Canon 3: A Judge Should Perform the Duties of Office Impartially and Diligently

“The judicial duties of a judge take precedence over all other activities. Judicial duties include all of the duties of office prescribed by law. In the performance of these duties, the following standards apply:

A. Adjudicative Responsibilities:

         (1) A judge should be faithful to the law and maintain professional competence in it. A judge should be unswayed by partisan interests, public clamor, or fear of criticism.

(2) A judge may require lawyers, court personnel, and litigants to be appropriately attired for court and should enforce reasonable rules of conduct in the courtroom.

(3) A judge should be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity, and should require similar conduct of lawyers, and of staff, court officials, and others subject to the judge’s direction and control.

(4) A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding, except as follows:

(a) A judge may allow ex parte communications for scheduling, administrative purposes, or emergencies that do not deal with substantive matters or issues on the merits, provided:

(i) the judge reasonably believes that no party or counsel for a party will gain a procedural or tactical advantage as a result of the ex parte communication, and

(ii) the judge makes provision promptly to notify all other parties and counsel for parties of the substance of the ex parte communication and allows an opportunity to respond.

(b) A judge may obtain the advice of a disinterested expert on the law applicable to a proceeding before the judge if the judge gives notice to the parties of the person consulted and the substance of the advice, and affords the parties reasonable opportunity to respond.

(c) A judge may consult with court personnel whose function is to aid the judge in carrying out the judge’s adjudicative responsibilities or with other judges.

(d) A judge may, with the consent of the parties, confer separately with the parties and their lawyers in an effort to mediate or settle matters pending before the judge.

(e) A judge may initiate or consider any ex parte communications when expressly authorized by law to do so.

(5) A judge should dispose promptly of the business of the court.

(6) A judge shall not make any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court.

(7) A judge shall not, in connection with cases, controversies, or issues that are likely to come before the court, make pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office.

(8) A judge shall require court staff, court officials, and others subject to the judge’s direction and control to refrain from making statements that the judge would be prohibited from making by paragraphs (6) and (7).

(9) Notwithstanding the restrictions in paragraph (6), a judge may make public statements in the course of official duties, may explain court procedures, and may comment on any proceeding in which the judge is a litigant in a personal capacity.

(10) Subject to the requirements of paragraph (6), a judge may respond directly or through a third party to allegations in the media or other forms of communication concerning the judge’s conduct in a matter.

(11) A judge should prohibit broadcasting, televising, recording, or taking of photographs in or out of the courtroom during sessions of court or recesses between sessions except as authorized by the Supreme Court.

(12) A judge may properly intervene in a trial of a case to promote expedition, and prevent unnecessary waste of time, or to clear up some obscurity, but the judge should bear in mind that undue interference, impatience, or participation in the examination of witnesses, or a severe attitude on the judge’s part toward witnesses, especially those who are excited or terrified by the unusual circumstances of a trial, may tend to prevent the proper presentation of the cause, or the ascertainment of truth in respect thereto.

Conversation between the judge and counsel in court is often necessary, but the judge should be studious to avoid controversies that are apt to obscure the merits of the dispute between litigants and lead to its unjust disposition. In addressing counsel, litigants, or witnesses, the judge should avoid a controversial manner or tone.

A judge should avoid interruptions of counsel in their arguments except to clarify their positions, and should not be tempted to the unnecessary display of learning or a premature judgment.

(13) A judge should adopt the usual and accepted methods of doing justice; avoid the imposition of humiliating acts or discipline, not authorized by law in sentencing and endeavor to conform to a reasonable standard of punishment and not seek popularity or publicity either by exceptional severity or undue leniency.

(14) Without regard to a person’s race, gender, or other protected personal characteristic, a judge should treat every person fairly, with courtesy and respect. To the extent possible, a judge should require staff, court officials, and others who are subject to the judge’s direction and control to provide such fair, courteous, and respectful treatment to persons who have contact with the court.

(B) Administrative Responsibilities:

(1) A judge should diligently discharge administrative responsibilities, maintain professional competence in judicial administration, and facilitate the performance of the administrative responsibilities of other judges and court officials.

(2) A judge should direct staff and court officials subject to the judge’s control to observe high standards of fidelity, diligence, and courtesy to litigants, jurors, witnesses, lawyers, and others with whom they deal in their official capacity.

(3) A judge should take or initiate appropriate disciplinary measures against a judge or lawyer for unprofessional conduct of which the judge may become aware.

(4) A judge should not cause unnecessary expense by making unnecessary appointments. All appointments shall be based on merit.

(5) A judge should not approve compensation beyond the fair value of services rendered.

(C) Disqualification:^[1]

A judge should raise the issue of disqualification whenever the judge has cause to believe that grounds for disqualification may exist under MCR 2.003(C).

(D) Waiver of Disqualification:

A disqualification of a judge may be waived as provided by MCR 2.003(E).” Michigan Code of Judicial Conduct, Canon 3.

 

Disclaimer: Many of the opinions in this chapter involve more than one Canon of the Michigan Code of Judicial Conduct; however, only information relevant to MCJC 3 is featured in this chapter.

 

 

Engaging in misconduct resulting in removal from office.

•Engaging in inappropriate relationship, engaging in ex parte communications, and lying under oath. A judge violated MCJC 3(A)(1) “by failing to ‘be faithful to the law,’” MCJC 3(A)(4), “engaging in ex parte communications,” MCJC 3(C), and “failing to ‘raise the issue of disqualification[,]’” when he “(a) had a sexual relationship with a complaining witness in a case pending before him without recusing himself for several months, (b) engaged in numerous ex parte communications with her concerning the case, as well as concerning another case in which one of her relatives was a party, (c) violated various policies of the courthouse by permitting his mistress to enter the facility through an employee entrance without going through security, allowing her to remain alone in his chambers while he was on the bench, arranging for her to park her vehicle in an area reserved for judges, and sneaking her cell phone into the courthouse for her, (d) transmitted numerous text messages to her while he was on the bench that contained inappropriate and derogatory references to defendants, litigants, and witnesses appearing before him, (e) lied about when and why he finally did recuse himself from the case in which his mistress was the complaining witness, (f) sought to use the prosecuting attorney’s office as leverage against his then ex-mistress by concocting charges of stalking and extortion against her, and (g) lied under oath during the JTC proceedings.” In re McCree, 495 Mich 51, 55-56, 73-74 (2014), quoting MCJC 3. The Michigan Supreme Court noted its “duty to preserve the integrity of the judiciary,” and indicated that the judge had been “recently publicly censured . . . yet continued to engage in misconduct,” which “is strongly suggestive that respondent ha[d] not yet learned from his mistakes and that the likelihood of his continuing to commit judicial misconduct [was] high.” Id. at 86. “Such a cavalier attitude about serious misconduct is disturbing, and respondent’s apparent failure to comprehend fully the magnitude of his wrongdoing is equally troublesome.” Id. at 86-87 (judge removed from office).

