The Formal Complaint
In cases involving allegations of serious misconduct, the Commission may institute formal proceedings after the preliminary investigation is complete. Before issuing a formal complaint, the Commission must afford the judge notice of the charges. The judge then has 28 days to present, in writing, any matters the judge chooses for consideration by the Commission (the response period may be extended for good cause). MCR 9.222. When formal proceedings are instituted, the Commission issues a formal complaint, which constitutes a written statement of the charges. The judge’s answer to the notice of charges is filed with the Commission and served within 14 days after service of the notice. MCR 9.224 and 9.230. The formal complaint, the judge’s answer, and subsequent filings in the formal proceedings are public documents, and are generally posted on the Commission's website (with limited exceptions as required by statute or court rule)
The rules provide for some discovery between the parties after formal proceedings are instituted. At least 21 days before a public hearing on the formal complaint, the parties must exchange the names and addresses of all persons they intend on calling as witnesses at the hearing, and provide statements and affidavits given by those persons. The Commission is required to make available to the respondent judge, for inspection or review, all exculpatory material in its possession that it intends to introduce as evidence at the hearing.
The Commission may petition the Supreme Court for an interim order suspending a judge pending final adjudication of a formal complaint, under the procedures set forth in MCR 9.225.
After the judge has filed an answer to the charges, the Commission sets the matter for a hearing. As an alternative to hearing the case itself, the Commission may request the Supreme Court to appoint a master to hear and take evidence in the matter and to report to the Commission. Masters are active judges or judges retired from courts of record.
The judge may be represented by counsel at the hearing. The evidence in support of the charges is presented by disciplinary counsel for the Commission. The Michigan Rules of Evidence apply to the hearings, which are conducted like civil trials. MCR 9.233(A).
Standard of Proof
The general standard of proof in Commission proceedings is a preponderance of the evidence. In re Ferrara, 458 Mich 350 (1998).
Commission Consideration Following Hearing by Master
Following the hearing on the formal complaint, the master files a report with the Commission. The report includes a statement of the proceedings and the master’s findings of fact and conclusions of law with respect to the issues presented by the formal complaint and the judge’s answer.
Upon receipt of the master’s report, the judge and disciplinary counsel are given the opportunity to file objections to the report and to brief the issues in the case to the Commission. Prior to a decision by the Commission, the parties are given the opportunity to present oral arguments before the Commission.
Disposition of Cases After Hearing
After hearing the testimony, or after reviewing the master’s findings, the Commission may dismiss the matter if it determines that there has been insufficient evidence of misconduct. However, if the Commission determines that misconduct has been established by a preponderance of the evidence, it may recommend that the Michigan Supreme Court impose discipline against the judge. The Commission itself has no authority to discipline a judge; the Michigan Constitution reserves that role for the Supreme Court. The Commission may recommend that the Court publicly censure a judge, impose a term of suspension, or retire or remove the judge from office. The Commission issues a Decision and Recommendation, which triggers the next series of steps. The responsibilities of disciplinary counsel in the formal proceedings generally end once the Commission issues the Decision and Recommendation.
The Supreme Court Hearing
Within 21 days after issuing its Decision and Recommendation, the Commission files the record for the formal proceedings in the Supreme Court (including pleadings and other court filings, hearing exhibits and transcripts) and serves a copy on the judge. Within 28 days after service, the judge may file a petition in the Supreme Court to modify or reject the Commission’s Decision and Recommendation. The Commission has 21 days to respond with a brief of its own supporting its finding. Even if the judge does not file a petition, the Supreme Court reviews the Commission’s Decision and Recommendation. Commission Counsel represents the Commission in proceedings before the Supreme Court, and cannot be the same person as Disciplinary Counsel. MCR 9.251(B) The Supreme Court may remand the matter to the Commission for taking further evidence.
The Court clerk places the matter on the Court calendar. The judge and the Commission have an opportunity to present oral arguments to the Court, which reviews the record on a de novo basis. In re Ferrara, 458 Mich 350 (1998). After reviewing the record, the Court issues an opinion and judgment directing censure, removal, retirement, suspension, or other disciplinary action, or rejecting or modifying the Commission’s Decision and Recommendation. The court rules allow a judge to file a motion for rehearing in the Supreme Court unless the Court directs otherwise in its opinion.