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MPRE Sample Question
A judge is considering hiring his niece, a recent law school graduate, to serve as his clerk. His niece graduated at the top of her class, previously interned for a judge in the state in which she attended law school, and published a law review article while serving as articles editor on her school journal. Of the three hundred applications the judge has considered, she is among the three most qualified candidates.
Can the judge offer his niece the clerkship?
a) No, because she is a family member within the third degree of relationship.
b) Yes. Judges have absolute control over administrative appointments.
c) Yes, because the judge’s niece is an exceptionally qualified applicant.
d) No. The judge could only hire her if she is the most qualified applicant.
Answer
Answer choice A is correct. This question tests CJC Rule 2.13 and, to a lesser extent, Rule 1.2. Rule 1.2 requires a judge to “act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.” This requirement extends to the manner in which a judge makes administrative appointments, including the selection of a judge’s personnel, such as clerks, secretaries, and bailiffs. See CJC Rule 2.13(A), and Comment [1] thereto. Accordingly, Rule 2.13(A) requires a judge to avoid nepotism, favoritism, and unnecessary appointments. Comment [2] to Rule 2.3 defines nepotism as “the appointment or hiring of any relative within the third degree of either the judge or the judge’s spouse or domestic partner, or the spouse or domestic partner of such relative.” As explained in the Terminology section of the CJC, the “third degree of relationship” includes: “great-grandparent, grandparent, uncle, aunt, brother, sister, child, grandchild, great-grandchild, nephew, and niece.” Here, the judge would violate CJC Rule 2.13(A) if he hires his niece as a clerk.
Answer choice B is incorrect because, although a judge may exercise considerable control when making administrative appointments, the judge must do so impartially and on the basis of merit, CJC Rule 2.13(A)(1), and avoid nepotism, favoritism and unnecessary appointments. Rule 2.13(A)(2).
Answer choice C is incorrect. A judge must exercise the power of appointment based on merit, see Rule 2.13(A)(1), and the facts indicate that the judge’s niece is highly qualified for the clerkship position. However, a judge must also avoid nepotism. See Rule 2.13(A)(2). Thus, notwithstanding his niece’s qualifications, the judge would violate the Code of Judicial Conduct if he hires her.
Answer choice D is incorrect for two reasons. First, the Code of Judicial Conduct has no requirement that a judge hire the “most qualified” applicant for a position. Indeed, it would be difficult to define what characteristics make any applicant the “most qualified.” Rule 2.13(A) simply requires that personnel be hired based on merit. More fundamentally, whether a job applicant is the most qualified person or not, a judge may not hire an applicant if he or she is within the third degree of relationship, as the niece is in this fact pattern.