•Misappropriating public funds. A judge’s misconduct violated MCJC 3(A)(1) (be faithful to the law), MCJC 3(A)(2) (require appropriate attire for court), and MCJC 3(B)(1) (diligently discharge administrative responsibilities), when she “misappropriated public funds, some of which were intended for victims of crime”; “inappropriately spent much of this money on self-promoting advertisements and travel expenses for herself and various other court employees”; “treated these funds . . . as her own ‘publicly funded private foundation’”; “denied people access to the court by instituting and enforcing an improper business-attire policy”; “employed a family member in violation of court policy”; and “made numerous misrepresentations of fact under oath during the investigation and hearing of th[e] matter.” In re James, 492 Mich 553, 555-556, 558 (2012). “The cumulative effect of [the judge’s] misconduct, coupled with its duration, nature, and pervasiveness, convince[d] [the Michigan Supreme Court] that she [was] unfit for judicial office”; “[a]lthough some of her misconduct, considered in isolation, [did] not justify such a severe sanction, taken as a whole her misconduct r[ose] to a level that require[d] her removal from office.” Id. at 556 (judge removed from office).

•Disregarding the law. A judge’s misconduct violated MCJC 3(A)(1) (be faithful to the law), MCJC 3(A)(4) (ex parte communications), and MCJC 3(A)(5) (dispose promptly of court business), when he engaged in “numerous instances of documented judicial misconduct,” including “‘fixing’ (personally and surreptitiously dismissing) traffic citations issued to himself, his spouse, and his staff; preventing the transmission of or altering court information that was legally required to have been transmitted to the Secretary of State; dismissing cases without conducting hearings or involving the prosecutor; failing to follow plea agreements; and making false statements under oath during the JTC hearing.” In re Justin, 490 Mich 394, 396, 398 (2012). “[T]he common themes running throughout [the judge’s] substantiated acts of misconduct [were] a calculated disregard for the law and an intentional effort to undermine the judicial process, as deemed warranted or expedient by the [judge]”; “[s]uch misconduct evince[d] an unacceptable disregard for the role of judge as well as disdain for due process and the right of parties to a fair hearing.” Id. at 413. The judge’s actions [were] completely antithetical to the privilege of being a judge as well as disdain for due process and the right of parties to a fair hearing.” Id (judge removed from office).

•Improper docket management. A judge “[f]ail[ed] to be faithful to the law and to maintain professional competence in it” contrary to MCJC 3(A)(1) when she “improperly listed cases on the no-progress docket[.]” In re Nettles-Nickerson, 481 Mich 321, 322-323, 333 (2008) (judge engaged in other misconduct not relevant to MCJC 3 and was removed from office).

 

Interfering with the administration of justice.

•Example where engaging in extrajudicial contact does not rise to level of misconduct. A judge did not violate MCJC 3(A) (adjudicative responsibilities) when he failed to terminate a meeting with an individual whose asset acceptance case was assigned to another judge, and faxed a letter on official district court stationery to the individual’s attorney; while the judge’s actions “reflected poor judgment,” they did not constitute judicial misconduct. In re Hultgren, 482 Mich 358 (2008) (judge cautioned).

 

Engaging in sexual misconduct.

•Inappropriate comments. A judge violated MCJC 3(A)(3) and MCJC 3(A)(14) by his “comments to two women prosecutors during a murder trial”; specifically, “[b]y his unnecessarily crass and sexual language” and “by guessing the attorneys’ heights and weights unbidden while eyeing them,” he was not “‘patient, dignified, and courteous’ to the attorneys, [MCJC 3(A)(3)], nor did he treat them ‘fairly, with courtesy and respect’ without regard to their gender, [MCJC 3(A)(14)].’” In re Morrow, 508 Mich 490, 494, 497 (2022) (judge publicly censured and suspended for six months without pay).

•Inappropriate drawings and comments. A judge violated MCJC 3(A)(3) (be patient, dignified, and courteous) when he “compromised the integrity of the court” by making “lewd drawings–one of female breasts and one of a penis–on notes that were attached to two court files” on two separate occasions, and by commenting on the “small chest size” of a female employee during a retirement party at the courthouse. In re Servaas, 484 Mich 634, 639, 641, 651 (2009). While the judge’s “conduct concerning the comment and two drawings was unquestionably inappropriate,” his actions were viewed as “an aberration given his 35 years of apparent unblemished service” as a district court judge. Id. at 637 (judge publicly censured).

 

Exhibiting lack of judicial temperament.

•Using controversial tone and manner. A judge violated MCJC 3(A)(3) (be patient, dignified, and courteous) and MCJC 3(A)(12) (intervene in a trial), when his “conduct demonstrate[d] a pattern of persistent interference in and frequent interruption of the trial of cases; impatient, discourteous, critical, and sometimes severe attitudes toward jurors, witnesses, counsel, and others present in the courtroom; and use of a controversial tone and manner in addressing litigants, jurors, witnesses, and counsel,” that “frequently resulted in appellate reversal of trials over which he had presided.” In re Moore, 464 Mich 98, 131-133 (2001). The judge’s conduct “frequently violated the Code of Judicial Conduct and demonstrate[d], on those occasions, a lack of judicial temperament”; “[s]uch behavior undermines public confidence in the integrity and impartiality of the judiciary and is clearly prejudicial to the administration of justice.” Id. at 132-133 (judge suspended for six months without pay).

•Failing to be patient and dignified. A judge “[f]ailed to be faithful to the law” contrary to MCJC 3(A)(1); “[f]ail[ed] to be patient, dignified, and courteous to litigants, lawyers, and others with whom the judge deals in an official capacity” in violation of MCJC 3(A)(3); and “[f]ail[ed] to avoid a controversial tone or manner in addressing counsel and fail[ed] to avoid the unnecessary interruption of counsel during arguments” in violation of MCJC 3(A)(12), when he was not “patient and dignified” and made improper comments to and about a defendant that he sentenced to jail for contempt of court. In re Post, 493 Mich 974, 976-977 (2013) (judge publicly censured and suspended for 30 days without pay).

