This opinion was withdrawn by the Standing Committee on Judicial Ethics on January 31, 2014.
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.
April 9, 1990
A juvenile court referee may run for election to the public school board if (a) the organization is unlikely to appear before the judge, (b) the organization is not regularly engaged in adversary proceedings in any court, (c) the referee does not use the prestige of office for personal interests, (d) the participation on the school board does not reflect adversely on the referee's impartiality, and (e) the school board is outside the district in which the referee serves as referee.
References: MCJC 2, 5B, 7A(3); J-1, J-3, JI-10; MCR 2.003(B), 9.201(2), 9.205; ABA Op. 195; Underwood v. McDuffee, 15 Mich 361 (1867). CI-998 is superseded to the extent inconsistent with this opinion.
A nonlawyer juvenile court referee asks whether a referee may seek election to the local public school board and remain referee if successful as a school board candidate. The school board is not in the same district in which the inquirer serves as referee.
A juvenile court referee is a "judge" for purposes of the jurisdiction of the Judicial Tenure Commission, MCR 9.201(2) (1963), and is bound by the standards of conduct in MCR 9.205, including the Michigan Code of Judicial Conduct. In JI-10, applying MCJC 7A(3), the Committee held that a judicial district court magistrate could not simultaneously hold the magistrate's office and the office of township clerk. However, in CI-998, after noting MCJC 7A(3), the Committee concluded that a Friend of the Court referee is not a position of "judicial power," because the referee makes no binding orders or judgments, Underwood v. McDuffee, 15 Mich 361 (1867). The Friend of the Court referee was not required to resign as referee before seeking office as county prosecutor, although the referee would be required to resign as referee if the political campaign were successful.
MCJC 7A(3) states:
"A judge should resign his office before he becomes a candidate either in a party primary or in a general election for non-judicial office."
The school board position is a "non-judicial office" but there is no "party primary" or "general election;" the school board election is not held at the same time as political elections. It is not clear whether a school board election is one contemplated under MCJC 7A(3).
ABA Formal Opinion 195 states that a judge must resign upon becoming a candidate for an elective non-judicial office, and that it is immaterial that the election is deemed non-partisan. The ABA Model Code of Judicial Conduct Canon 7A(3) states:
"A judge should resign his office when he becomes a candidate either in a party primary or in a general election for a non-judicial office, except that he may continue to hold his judicial office while being a candidate for election to or serving as a delegate in a state constitutional convention, if he is otherwise permitted by law to do so."
Thode, E. Wayne, Reporter's Notes to Code of Judicial Conduct, American Bar Association, 1973, states in regard to the Model Code language:
"The general standard in canon 7A(3) was taken from old Canon 30. The avoidance of the appearance of impropriety or of trading on the prestige and dignity of the judicial office, and the fear of involving the court in political controversy are sound reasons for the resignation requirement. [Citation.] An exception was made concerning state constitutional conventions because the Committee believed that a judge should not be prevented from being a candidate for or a delegate to a state constitutional convention if he is otherwise permitted by law to do so," at p. 97.
Canon 30 stated in part: ". . . While holding a judicial position he should not become an active candidate either at a party primary or at a general election for any office other than a judicial office. If a judge should decide to become a candidate for any office not judicial, he should resign in order that it cannot be said that he is using the power or prestige of his judicial position to promote his own candidacy or the success of his party . . . ."
The Michigan Code does not include the ABA exception, and therefore the Michigan prohibition is stronger. The history of the Michigan Code of Judicial Conduct shows that the proposal before the Michigan Supreme Court stated:
"Canon 7A(3): A judge should resign his office upon nomination as a candidate for federal elective office."
In an August 27, 1974 letter from the State Bar commenting on the proposal it was recommended and argued as follows:
"A judge should resign his office when he becomes a candidate either in a party primary or general election for a nonjudicial office, except that he may continue to hold his judicial office while being a candidate for election to or serving as a delegate to a State constitutional convention, if he is otherwise permitted by law to do so.
"The [State Bar Board of Commissioners] strongly supports the thrust of this section which is predicated upon the conclusion that a judge should not involve his judicial office in contested political election campaigns. We are unable, however, to recognize any valid distinction between a primary and a general election or contests for federal and non-federal offices which would support the section as proposed. Further, it is our experience that primary and state elections are often as or more bitter than general or federal elections. We, therefore, oppose the modifications in the ABA Code proposed and urge the adoption of the ABA recommendation."
The Court adopted the Bar's recommendation in substantial part. Taken together, the histories of the ABA Model Code and the Michigan Code show that MCJC 7A(3) contemplates only political elections. We do not believe MCJC 7A(3) requires the referee to resign before becoming a candidate for the school board.
MCJC 5B permits a judge to serve as an officer, director, trustee, or nonlegal advisor of a bona fide educational or civic organization if it is unlikely the organization will be engaged in proceedings before the judge, or will be regularly engaged in adversary proceedings in any court, J-1, J-3. If the school board is not in the same district in which the inquirer serves as referee, it is unlikely persons connected with the school board will come before the referee. We do not see any inherent conflict or appearance of impropriety which would reflect on the referee's impartiality, MCJC 2A; MCR 2.003(B). If the referee campaigns without designating the judicial office, the prestige of the office is not used for advancing personal interests in contravention of MCJC 2C.