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 27, 1992
A judge may not sign a resolution which requests specific action be taken by the mayor and county board of commissioners regarding business closings of a local employer and the union workers it employs.
References: MCJC 1, 2C, 3A(6), 4, 5B, 5G.
A local employer has announced plant closings which will result in loss of jobs for many local citizens. The employees' union has asked the circuit court judges to sign a "Resolution in Support of Keeping [Employer's] Jobs in [Town]," which states:
"Whereas jobs and economic development are vital to the Economic Revitalization of [the] County; and
"Whereas the Community is frustrated about the continued loss of [Employer] jobs; and
"Whereas keeping good paying [Employer] jobs is crucial to our long term economic and social health; and
"Whereas our long term economic and social health also depends upon a healthy working relationship between [Employer] and its [Union]; and
"Whereas we want to encourage frank and open discussion of complex community issues; and
"Whereas there is a clear need to better understand what caused the painful, announced closing of [Employer's plant] and the loss of 4,036 jobs;
"THEREFORE, WE, THE UNDERSIGNED, DO HEREBY RESPECTFULLY REQUEST:
- The Mayor of [City] and the Chair of the [County Board of Commissioners] to jointly create a broad based [Task Force]. The membership should include representatives from our diverse community; and
- This Task Force should work cooperatively with both [Employer] and [Union] so that the community can more fully understand the long term needs of both [Employer] and [Union]; and
- That the community send a letter asking [Employer] to reconsider its announced closing of the [plant] and respectfully request the [Employer] and [Union] make every reasonable effort to maintain employment in our community because of the [Employer's] impact on our community; and
- This Jobs Task Force should consider the needs of our entire community; and
- We respectfully request that this [Task Force] prepare a report and recommendations for future action for this Board to consider as soon as possible."
A judge asks whether it is ethical to sign such a resolution.
MCJC 3A(6) states:
"A judge should abstain from public comment about a pending or impending proceeding in any court and should require a similar abstention on the part of court personnel subject to his direction and control. This subsection does not prohibit a judge from making public statements in the course of his official duties or from explaining for public information the procedures of the court or his holdings or actions." Emphasis added.
The text of the Resolution reveals that there is much controversy in the community regarding the Employer's plant closing, and that over 4,000 workers and their families will be affected. It is reasonable to conclude that there may be litigation arising from the matter. Therefore, a judge should not sign a resolution which is intended to be disseminated to instigate others to action, which would clearly be a "public comment" about "impending proceedings" before a court.
MCJC 1 requires that a judge "participate in establishing, maintaining, and enforcing, and should himself observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved." The rationale behind this standard is articulated in Shaman, Lubet, Alfini, Judicial Conduct and Ethics, Michie Company, 1990, page 274-275.
"In a democracy, the enforcement of judicial decrees and orders ultimately depends upon public cooperation. The level of cooperation, in turn, depends upon a widely held perception that judges decide cases impartially. This is one meaning of the frequently used phrase 'confidence in the judiciary.' If this confidence were lost, the judicial system could not function. Should the citizenry conclude, even erroneously, that cases were decided on the basis of favoritism or prejudice rather than according to law and fact, then regiments would be necessary to enforce judgments. Consequently, judges are called upon to avoid all activity that so much as suggests that their rulings are tempered by favoritism or self-interest. This is a prophylactic measure that goes beyond the need for judges to recuse themselves from cases in which they actually have a stake or interest. Rather, the goal of the policy is to prohibit judges from engaging in certain activities that are deemed inherently inconsistent with the appearance of impartiality."
The wording of the Resolution is not neutral and impartial; it characterizes the community mood as "frustrated" and the plant closing as "painful," concludes that keeping this Employer's jobs is "crucial," and seeks to force the Employer, a private corporation, to engage in public discussions to justify its actions. The entire thrust of the Resolution is to pre-judge the nature of the situation without receiving evidence and without hearing from the Employer's point of view. For a judge to sign the Resolution would be showing favoritism and bias for the Union position.
Ethics opinions addressing judicial campaign conduct have held that a judge should not express a partisan or specific opinion on issues, since the expression of the opinion may be grounds for recusal of the judge if a similar matter comes before the judge. A judge may be less able to render a fair and unbiased decision on an issue that comes before the judge if the judge has publicly committed himself/herself to a course of conduct or policy. C-237, C-222.
MCJC 2C provides: "A judge should not allow his family, social, or other relationships to influence his judicial conduct or judgment. He should not use the prestige of his office to advance the business interests of himself or others . . ." The judges are not being asked to individually endorse the Resolution because they have particular interest in or knowledge of the issues; it seems clear that all judges of the circuit court are being asked to endorse the Resolution solely because they are judges, and the prestige of the judicial office will bring great pressure to bear on behalf of the Resolution supporters. Use of the judicial office for such purposes is prohibited.
MCJC 4C outlines certain specific activities in which judges may participate, and in fact are encouraged to participate. These activities are limited to those involving "improvements 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." MCJC 5G states:
"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 . . . ."
This Canon is identical to that of the 1972 ABA Model Code of Judicial Conduct. E. Wayne Thode's, Reporter's Notes to Code of Judicial Conduct, American Bar Association/American Bar Foundation, 1973, states on page 91:
"The Committee adopted the view that the time and prestige of the judiciary should not be expended on the resolution of non-judicial public issues. Its reasoning is set forth in the Commentary."
The Commentary to 1972 ABA Model Code of Judicial Conduct Canon 5G states:
"Valuable services have been rendered in the past to the states and the nation by judges appointed by the executive to undertake important extra-judicial 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 extra-judicial 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.
Although this inquiry does not involve a judge's appointment to a board or continuing activity regarding the Resolution, the rationale behind MCJC 4 and MCJC 5G are relevant to this situation. The subject matter of the Resolution is not "the law, the legal system or the administration of justice"; the Resolution addresses the private and civic interests of the community, not judicial matters. That the Resolution requests action from the mayor and county board of commissioners would appear to contravene MCJC 4B, which allows a judge to appear at public hearings or consult with executive bodies on matters concerning the law, the legal system and the administration of justice.
MCJC 5B allows a judge to participate in civic and charitable activities "that do not reflect adversely upon his impartiality or interfere with the performance of his judicial duties . . . ." Wording in the Resolution which emphasizes the "community" does not in and of itself make signing the Resolution a "civic" activity; intervention in the management decisions of a local business and support of union interests regarding a particular employer are not "civic" activities within the scope of the Canon. Even if signing the Resolution could somehow be construed as a "civic activity," participation is prohibited since the Resolution does reflect adversely on impartiality and does interfere with performance of judicial duties.
Therefore, it is not ethical for a judge to sign the Resolution.