•Using insulting, demeaning, and humiliating language. A judge violated MCJC 3(A)(3), which “provides that ‘[a] judge should be patient, dignified, and courteous to litigants . . . and others with whom the judge deals in an official capacity[]’” when, during a “protracted and highly contentious divorce and custody case,” she “failed to act in a patient, dignified, and judicial manner during the contempt proceedings against the three children, aged 9, 10, and 13, directing to them insulting, demeaning, and humiliating comments and gestures far exceeding the proper bounds of stern language permitted to a judge.” In re Gorcyca, 500 Mich 588, 595, 614-615 (2017) (first alteration in original). The judge “did not observe high standards of conduct and did not preserve the integrity of the judiciary when she mocked the children, threatened them, called them ‘crazy’ and ‘brainwashed,’ exaggerated or lied about the conditions at [an out-of-home care, custody, and treatment center], and generally expressed hostility to the children and their mother,” and “exhibited a lack of judicial temperament during the proceedings in open court when she directed at the three children and their mother language that was insulting, demeaning, and humiliating.” Id. at 615, 643-644 (judge publicly censured).

 

Failing to fulfill judicial duties.

•Engaging in ex parte communications. A judge violated MCJC 3(A)(4)(a) when she “exchanged several e-mails with the [prosecutor] regarding testimony of a Michigan State Police trooper and a Michigan State Police detective” during defendant’s jury trial, “express[ing] concern about mistakes law enforcement had made in its investigation and ask[ing] questions related to why those mistakes had occurred,” and “never notified defendant or defense counsel of these e-mails or their contents.” People v Loew, ___ Mich ___, ___ (2024), aff’g 340 Mich App 100 (2022) (opinion by CLEMENT, C.J.). “Because the trial judge’s ex parte communications with [the prosecutor] were not made for the purpose of managing or executing a pending or impending proceeding, they violated [MCJC] 3(A)(4)(a).” Loew, ___ Mich at ___.

•Engaging in ex parte communications. A judge “[p]articipat[ed] in ex parte communications, and consider[ed] . . . them outside the presence of all parties concerning pending or impending proceedings, in violation of [MCJC 3(A)(4)],” when he e-mailed the prosecuting attorney regarding caselaw pertinent to two pending cases, without notifying defense counsel, and engaged in “[c]onduct in violation of [MCJC 3(A)(3)] which states that a judge should be patient, dignified, and courteous to attorneys and others,” when he proceeded to disparage the prosecutor’s office for alerting defense counsel to the ex parte communications. In re Filip, 503 Mich 956, 959 (2019) (judge publicly censured).

•Failing to properly handle cases and complete work responsibilities. A judge violated MCJC 3 (perform the duties of office impartially and diligently) by improperly handling numerous cases; for example, at an arraignment, the judge inexplicably facilitated a defendant’s release, “plac[ing] the interests of [a defendant] and his counsel . . . ahead of all other interests, including protection of the public.” In re Hathaway, 464 Mich 672, 674, 676, 678, 681-682, 690 (2001). And “[t]he improper effort to persuade [another defendant] to waive his right to a jury trial [was] another example of a serious one-time breach of [the judge’s] responsibility to use her judicial power lawfully” that “surely was connected to a more serious problem that was ongoing–her prolonged failure to attend in timely fashion to the business of her court.” Id. at 690. Another case demonstrated the judge’s “refusal to do her work [that] caused profound suffering for the family of the victim and outrageous inconvenience for the witnesses” where the judge initiated 16 of 21 adjournments and ultimately recused herself from the case, causing further delay, which amply demonstrated “the remarkable extent of [the judge’s] failure to discharge her judicial duties.” Id. at 690-691. It was not “a failure to move papers or to file administrative reports” nor “a judge having a ‘bad day’–or several”; rather, the judge “simply declined over an extended period to do her work.” Id. “A judge’s whimsical decision whether to work on a particular day, or during particular months, cannot take precedence over the affairs brought to the courthouse by the people for resolution.” Id. at 691-692 (judge suspended for six months without pay).

•Failing to properly handle cases. A judge violated MCJC 3(A)(5) (dispose promptly of court business) “by failing to dispose promptly of the business of the court” when he “failed to timely adjudicate at least 30 family law cases within the [Michigan Supreme Court’s caseflow] guidelines”; specifically, the judge “dismissed 30 cases as the guidelines threshold approached in order to avoid those cases being identified as being out of compliance” and “would continue to work on the adjudication of those cases in a conscious design to avoid detection of those cases as being out of compliance.” In re Halloran, 486 Mich 1054, 1054-1055 (2010) (judge publicly censured and suspended for 14 days without pay).

•Failing to properly handle cases. A judge violated MCJC 3(A)(1) by “[r]efus[ing] to be faithful to the law” when he corresponded with a defendant several times urging the defendant to plead guilty, and when the defendant declined to do so, “knowingly executed and caused to be filed in the [court] records” a judgment of sentence “which falsely stated that [the defendant] had been advised of right to counsel and appointed counsel and had knowingly, intelligently and voluntarily waived that right, and pled guilty to the charged offense”; “[a]s a result of these actions, [the defendant] was denied the opportunity for a hearing and basic due process.” In re Milhouse, 461 Mich 1279 (2000) (judge publicly censured and suspended for 10 days without pay).

•Failing to follow the law. A judge “[f]ail[ed] to be faithful to the law and maintain professional competence in it,” contrary to MCJC 3(A)(1); “[p]articipat[ed] in ex parte communications, and consider[ed] . . . them outside the presence of all parties concerning pending or impending proceedings,” in violation of MCJC 3(A)(4); and “[f]ail[ed] to adopt the usual and accepted methods of doing justice,” in violation of MCJC 3(A)(12), when she “reduced charges, dismissed charges outright, or modified sentences in at least 20 criminal cases, without holding a hearing and where she had no explicit authority from the prosecutor to do so”; “dismissed at least 32 ticket cases without holding a hearing and where she had no explicit authority from the prosecutor to do so”; “engaged in ex parte communications by considering substantive matters relevant to the merits of the pending proceedings, without the knowledge or consent of the prosecuting attorney”; “engaged in [other] ex parte contacts”; and “declined to appoint a translator for the defendant when she should have.” In re Church, 499 Mich 936-940 (2016) (judge publicly censured and suspended for 120 days without pay “in light of [the judge’s] disclosed serious and debilitating medical condition” and “her acceptance of responsibility”).

