Introduction to Judicial Ethics

The purpose of this publication is to provide a guide to judicial ethics in Michigan. Each chapter corresponds to a judicial canon, and is organized by sources of authority deriving from Michigan Supreme Court opinions, Judicial Tenure Commission case summaries, and State Bar of Michigan ethics opinions. The text of each chapter is organized by topic and subtopic headings under each source of authority.

MCR 9.202 sets out the Standards for Judicial Conduct as follows:

(A) Responsibility of Judge. A judge is personally responsible for the judge’s own behavior and for the proper conduct and administration of the court in which the judge presides.

(B) Grounds for Action. A judge is subject to censure, suspension with or without pay, retirement, or removal for conviction of a felony, physical or mental disability that prevents the performance of judicial duties, misconduct in office, persistent failure to perform judicial duties, habitual intemperance, or conduct that is clearly prejudicial to the administration of justice. A judge may not be ordered to pay the costs, fees, and expenses incurred by the commission in prosecuting the complaint.

(1) Misconduct in office includes, but is not limited to:

(a) persistent incompetence in the performance of judicial duties;

(b) persistent neglect in the timely performance of judicial duties;

(d) treatment of a person unfairly or discourteously because of the person’s race, gender, or other protected personal characteristic;

(e) misuse of judicial office for personal advantage or gain, or for the advantage or gain or another; and

(f) failure to cooperate with a reasonable request made by the commission in its investigation of a respondent.

(2) Conduct in violation of the Code of Judicial Conduct or the Rules of Professional Conduct may constitute a ground for action with regard to a judge, whether the conduct occurred before or after the respondent became a judge or was related to judicial office.

(3) In deciding whether action with regard to a judge is warranted, the commission shall consider all the circumstances, including but not limited to the age of the allegations and the possibility of unfair prejudice to the judge because of the staleness of the allegations or unreasonable delay in pursuing the matter and whether respondent has corrected the behavior.

Regarding judicial misconduct, the Michigan Supreme Court has instructed that, “everything else being equal:

(1) misconduct that is part of a pattern or practice is more serious than an isolated instance of misconduct;

(2) misconduct on the bench is usually more serious than the same misconduct off the bench;

(3) misconduct that is prejudicial to the actual administration of justice is more serious than misconduct that is prejudicial only to the appearance of impropriety;

(4) misconduct that does not implicate the actual administration of justice, or its appearance of impropriety, is less serious than misconduct that does;

(5) misconduct that occurs spontaneously is less serious than misconduct that is premeditated or deliberated;

(6) misconduct that undermines the ability of the justice system to discover the truth of what occurred in a legal controversy, or to reach the most just result in such a case, is more serious than misconduct that merely delays such discovery;

(7) misconduct that involves the unequal application of justice on the basis of such considerations as race, color, ethnic background, gender, or religion are more serious than breaches of justice that do not disparage the integrity of the system on the basis of a class of citizenship.” In re Brown, 461 Mich 1291, 1292-1293 (2000).

“[M]isconduct may be proven by evidence of an accumulation of small and ostensibly innocuous incidents which, when considered together, emerge as a pattern of hostile conduct unbecoming a member of the judiciary.” In re Moore, 464 Mich 98, 132 (2001) (quotation marks and citations omitted). “The vast majority of misconduct found by the Judicial Tenure Commission is not fatal; rather, it reflects oversight or poor judgment on the part of a fallible human being who is a judge.” In re Justin, 490 Mich 394, 424 (2012) (quotation marks and citation omitted). “The power to discipline a judge resides exclusively in [the Michigan Supreme Court], but it is exercised on recommendation of the [Judicial Tenure Commission].” Id. at 413. “The purpose of these proceedings is not to impose punishment on the respondent judge, . . . but to protect the people from corruption and abuse on the part of those who wield judicial power.” In re James, 492 Mich 553, 569 (2012) (quotation marks and citation omitted). “In determining appropriate sanctions, [the Michigan Supreme Court] seek[s] to restore and maintain the dignity and impartiality of the judiciary and to protect the public.” Id (quotation marks and citation omitted).

Regarding the disciplinary process, if the evidence following an investigation shows that something is ethically amiss, the Judicial Tenure Commission takes one of three types of private action or recommends that the Michigan Supreme Court take some combination of three types of public action.

Private actions undertaken by Judicial Tenure Commission:

•Dismiss with explanation. In general, the evidence does not clearly show that the judge violated any Canons, but it also shows that there is something ethically problematic occurring; or it appears that the judge may be unaware of an ethical line, even though the judge did not actually cross it; or the judge came very close to crossing an ethical line; or perhaps the evidence shows that there was a minor and unintentional Canon violation. The JTC will dismiss the investigation in a letter that explains the potentially problematic behavior, so the judge is alerted to it for the future.

•Dismiss with caution. In general, the evidence shows that the judge violated a Canon, but perhaps did so unintentionally, or the violation is minor or isolated. The JTC will dismiss the investigation in a letter that explains what the JTC found problematic and caution the judge not to engage in that behavior in the future.

•Dismiss with admonition. In general, the evidence shows that the judge violated one or more Canons in a way that had a negative impact, or perhaps the violation is not isolated, and the situation is such that the judge should have known better. The JTC will dismiss in a letter that admonishes the judge to cease the behavior at issue. An admonition is intended to communicate that the ethical violation was more serious than a caution, and that the JTC was perhaps close to bringing a public complaint.

Public actions recommended by Judicial Tenure Commission and undertaken by Michigan Supreme Court:

•Recommend public censure. This is the least serious action that the JTC can recommend that the Supreme Court take, usually in conjunction with one of the additional sanctions listed below. Note: while recommending private censure is an available option, it is not something exercised in practice.

•Recommend suspension with or without pay. The period of suspension can be for any duration. In general, the JTC recommends suspension without pay for sustained and serious misconduct, or for particularly flagrant and impactful misconduct, or for conviction of a misdemeanor.

•Recommend retirement. The JTC may recommend that the judge retire.

•Recommend removal. The JTC may recommend, pursuant to Const 1963, art 6, § 30(2), removal of a judge for conviction of a felony, physical or mental disability which prevents the performance of judicial duties, misconduct in office, persistent failure to perform their duties, habitual intemperance, or conduct that is clearly prejudicial to the administration of justice. The JTC recommends removal for the most serious violations, often including false statements under oath during the JTC investigation or another proceeding, a serious of other false statements, or other egregious conduct.

Note: A judge’s resignation terminates the JTC’s jurisdiction, and at that point, the JTC can elect to refer its investigative materials to the Attorney Grievance Commission for its consideration with respect to the judge’s license to practice law. An amendment to MCR 9.116 is currently pending which would “allow the Attorney Grievance Commission to initiate disciplinary proceedings against a former judge who, but for his or her departure from the bench, would have been removed from office based on misconduct that was the subject of judicial disciplinary proceedings.” Staff Comment to ADM File No. 2021-11, issued March 9, 2022.

A Note on the Michigan Rules of Professional Conduct. “[J]udges are also lawyers and subject to the Michigan Rules of Professional Conduct to the extent the Code of Judicial Conduct is not inconsistent with the Rules.” State Bar of Michigan Ethics Opinion, JI-26, June 29, 1990. Where the MCJC “contains no explicit judicial directive pertaining to” a particular situation, the MRPC controls; “[i]t is professional misconduct for a lawyer or a judge to violate or attempt to violate the Rules of Professional Conduct or knowingly assist or induce another to do so.” Id.