. The circuit judge and the district court magistrate should disclose the investment to parties and counsel when the deputy sheriff appears as a witness in a pending matter. When the circuit judge reviews decisions of the magistrate, the judge should disclose the investment to parties and counsel.

References: MCJC 1, 2B, 3C, 5C; J-4, J-6; MCR 2.003(B).

TEXT

A judge inquires into the ethical propriety of the co-ownership of realty property. Five individuals, including a circuit court judge, a district court magistrate and an individual who is likely to be appointed deputy sheriff in the same county, jointly own a cabin and acreage used by them for recreational purposes. In fulfilling official duties as deputy sheriff, one co-owner may appear as a fact witness either before the magistrate or the circuit judge. Occasions arise when the circuit judge is asked to review decisions of the magistrate. The circuit is predominately rural, encompassing two counties served by two circuit judges.

The conduct of the circuit court judge and the district court magistrate is governed by the Michigan Code of Judicial Conduct. MCJC 1 requires judges to uphold the integrity and independence of the judiciary. MCJC 2B requires judges to respect and observe the law and to conduct themselves to promote public confidence in the integrity and impartiality of the judicial system. MCJC 3C encourages judges to raise the issue of disqualification whenever a judge has reason to believe that disqualification may be warranted by MCR 2.003(B). MCR 2.003(B) states that judicial disqualification arises whenever the judge cannot impartially hear a matter. MCJC 5C addresses judges financial transactions, including real estate investments. MCJC 5C states in part:

"(1) A judge should refrain from financial and business dealings that tend to reflect adversely on the judge's impartiality or judicial office, interfere with the proper performance of judicial duties, exploit the judicial position, or involve the judge in frequent transactions with lawyers or persons likely to come before the court on which the judge serves.

"(2) Subject to the requirements of C(1), a judge may hold and manage investments, including real estate, and engage in other remunerative activity, but should not serve as director, officer, manager, advisor, or employee of any business. Provided, however, with respect to a judge holding office and serving as an officer, director, manager, advisor, or employee of any business not prohibited heretofore by law or judicial canon, the effective date of the prohibition contained herein shall be the date of expiration of the judge's current judicial term of office.

"(3) A judge should manage investments and other financial interests to minimize the number of cases in which the judge is disqualified. As soon as it can be done without serious financial detriment, the judge should dispose of investments and other financial interests that require frequent disqualification.

. . . "

Whether or not a judge can impartially hear a case is a subjective standard requiring an evaluation of the particular facts and circumstances on a case by case basis. Judges are not expected to lead the life of a social hermit. In fact, extra judicial relationships and experiences likely enhance a judge's ability to perform the duties of judicial office. However, experience demonstrates that certain relationships present a high probability for bias and prejudice. Thus, the United States Supreme Court has disqualified judges without a showing of actual bias under circumstances where the risk of impartiality is too high to be constitutionally tolerable. One such situation is where the decision maker has a pecuniary interest in the outcome of the case. See Crampton v. Department of State, 393 Mich 347, 351 (1975). The Michigan Supreme Court also has addressed the issue of judicial disqualification arising out of a judge's financial ties to a law firm.

". . . We believe that where, as here, the judge's economic relationship with a law firm is more than de minimis, automatic disqualification required. Moreover, we believe that in matters in which a judge has a financial interest with an attorney appearing in the matter, the judge has a duty to disclose the relationship on the record and to recuse, unless the parties ask the judge to proceed . . . ." In re Disqualification of 50th District Court Judge, (On Remand); People v. Perkins, 193 Mich App 209, 214 (1992).

For a discussion of opinions in which the Committee concluded that judges were automatically disqualified from hearing cases involving the judges personal acquaintances and for financial relationships, see J-4 and J-6. The opinions requiring automatic disqualification or disclosure and recusal absent consent deal with close personal financial ties between the judge and an advocate or party appearing in a matter, presided over by the judge. In such cases, the judge's impartiality is brought into question since a decision for or against a party may affect the judge's ongoing financial arrangements with a party, or the party's advocate. When the instances of recusal become too frequent, divestiture of the judge's personal financial interests is required. MCJC 5C(3).

In contrast to the situation where a party, or an advocate for a party, having financial ties to the judge appears in a proceeding presided over the judge, there is much less cause for concern where a witness with a financial relationship to the judge is called upon to testify in a totally unrelated matter. Where neither the judge nor the witness have any personal financial interest in the outcome of the matter, the likelihood for judicial impartiality should not be present. A judge's personal friendship and financial ties with a witness is not, in itself, sufficient to require recusal. Therefore, the Committee finds no reason to per se disqualify the judge or the magistrate solely because a witness testifying in a pending matter has an unrelated financial investment with the judge or magistrate. Judges are capable of setting aside personal relationships in order to fairly and impartially adjudicate a case on the merits of evidence presented. The Committee does not believe that the judge or the magistrate become incapable of evaluating the deputy sheriff's credibility as a fact witness simply because the judge and the deputy sheriff are joint owners of recreational property.

Similarly, a circuit judge is not per se disqualified from reviewing decisions of a district court magistrate solely on the basis of their common ownership of land and building. There is no presumption that the judge's friendship or financial ties with the magistrate has created actual bias or the appearance of bias requiring recusal. The result should be no different in cases where the circuit judge, deputy sheriff and magistrate are all involved in the same proceeding unrelated to their common investment.

Having determined that there is no per se disqualification, should the judge raise the issue of disqualification by disclosure on the record of the common ownership whenever the deputy sheriff appears as a witness in proceedings conducted by the judge or on the judge's review of decisions rendered by the district court magistrate? MCJC 3C encourages judges to raise the issue of disqualification whenever a judge has cause to believe that disqualification may be warranted by MCR 2.003(B) which says that judicial disqualification arises whenever a judge cannot impartially hear a matter. Acquaintanceship coupled with a financial interest in commonly owned property may raise issues of disqualification.

In JI-51, concerning a judge's responsibility to disclose membership on a legal services board when a lawyer working for the organization appears before that judge, the Committee stated:

"Whether in all instances the judge must raise the issue of disqualification by a disclosure of the legal aid directorship is less clear. At all times judges must conduct themselves in a manner that promotes public confidence in the integrity and impartiality of the judiciary. MCJC 2B. A judge's friends, social and business acquaintances, and colleagues from clubs and civic and religious organizations of which a judge may be a member, are likely to enhance the judge's ability to make informed decisions. Unfortunately, those same experiences may affect the judge's impartiality and give rise to conflicts of interest. The judge may have little or no perception of being influenced by conflicting considerations."

Therefore when the deputy sheriff appears as a witness in proceedings conducted by the judge or the magistrate, and when the judge is reviewing decisions of the magistrate, the presiding adjudicator (judge or magistrate) should disclose the relationship.