•Failing to follow the law. A judge violated MCJC 3(A)(1) (be faithful to the law) when he engaged in misconduct “arising out of criminal cases in which [he] was the presiding judge,” and “the totality of the evidence . . . paint[ed] a portrait of a judicial officer who was unable to separate the authority of the judicial office he holds from his personal convictions.” In re Morrow, 496 Mich 291, 295, 298-299, 299 n 9 (2014) (quotation marks and citation omitted). Specifically, (1) the judge “closed the courtroom to the public and the victim’s family during a postconviction hearing without specifically stating the reasons for the closure or entering a written order as required by [court rule]” and “subsequently ordered his court reporter not to prepare transcripts of the hearing”; (2) “failed to sentence a defendant . . . with the mandatory minimum . . . as prescribed by [statute], despite the prosecutor’s bringing the relevant statute to his attention,” and “later discharged the defendant from probation without the defendant having served the mandatory [sentence]”; (3) “refused the prosecutor’s request to remand the defendant . . . to jail awaiting sentencing as required by [statute]”; (4) “following the defendant’s guilty plea, . . . dismissed the case sua sponte on the basis that a previous dismissal order was with prejudice,” and “[w]hen the prosecutor informed him that his justification was contradicted by the record[,] . . . [he] stated that the dismissal was ‘conditional with prejudice’”; (5) “failed to place a sidebar conference on the record, failed to rule on the defendant’s request for a curative instruction, and failed to follow instructions from the Court of Appeals to hold an evidentiary hearing on a contested legal issue, and his ruling on remand was not supported by the trial record”; (6) “at the beginning of a trial over which he was to preside . . . left the bench, shook hands with the defendant, and gave a package of documents to defense counsel”; (7) “sua sponte subpoenaed medical records of the defendant without the parties’ knowledge or consent”; and (8) “personally retrieved an inmate from lockup, escorted him to his courtroom, and sentenced him without restraints or courtroom security personnel present.” Id. at 295-297; see also id. at 297 n 3. The Michigan Supreme Court noted that “although judicial officers should strive to do justice, they must do so under the law and within the confines of their adjudicative role.” Id. at 300 (judge suspended for 60 days without pay).

•Failing to follow the law. A judge violated MCJC 3(A)(1) “in that he did not faithfully execute the law and maintain his professional competence when he commenced indirect contempt proceedings based only on unsworn conversations with his staff” and violated MCJC 3(A)(4) “in that he received communications regarding [a disruptive individual’s] conduct from court staff, after the commencement of proceedings, and directed staff to provide the information to the prosecuting attorney and directed staff to prepare affidavits concerning [the individual’s swearing at court staff] and did not advise [the individual’s] counsel of these communications.” In re Wiley, 495 Mich 963, 967-968 (2014) (judge publicly censured).

•Failing to advance cases. A judge violated MCJC 3(A)(5) by “[f]ail[ing] to dispose promptly of the business of the court” when he engaged in “unwarranted delay, inaction and failure to timely act” in two domestic relations cases; specifically, in a spousal support/child support case, he did not render a decision until “approximately 11 months after the hearing and more than three years after remand from the Supreme Court,” and in a divorce case, he “persistently failed to act or was persistently neglectful in performance of his duties,” including “failure to timely decide motions or promptly enter orders after matters were decided by the court.” In re Jelsema, 463 Mich 1229, 1230-1233 (2001) (judge publicly censured).

•Resolving child custody dispute with coin flip. A judge did not adhere to “the usual and accepted methods of doing justice” in accordance with MCJC 3(A)(13), when she resolved a disputed child custody issue by the flip of a coin. In re Brown, 468 Mich 1228, 1232 (2003). The judge “expresse[d] her deep regret for her conduct . . . and for the resulting negative impact on the public perception of judges, the institutional integrity of the judiciary, and the administration of justice.” Id. at 1228, 1231 (judge publicly censured).

 

Misusing position.

•Misusing judicial office for personal benefit. A judge “fail[ed] to diligently discharge administrative responsibilities” in violation of MCJC 3(B)(1) by (1) “engag[ing] in conduct which reasonably could be viewed as sexually offensive toward a subordinate by altering a screen saver message on her computer screen”; (2) “misus[ing] certain court facilities and equipment, property, or personnel for his personal use”; (3) “engag[ing] in a verbal confrontation with the manager of [a local movie theater], identif[ying] himself as a district court judge, and [being] uncooperative when he was asked to leave”; and (4) purchasing a vehicle that he drove for approximately two weeks “without displaying the temporary paper license plates.” In re Trudel, 465 Mich 1314, 1314-1315, 1317 (2002) (judge publicly censured and suspended for 90 days without pay).

•Engaging in inappropriate relationship. A judge engaged in “ex parte communications with a party and with a judge,” contrary to MCJC 3(A)(4), when he responded to a card from a defendant on court stationery and inquired if she was interested in seeing him romantically, and continued to e-mail with her thereafter; and when he contacted a judge that had been assigned a criminal case involving a former neighbor. In re Mazur, 498 Mich 923, 924-926 (2015) (judge publicly censured and suspended for 30 days without pay).

 

 

 

Grievance investigations concerning various administrative and court-related matters.

•Closing courtroom without authority. A judge closed their courtroom to the media in connection with a case against the advice of the chief judge and court legal counsel and failed to comply with the court rule requirements for closure, in violation of MCJC 3(A)(1). JTC Case Summary, 14-4 (dismissed with an admonition).

•Disregarding scheduling court rule. A judge disregarded the scheduling court rule when handling defense counsel’s scheduling requests and motions in a criminal case, in violation of MCJC 3(A)(1). JTC Case Summary, 13-2 (dismissed with a caution).

•Engaging in excessive absenteeism/tardiness. A judge had a high rate of absenteeism and tardiness that was a long-standing issue relating to their service on the bench, including frequent late arrival to court and failure to take the bench at the time their docket was scheduled to begin, in violation of MCJC 3. JTC Case Summary, 13-1 (dismissed with an admonition).

•Engaging in ex parte communications. A judge had an ex parte conversation with a defendant, in violation of MCJC 3(A)(4). JTC Case Summary, 19-2 (dismissed with a caution).

•Engaging in ex parte communications. A judge had an ex parte conversation with the officer in charge of the case regarding the retention of evidence, in violation of MCJC 3(A)(4). JTC Case Summary, 18-4 (dismissed with an admonition).

•Engaging in ex parte communications. A judge had two phone conferences with and replied to a letter from a minor in a post-judgment divorce proceeding; replied to a letter from a party in an adoption proceeding with advice; and arranged for an attorney to appear on a party’s behalf in a contempt proceeding without ensuring notice, in violation of MCJC 3(A)(4). JTC Case Summary, 16-9 (dismissed with an admonition).

•Engaging in ex parte communications. A judge had an ex parte conversation with an attorney who was participating in a hearing in person after disconnecting a phone call with opposing counsel who had been participating by phone, in violation of MCJC 3(A)(4). JTC Case Summary, 16-3 (dismissed with an admonition).

•Failing to advance case. A judge failed to issue an opinion until two years after the matter was submitted, in violation of MCJC 3(A)(5). JTC Case Summary, 19-7 (dismissed with a caution).

