JI-122

May 13, 1999

SYLLABUS

A judge whose spouse is the Secretary of State is not automatically disqualified from hearing routine driver's license sanction and/or restoration matters and need not disclose his or her relationship to the Secretary of State to the parties or their lawyers in such cases. A judge whose spouse is the Secretary of State may be disqualified from hearing matters where the Secretary of State is a party, or is likely to be a material witness, depending upon the nature of the proceeding and the interests of the Secretary of State in the outcome. A judge whose spouse is the Secretary of State may in all cases ask the parties and their lawyers to consider, out of the presence of the judge, whether to waive any basis for disqualification, other than a personal bias or prejudice concerning a party, and consent to the judge presiding over the case. References: MCJC 2A; MCR 2.003; J-6; JI-101.

TEXT

A judge has recently been appointed to a Circuit Court Bench. The judge's spouse is the elected Secretary of State. The State Department of Michigan Government is headed by the elected Secretary of State. Therefore, all court matters involving the Department of State, or the Secretary of State in particular, arguably involve a situation where the judge's spouse is a "party" to the action.

As a Circuit Court judge, the inquiring judge can reasonably be expected to be assigned numerous routine driver's license matters under the Michigan Vehicle Code. These would include matters involving driver's license sanctions, appeals from the District Court involving driver's license sanctions, driver's license restoration petitions, etc. The inquiring judge desires guidance on his ability to preside over such cases in view of the requirements of MCR 2.003 and MCJC 2A.

In addition to the routine driver's license matters, there are any other types of matters that are likely to come before the judge involving the Department of State or the Secretary of State in particular. The inquiring judge also seeks guidance regarding his ability to preside over such matters.

MCR 2.003(B) provides in relevant part as follows:

(B) Grounds. A judge is disqualified when the judge cannot hear a case, including but not limited to instances in which:

. . .

(5) The judge knows that he or she, individually or as a fiduciary, or the judge's spouse, parent or child wherever residing, or any other member of the judge's family residing in the judge's household has an economic interest in the subject matter in controversy or in a party to the proceeding or has any other more than de minimus interest that could be substantially affected by the proceeding;

(6) The judge or the judge's spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

(a) is a party to the proceeding, or an officer, director or trustee of a party;

. . .

(c) is known by the judge to have more than de minimus interest that could be substantially affected by the proceeding;

(d) is to the judge's knowledge likely to be a material witness in the proceeding.

In addition to the provisions of MCR 2.003(B) quoted above, MCJC 2A provides:

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

The Michigan Department of State issues Michigan drivers' licenses. As a matter of form, therefore, all court proceedings involving driver's license matters (sanctions, restoration, etc.) name the "Secretary of State" as the respondent. In these situations, the office of the Secretary of State is at best a formal or nominal party. In no real sense could it be said that the actual office holder, in this case the Secretary of State, has a personal interest in the outcome of the proceedings. To hold that the Secretary of State is a "party" within the meaning of MCR 2.003(B)(6), under these circumstances, would in the view of this Committee, elevate form over substance. Therefore, it is the opinion of this Committee that, since the "Secretary of State" is at best a nominal or formal party to all such routine driver's license proceedings, the judge need not make disclosure of his relationship to the elected Secretary of State and that the disqualification provisions of MCR 2.003 are simply not implicated in this situation. Nor is there an appearance of impropriety when the judge presides over a case of that nature.

It is the opinion of the Committee that this matter is distinguishable from the situation presented in JI-101, which involved a situation where the judge's spouse was an assistant prosecuting attorney practicing in the very court in which the judge was presiding. The analysis in that opinion was that the prosecutor's office should be viewed as a "firm," and since the judge's spouse was a "member" of that "firm," it was the decision of the Committee that such relationship must be disclosed to the parties, and that the judge must disqualify himself or herself unless the parties voluntarily request the judge to proceed to hear the matter. In addition, as a member of the prosecutor's office practicing in that court, that office as a whole clearly has more than a "de minimus" interest in the outcome of the proceeding, as the advocate for the people in the case at issue.

It should further be noted that JI-101 was issued on June 6, 1995, prior to the September 1, 1995 effective date of the Amendment to MCR 2.003. That Amendment added a new subsection (D) to MCR 2.003, which provides as follows:

Remittal of Disqualification. If it appears that there may be grounds for disqualification, the judge may ask the parties and their lawyers to consider, out of the presence of the judge, whether to waive disqualification. If, following disclosure of any basis for disqualification other than personal bias or prejudice concerning a party, the parties without participation by the judge, all agree that the judge should not be disqualified, and the judge is then willing to participate, the judge may participate in the proceedings. The agreement shall be in writing or placed on the record.

In view of this Amendment to MCR 2.003 in 1995, this Committee issued Formal Opinion J-6 on September 20, 1996. Formal Opinion J-6 addresses numerous prior opinions of the Committee concerning the issue of disqualification in view of the September 1, 1995 Amendment. As noted in great in detail in that Formal Opinion, all disqualification opinions issued prior to September 1, 1995 must be reconsidered in light of this Amendment.

As to other proceedings that may come before the judge involving the Department of State, or the Secretary of State itself, such other matters must be considered on a case by case basis. Whenever it may be said that the office of the Secretary of State has more than de minimus interest in the outcome of the proceeding, or is more than a formal or nominal party to the proceeding, or where the Secretary of State is likely to be a material witness, then the disqualification provisions of MCR 2.003(B) would be clearly implicated. In all such matters, the judge should, consistent with MCR 2.003(D), disclose the existence of the relationship to the parties and their attorneys, and offer the parties and attorneys the opportunity to consider the issue of disqualification outside the presence of the judge. In such circumstances, which must be evaluated on a case by case basis, a judge may well be required to disqualify himself unless requested to continue in accordance with the provisions of MCR 2.003(D).

As to matters involving routine driver's license issues, such as driver's license sanctions, restorations, etc., it is the opinion of this Committee that the "Secretary of State" is at best a nominal or formal party, and that the judge's spouse should not be considered a "party" to the proceeding within the meaning MCR 2.003. Therefore, in those routine matters, the Committee does not believe that the disqualification provisions of MCR 2.003 are implicated, the judge need not disclose the relationship to the parties or their attorneys, and does not require the consent of the parties to continue to preside over such matters.

In all other matters where the Department of State or the Secretary of State is a party, or where the Secretary of State is likely to be a material witness, in the event that the Secretary of State has more than a de minimus interest, and is not named as a mere formal or nominal party, then the provision(s) of MCR 2.003(B)(5) and (6) are implicated and the judge must make disclosure to the parties and their attorneys of the relationship. After having made such disclosure, if the judge feels that he can nevertheless proceed to hear the matter impartially, he can, consistent with the provisions of MCR 2.003(D) request the parties and their attorneys to consider remittal of the basis for disqualification and, if consent is obtained, proceed to hear the matter.