•Failing to advance case. A judge failed to make a ruling until nine months after the matter was submitted and failed to timely disclose the delay to the State Court Administrative Office, in violation of MCJC 3(A)(5). JTC Case Summary, 19-5 (dismissed with a caution).

•Failing to advance case. A judge failed to issue an opinion until seven months after the matter was submitted and failed to ensure the accuracy of the staff’s work regarding omission of the delayed matters from the judge’s delay reports, in violation of MCJC 3(A)(5). JTC Case Summary, 18-1 (dismissed with a caution).

•Failing to advance case. A referee’s six-month delay in issuing a recommendation on a party’s modification review request on a child support matter did not violate MCJC 3(A)(5) under the particular circumstances of the case. JTC Case Summary, 17-4 (dismissed with an admonition).

•Failing to advance case. A judge had a case pending on their docket for over three years, in violation of MCJC 3(A)(5). JTC Case Summary, 17-3 (dismissed with an admonition).

•Failing to advance cases. A judge repeatedly adjourned proceedings, took matters under advisement for much longer periods than allowed under the court rules, and ignored the time frames established by the Court of Appeals to conduct a proceeding on remand, in violation of MCJC 3(A)(5). JTC Case Summary, 16-9 (dismissed with an admonition).

•Failing to advance case. A judge failed to rule on a motion challenging a personal protection order for more than four months, in violation of MCJC 3(A)(5). JTC Case Summary, 16-8 (dismissed with a caution).

•Failing to advance case. A judge took 14 months to resolve an application for leave to appeal, in violation of MCJC 3(A)(5). JTC Case Summary, 16-7 (dismissed with an admonition).

•Failing to advance case. A judge took 11 months to resolve a motion for summary disposition, in violation of MCJC 3(A)(5). JTC Case Summary, 14-8 (dismissed with an admonition).

•Failing to advance case. A judge took a year to resolve a motion for relief from judgment, and the delay was unwarranted, particularly because the defendant’s liberty was at issue, in violation of MCJC 3(A)(5). JTC Case Summary, 14-4 (dismissed with an admonition).

•Failing to disclose fee referral relationship. A part-time municipal judge failed to disclose a fee referral relationship between a private attorney that practiced before the court and the law firm where the judge was a shareholder, in violation of MCJC 3(C). JTC Case Summary, 16-4 (dismissed with an admonition).

•Failing to follow remand order. A judge failed to follow a remand order issued by the Court of Appeals, in violation of MCJC 3(A)(1). JTC Case Summary, 16-9 (dismissed with an admonition).

•Failing to fulfill administrative responsibilities. A judge failed to issue an opinion until seven months after the matter was submitted and failed to ensure the accuracy of the staff’s work regarding omission of the delayed matters from the judge’s delay reports, in violation of MCJC 3(B)(1). JTC Case Summary, 18-1 (dismissed with a caution).

•Failing to fulfill administrative responsibilities. A judge failed to report significant amounts of time off, in violation of MCJC 3(B)(1). JTC Case Summary, 14-4 (dismissed with an admonition).

•Failing to fulfill administrative responsibilities. A chief judge did nothing to address the failure of a referee with their court’s Friend of the Court to appear, in violation of MCJC 3(B). JTC Case Summary, 13-7 (dismissed with a caution).

•Failing to fulfill judicial responsibilities. A judge appointed a private attorney as a ‘discovery master/facilitator’ in a case that was assigned to the judge so that the judge would not have to preside over potentially long and tedious motion hearings, in violation of MCJC 3(A)(1) and MCJC 3(B)(4). JTC Case Summary, 14-6 (dismissed with a caution).

•Failing to raise issue of disqualification. A magistrate failed to raise the issue of disqualification when called as a witness at the trial of a defendant over whose arraignment the magistrate presided, in violation of MCJC 3(C). JTC Case Summary, 21-2 (dismissed with a caution).

•Failing to raise issue of disqualification. A judge failed to raise the issue of disqualification when presiding over a case involving a party represented by a law firm that employed the judge’s spouse, in violation of MCJC 3(C). JTC Case Summary, 19-8 (dismissed with a caution).

•Failing to raise issue of disqualification. A judge knowingly violated a standing disqualification order, in violation of MCJC 3(A). JTC Case Summary, 16-1 (dismissed with an admonition).

•Failing to obtain written waiver of disqualification. A judge failed to obtain a written waiver of disqualification, in violation of MCJC 3(D). JTC Case Summary, 20-4 (dismissed with an explanation).

•Making public statement about pending matter. A judge posted on social media about a pending case over which they were presiding, in violation of MCJC 3(A)(7); however, because the posting would not reasonably be expected to impair the fairness of the matter, the judge did not violate MCJC 3(A)(6). JTC Case Summary, 20-6 (dismissed with a caution).

•Making public statement about pending matter. A judge made comments to a reporter about a pending case over which they were presiding, referring to the number of times the defendant had appeared before them for the same crime, expressing their opinion that the state law was too lenient towards this type of crime, and indicating to the reporter that they set the defendant’s bond high because of the danger the defendant presented to the community, in violation of MCJC 3(A)(6). JTC Case Summary, 20-5 (dismissed with a caution).

•Making public statement about pending matter. A judge criticized another judge’s sentence of a defendant, one day after the sentencing, and before the defendant had exhausted their remedies before the sentencing judge or their opportunity to appeal, in violation of MCJC 3(A)(6). JTC Case Summary, 18-7 (dismissed with an admonition).

•Making public statement about pending matter. A judge made comments to a newspaper regarding a pending case, endorsed the investigation and resulting charges against the defendant, and stated their belief that it was debatable whether the defendant would get a fair trial in the current venue, in violation of MCJC 3(A)(6). JTC Case Summary, 17-1 (dismissed with an admonition).

•Responding to disqualification request with form letter. A judge’s response to a request for disqualification with a form letter advising the individual to file a motion or consult an attorney did not violate MCJC 3(C); however, the judge could have referred the motion to disqualification to the chief judge for review. JTC Case Summary, 16-5 (dismissed).

•Seeking preferential treatment for defendant. A judicial official asked another judicial official to give preferential treatment to a defendant who was akin to family, in violation of MCJC 3(A)(4). JTC Case Summary, 13-5 (dismissed with an admonition).

 

Grievance investigations concerning various matters in court.

•Exhibiting improper behavior. A judge exhibited dismissive and impatient behavior towards a litigant by using a brusque tone of voice, making accusations that the litigant was lying, not giving the litigant an opportunity to explain their case, and threatening to have the litigant arrested when the litigant attempted to rebut the judge’s unfounded accusations, despite no apparent security risk, in violation of MCJC 3(A)(3) and MCJC 3(A)(14). JTC Case Summary, 21-1 (dismissed with an admonition).

•Exhibiting improper behavior. A judge became angry at a litigant and attempted to control the litigant’s conduct by threatening to, or increasing, the litigant’s jail sentence, in violation of MCJC 3(A)(3) and MCJC 3(A)(14). JTC Case Summary, 17-5 (dismissed with a caution).

•Exhibiting improper behavior. A judge questioned the competency of an attorney in open court, with no foundation for doing so, in violation of MCJC 3(A)(1). JTC Case Summary, 16-8 (dismissed with a caution).

•Exhibiting improper behavior. A judge disconnected a phone call with counsel for a party during a hearing in which counsel was participating by phone, in violation of MCJC 3(A)(3). JTC Case Summary, 16-3 (dismissed with an admonition).

•Imposing unduly harsh sanction. A judge imposed an eight-month parenting time prohibition against a party for failing to appear at a hearing in a divorce case, without explanation or justification for the harsh sanction, in violation of MCJC 3(A)(1). JTC Case Summary, 13-6 (dismissed with an admonition).

•Making improper remarks. A judge made pretrial remarks warning a defendant of additional consequences of exercising the right to a jury trial if convicted after presenting a frivolous defense, in violation of MCJC 3(A)(1). JTC Case Summary, 19-9 (dismissed with an admonition).

•Making improper remarks. A judge told a defendant that they would send the defendant to jail if convicted following a jury trial, challenged defense counsel’s trial experience in defendant’s presence, suggested that defense counsel was urging a jury trial for counsel’s own benefit, and attempted to dissuade the defendant from proceeding with a jury trial, in violation of MCJC 3(A)(1), MCJC 3(A)(3), and MCJC 3(A)(14). JTC Case Summary, 19-6 (dismissed with an admonition).

•Making improper remarks. A judge used language at sentencing that conveyed to an objective person that it was the judge’s desire that the defendant had been killed, rather than arrested and convicted, in violation of MCJC 3(A)(3). JTC Case Summary, 18-3 (dismissed with a caution).

•Making improper remarks. A judge engaged in inappropriate dialogue with a defendant in an unprofessional temperament, and stated during a felony sentencing hearing that it was their practice to sentence a defendant at the top of the guidelines following a jury trial, in violation of MCJC 3(A)(3) and MCJC 3(A)(9). JTC Case Summary, 17-2 (dismissed with a caution).

•Making improper remarks. A judge exhibited intense anger during a meeting with a social support agency; told a defendant that, as a judge, they could tell the defendant when to urinate; and told a defendant that police officers may lie to him, in violation of MCJC 3(A)(3). JTC Case Summary 16-6 (dismissed with an admonition).

•Making improper remarks. A judge made disrespectful and discourteous comments in two cases, saying they were “a king on [their] throne” and did not have to show the defendant “a damn thing” following a request to see the verified criminal complaint, and telling the defendant to “go away” at the conclusion of a foreclosure hearing, in violation of MCJC 3(A)(3) and MCJC 3(A)(10); however, the comments were made in cases with extremely difficult litigants, and the judge expressed remorse and acknowledged their lack of judicial temperament. JTC Case Summary, 14-3 (dismissed with an explanation).

•Making improper remarks. A judge publicly referred to a fellow judge in an extremely derogatory manner, in violation of MCJC 3(A)(3). JTC Case Summary, 13-4 (dismissed with a caution).

•Ordering confinement without authority. A judge ordered a defendant to a holding cell without cause to do so, in violation of MCJC 3(A)(1). JTC Case Summary, 19-2 (dismissed with a caution).

•Ordering confinement without authority. A judge ordered an attorney taken into custody for contempt following a six-minute hearing during which the attorney was attempting to advocate for his client, in violation of MCJC 3(A)(1) and MCJC 3(A)(14). JTC Case Summary, 14-1 (dismissed with a caution).

•Sentencing without authority. A judge imposed consecutive sentences when there was no authority to do so in the case before them, in violation of MCJC 3(A)(1). JTC Case Summary, 20-2 (dismissed with a caution).

 

 

 

Guidance on engaging in various matters in court.

•Understanding technology including artificial intelligence. “Judicial officers have an ethical obligation to understand technology, including artificial intelligence, and take reasonable steps to ensure that AI tools on which their judgment will be based are used properly and that the AI tools are utilized within the confines of the law and court rules.” State Bar of Michigan Ethics Opinion, JI-155, October 27, 2023. “Further, as AI rapidly advances, judicial officers have an ethical duty to maintain technological competence and understand AI’s ethical implications to ensure efficiency and quality of justice.” Id. “The increasing use of AI and other technological programs and devices requires judicial officers to understand how these tools will affect their conduct and docket in accordance with [MCJC 3(A)(1)].” EO JI-155. “Competency with advancing technology is further required by [MCJC 3(B)], which requires judicial officers to ‘maintain professional competence in judicial administration.’” EO JI-155. “Legal knowledge, skills, thoroughness, and preparation are required for judicial officers to perform their duties,” and “[t]his includes knowing the benefits and risks associated with the technology that judicial officers and their staff use daily, as well as the technology used by lawyers who come before the bench.” Id.

•Disclosing protected information in connection to a motion to withdraw. Regarding the information that can ethically be requested by a court, and the means by which that information should be requested, in connection with a motion to withdraw, “[o]rdering disclosure of protected information should be exceptional, rather than normal practice, and narrowly tailored to what is reasonably necessary to allow the court to fulfill its duties of impartiality and diligence as required under [MCJC 3].” State Bar of Michigan Ethics Opinion, JI-154, February 10, 2023. “If the court deems it necessary to order disclosure of protected information, only the court should elicit that information,” and “[t]he court should not allow another party or lawyer to examine the attorney regarding the motion to withdraw,” because “[t]he lawyer is an officer of the court and as such should be questioned by the tribunal only.” Id.

•Disclosing prior relationship between judicial officer and lawyer. “[I]f a judicial officer and a lawyer appearing before the court have divorced or have terminated their prior dating relationship, disclosure must be provided to all parties in order for the parties to have the opportunity to motion the court for disqualification or for the court to raise the issue of disqualification under [MCJC 3(C)].” State Bar of Michigan Ethics Opinion, JI-153, November 4, 2022. “If all parties agree following disclosure and consultation to the judicial officer presiding, and the judicial officer sees no need to complete an analysis . . . for possible disqualification, the matter may move forward.” Id. “Where a judicial officer and attorney appearing before the judge have a child in common, the judge must disclose the relation to all parties and must engage in the disqualification analysis under . . . [MCJC 3(C)] unless parties consent to the judicial officer continuing to preside over the matter”; “[d]isclosure of the child in common must occur regardless of the age of the child.” EO JI-153.

•Sentencing offenders to community service work to compile statistics for election. “A judge may not sentence offenders to community service work to compile statistics on the number of cases handled in the court by candidates for a vacancy on the court.” State Bar of Michigan Ethics Opinion, JI-107, June 18, 1996. “The introductory clause of MCJC 3 states that judicial duties include all the duties of office prescribed by law,” and MCJC 3(A)(13)² “requires a judge to adopt the usual and accepted methods of doing justice, and to avoid the imposition of discipline not authorized by law in sentencing.” EO JI-107. “The sentencing proposal . . . is not specifically authorized by law as contemplated by [MCJC 3(A)(13)], nor is there general acceptance of the proposition that voter education on judicial candidates is a ‘judicial duty prescribed by law’ under MCJC 3.” EO JI-107. “While a judge may personally speak as an individual on behalf of or support another candidate for judicial office, the judge may not use . . . the judge’s judicial authority in sentencing to do so.” EO JI-107.

•Imposing sentences requiring payment to specific entity. “A judge may not impose sentences requiring criminal defendants to pay moneys which are allocated to educational, religious, charitable, fraternal, or civic activities, unless the sentencing practice has been authorized by law.” State Bar of Michigan Ethics Opinion, JI-55, June 22, 1992. MCJC 3(A)(1) “provides a judge should be faithful to the law in performing adjudicative responsibilities, and . . . [MCJC 3(A)(13)³] urges judges to ‘avoid the imposition of humiliating acts or discipline, not authorized by law in sentencing and endeavor to conform to a reasonable standard of punishment and not seek popularity or publicity either by exceptional severity or undue leniency.’” EO JI-55. Where “the court created the educational program, established its parameters, and is consulted regarding its curriculum,” there is no “authority in law which allows the sentencing practices described”; “[u]nless a sentencing practice has been authorized by law, a judge’s imposition of that sentence is unethical.” Id.

•Imposing sentences with option of community service or contributing to designated charity. “A sentencing judge may not give offenders the option of performing a designated number of hours of community service work or making a monetary contribution to a charity designated by the judge.” State Bar of Michigan Ethics Opinion, JI-48, March 10, 1992. MCJC 3(A)(1) “provides a judge should be faithful to the law in performing adjudicative responsibilities” and MCJC 3(A)(13)⁴ provides in part that “[a] judge should adopt the usual and accepted methods of doing justice”; however, there is no “authority in law which allows the sentencing practices described.” EO JI-48.

•Preventing unauthorized practice of law. “Judges have an ethical duty to prevent the unauthorized practice of law.” State Bar of Michigan Ethics Opinion, JI-26, June 29, 1990. “During an adjudicative proceeding a ‘judge should be faithful to the law’” under MCJC 3(A)(1); “[a]dministratively, a judge must not assist a person who is unlicensed in the practice of law” under MCJC 3(B)(1), which provides in part that a judge should “‘maintain professional competence in judicial administration.’” EO JI-26. Additionally:

“Administrative responsibilities of judges require them to instruct court personnel to regularly check pleadings filed with the court for signature and professional identification (‘P’ number) to assure the person representing a party is a member of the State Bar. Judges must instruct court staff to reject pleadings having no professional identification unless the person is appearing pro se.

A judge who knows of unauthorized practice of law activity must take steps to prevent the unauthorized practice and report the incident to authorities empowered to act upon the matter.

When unauthorized practice of law activity occurs within the presence of a judge, the judge must stop the proceeding; place as much information on the record as possible; advise the party to seek the services of a licensed lawyer; and take other remedial action authorized by law.

When unauthorized practice of law activity occurs outside the presence of a judge, the judge must report the incident to the appropriate authority empowered to investigate the matter.

The duty to report unauthorized practice of law activity requires judges to report all relevant information, including but not limited to (a) names and addresses of all persons having information concerning the matter, (b) transcripts of proceedings recorded, and (c) copies of all available pleadings, documents and correspondence.

A judge who suspects that a party has or is receiving legal assistance from an unlicensed person outside the presence of the judge should report the incident to the appropriate authority empowered to investigate the matter.” Id. (Numbers omitted.)

 

Guidance on engaging in various matters outside of court.

•Considering disqualification following threat/attack. “Security issues for judicial officers not only bring the issue of protection to the forefront but also bring ethical considerations, depending on the circumstances”; however, “[j]udicial officers are not automatically disqualified when receiving a threat or being physically attacked by a litigant or an attorney” because “[t]hreats and physical attacks affect judicial officers differently.” State Bar of Michigan Ethics Opinion, JI-157, May 10, 2024. “Therefore, judicial officers should conduct a disqualification analysis under MCJC 3 . . . to determine if disqualification is necessary.” EO JI-157.

•Consulting with another judge. “A judge may consult with another judge, individually or by way of listservs, to seek guidance in carrying out the judge’s adjudicative responsibilities so long as the judge does not receive factual information that is not part of the record and the judge makes an independent decision in the matter before the judge,” because inherent in MCJC 3 “is the understanding that the jurist serving as the trier of fact in a case must individually decide the case, independent of the opinion of others.” State Bar of Michigan Ethics Opinion, JI-149, March 30, 2020.

•Hosting a commercially-sponsored program. “A judge’s hosting of a commercially-sponsored program has the potential 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.” State Bar of Michigan Ethics Opinion, JI-137, May 11, 2012. “A judge’s ability to speak publicly about the law and the legal system is tempered by the proscription against publicly commenting about a pending or impending proceeding in any court that is set forth in [MCJC 3(A)(6)]. To the extent that a judge is permitted to engage in financial and business dealings outside the scope of judicial functions, doing so cannot impinge on the integrity of the performance of those functions.” EO JI-137.

•Participating in public protest. “A judge may not participate in a public protest against a group or organization which advocates against a particular race, ethnic group or religion.” State Bar of Michigan Ethics Opinion, JI-109, August 6, 1996. MCJC 3(A)(6) “prohibits a judge from making public comment about a pending or impending proceeding in any court”; where “[t]he judge would be appearing in public as a part of a protest against some of the persons, presumably, who may appear before the judge in unrelated matters” and “[t]he protest targets a particular segment of society,” it is important to “preserve a forum in which those persons may be fairly and impartially heard.” EO JI-109.

•Teaching law course. “A judge may teach a law course as long as the obligations of teaching do not interfere with the proper performance of judicial duties”; however, “[a] judge may not serve as a contributing editor of a journal of political opinion” because MCJC 3(A)(1) “advises a judge should be unswayed by partisan interests, public clamor, or fear of criticism,” and MCJC 3(A)(6) “notes that a judge should abstain from public comment about a pending or impending proceeding in any court.” State Bar of Michigan Ethics Opinion, JI-99, March 15, 1995. “A judge’s identification with a partisan position may raise the question of whether the judge is able to render a fair and unbiased decision on an issue.” Id.

•Engaging in ex parte communications. “A lawyer may not communicate with a judge concerning a matter pending before that judge, except for scheduling, administrative purposes or emergencies that do not deal with substantive matters or issues on the merits” because MCJC 3(A)(4) prohibits ex parte communications, except in certain circumstances not applicable in this instance. State Bar of Michigan Ethics Opinion, RI-243, October 5, 1995.

•Engaging in ex parte communications. “A judge has an affirmative duty not to permit ex parte communications” under MCJC 3(A)(4); “[a]ccordingly, a judge should not permit a party or counsel to submit materials allegedly for an in camera inspection without counsel providing the opposing counsel notice and an opportunity to be heard prior to the submission.” State Bar of Michigan Ethics Opinion, JI-85, March 23, 1994. MCJC 3(B)(3) provides that “[a] judge should take or initiate appropriate disciplinary measures against a judge or lawyer for unprofessional conduct of which the judge may become aware”; however, “[i]f an ex parte submission is an isolated incident and counsel promptly responds to correct the situation as directed by the judge, the judge may conclude that ‘appropriate’ measures have been taken and that no further action is required.” EO JI-85.

•Engaging in ex parte communications. “A judge who attends a program or seminar at which the faculty argues issues which are nearly identical to those in a case pending before the judge is not required to advise the parties and their counsel in the pending case that the judge attended the seminar.” State Bar of Michigan Ethics Opinion, JI-84, March 7, 1994. Under MCJC 3(A)(4), “[a] judge is obliged to rule on issues presented only on the evidence presented by the advocates,” and “[t]he judge’s participation in the seminar does not reflect adversely on the judge’s ability to render a decision based upon the record.” EO JI-84.

•Engaging in ex parte communications. “A lawyer may not draft findings of fact and conclusions of law in a matter when contacted ex parte by the presiding judge to do so” because MCJC 3(A)(4) prohibits ex parte communications, except in certain circumstances; therefore, “[i]t is improper for the judge to initiate ex parte communications between the clerk and the litigant.” State Bar of Michigan Ethics Opinion, RI-195, March 7, 1994. “If the lawyer cannot persuade the judge to correct the ex parte contact, the lawyer may have a duty to report the judge’s conduct to the Judicial Tenure Commission”; “the lawyer may wish to bring [MCJC 3(A)(4)] . . . to the attention of the judge and urge the judge to notify opposing counsel contemporaneously when such a request is made.” EO RI-195. “If the judge declines the recommendation or if the lawyer knows the judge frequently asks counsel to prepare findings ex parte, the lawyer may be required to report the judge’s conduct.” Id.

•Engaging in ex parte communications. “A lawyer may not contact a judge about the possible recusal of the judge outside the presence of opposing counsel” because MCJC 3(A)(4) prohibits ex parte communications, except in certain circumstances. State Bar of Michigan Ethics Opinion, JI-83, February 25, 1994.

•Participating in a public forum during an election campaign. “A judicial candidate may participate in a public forum in the course of an election campaign, provided the candidate does not create the impression that, if elected or re-elected, the candidate would act with bias or partiality toward a particular class or group”; while “[i]t is not unethical, per se, for a judicial candidate to make general statements of political philosophy,” MCJC 3(A)(6)⁵ provides that “[a] judge shall not make any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court.” State Bar of Michigan Ethics Opinion, JI-27, August 1, 1990.

•Expressing an opinion on a ballot proposal. “A candidate for judicial office may express an opinion on a ballot proposal”; however, “[c]are should be exercised to avoid identification with any partisan position” and “[s]imilar caution should be observed by a judge who is not currently a candidate for re-election.” State Bar of Michigan Ethics Opinion, C-237, March 1986. MCJC 3(A)(13)⁶ provides “that a judge should ‘not seek popularity or publicity either by exceptional severity or undue leniency’”; accordingly, “[t]he candidate for judicial office must avoid statements that would exploit a ballot proposal issue by appealing to passions that may be expressed in the campaign.” EO C-237. Further, “[i]f a constitutional challenge comes before a judge who has expressed an opinion on the issue, it may require the judge’s recusal.” Id.

 

Guidance on serving on various organizations.

•Serving on executive agency. “A district court magistrate may not concurrently serve on a city board of police commissioners” because “a magistrate who is also subject to control by the executive may be swayed by political interest,” contrary to MCJC 3(A)(1). State Bar of Michigan Ethics Opinion, JI-94, July 27, 1994.

•Serving on board of legal aid organization.“A judge serving on the board of directors of a nonprofit legal aid organization is required to disclose the relationship when one of the parties appearing before the judge is represented by a lawyer from the legal aid organization.” State Bar of Michigan Ethics Opinion, JI-51, April 3, 1992. MCJC 3(C) “encourages judges to raise the issue of disqualification whenever a judge has cause to believe disqualification is required by [MCR 2.003(C)]”; however, there is not any “ethical requirement to per se disqualify the judge when one of the parties in a proceeding before the judge is represented by a lawyer from the legal aid organization” because “a reasonable person would [not] conclude that a judge could not fairly and impartially adjudicate a matter in which the organization has no personal interest in the outcome other than to ensure that the staff lawyers provide quality representation for its legal aid clients.” EO JI-51.

 

Guidance on serving in dual roles.

•Serving as case evaluator and judge.“A lawyer who has served as a [case evaluator] under MCR 2.403 may not thereafter preside as judge in a judicial proceeding between the same parties involving the same matter” because MCR 2.403(D)(3) specifically provides that a judge “may not preside at the trial of any action in which he or she served as case evaluator.” State Bar of Michigan Ethics Opinion, JI-112, March 26, 1997.⁷ MCJC 3 “cautions judges against conduct that may be prejudicial to the administration of justice”; accordingly, “[h]aving served on a [case evaluation] panel, a judge cannot thereafter preside at the trial of any action in which the judge served as [case evaluator].” EO JI-112.

 

Guidance on lending support.

•Signing resolution endorsing petition.“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.” State Bar of Michigan Ethics Opinion, JI-52, April 27, 1992. MCJC 3(A)(6)⁸ provides that “[a] judge shall not make any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court”; “[t]he text of the [r]esolution reveals that there is much controversy in the community regarding the [e]mployer’s plant closing, and that over 4,000 workers and their families will be affected,” and “[i]t is reasonable to conclude that there may be litigation arising from the matter.” EO JI-52. “Therefore, a judge should not sign a resolution which is intended to be disseminated to instigate others to action,” contrary to MCJC 3(A)(6). EO JI-52.