Commission Procedures during
the Complaint Process

This summary is provided to assist in the general public's understanding of the disciplinary process.  For specific provisions governing Commission proceedings, please refer to the applicable Michigan Court Rules and Internal Operating Procedures.
 

PRELIMINARY INVESTIGATION

Commission Review of Complaints
Upon receipt, the staff carefully reviews each properly executed and notarized Request for Investigation form, along with any supporting documents or other evidence.  (The form and instructions may be accessed by clicking here.)  It also reviews the court file if necessary.  The staff requests from the grievant any additional information needed to evaluate the allegations, including but not limited to transcripts or videos of court proceedings.  It may not pursue any further investigation without authorization by the Commission.

Based on an assessment of the initial information, the staff prepares a report for the Commission recommending a course of action.  Each grievance is considered and voted upon by the Commission.  It determines whether the matter is within its jurisdiction and whether sufficient facts exist to warrant further investigation.

Investigation at the Commission’s Direction
When the Commission determines that a complaint warrants review beyond the initial investigation, the Commission directs the staff to investigate the matter and report back.  The Commission will give the staff specific instructions on how to conduct the additional investigation. It may include contacting witnesses, reviewing court records and other documents, observing courtroom proceedings, and conducting such other inquiry as the issues may warrant. 

At times the judge may be asked to comment on the allegations, in which case the judge is given a copy of the grievance as part of the investigation.  The Commission may limit the inquiry to the judge to a particular aspect of the grievance.  The judge’s response is then considered along with all other information. A judge's comment is required under MCR 9.207(C) prior to the disposition of a grievance in any way other than an outright dismissal under MCR 9.207(B)(1).

CONFIDENTIAL DISPOSITION OF GRIEVANCES

If any investigation reveals facts that warrant dismissal of the grievance based on lack of jurisdiction or as the allegations are found to be untrue or unprovable, it may be closed.  If the grievance has not been provided to the judge with a request for comment, the Commission provides a copy of the grievance to the judge upon closing the case.

After an investigation and opportunity for a judge to provide comments to the allegations, the Commission may determine that although there was no judicial misconduct, certain actions of the judge should preferably not be repeated. On those occasions, the Commission may dismiss the matter with a letter of explanation to the judge. If after an investigation and opportunity for comment by the judge, the Commission determines that improper or questionable conduct did occur, but it was relatively minor, the Commission will dismiss the case with a cautionary letter to the judge.  In those matters, the Commission will advise caution, or express disapproval, of the judge’s conduct.  Neither a cautionary letter nor a letter of explanation is a form of discipline.

The Commission may also dismiss a matter contingent upon the judge satisfying conditions imposed by the Commission, which may include a period of monitoring of the judge's conduct in the bench. The failure of the judge to satisfy the conditions may result in reinstatement of the grievance.

When conduct that is more troublesome is found, the Commission may issue an admonition.  That resolution is designed in part to bring problems to a judge’s attention at an early stage in the hope that the misconduct will not be repeated or escalate.  An admonition consists of a notice to the judge containing a description of the improper conduct and the conclusions reached by the Commission.  Upon receipt of an admonition, a judge has 28 days to file a petition for review by the Supreme Court.  The Executive Director has 14 days to respond.  The Supreme Court then reviews the matter, and any resulting opinion or order is published and has precedential value.

Explanatory letters, cautionary letters, and admonitions are confidential (unless an admonition is reviewed by the Supreme Court at the judge's request, as described above).  Due to the rules of confidentiality, the Commission and its staff ordinarily cannot advise anyone of the nature of the action taken.  An exception is that the Commission is permitted to advise the grievant that corrective action has been taken, when it issues an admonition or cautionary letter to resolve its investigation.  Upon completion of an investigation that results in a straight dismissal, or the issuance of an explanatory letter, the grievant will simply be advised that the Commission has closed the matter.  

Please note: Regardless of the resolution of the matter, the Commission will not return or photocopy materials that are provided to it by the grievant, or produce documents that are otherwise obtained in the course of the investigation process.  The grievant should maintain copies of the materials submitted to the Commission.

For generalized summaries of the conduct which resulted in explanatory letters, cautionary letters, and admonishments for the most recent year available, please see the Recent Commission Actions and Notices page.

In circumstances where the misconduct is more serious, but not necessarily serious enough to warrant a formal complaint, the Commission may recommend that the Supreme Court privately censure the judge after a comment is obtained under MCR 9.207(C)(1).  Such a sanction is more severe than an admonishment by the Commission as it is rendered by the Supreme Court.

 

PUBLIC DISPOSITION OF GRIEVANCES

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. MCR 9.207(C)(1).  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 9.209.  The formal complaint, the judge’s answer, and all subsequent pleadings are public documents, available for inspection at the Commission’s office.

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.  MCR 9.219.

Hearing
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 an examiner appointed by the Commission.  The Michigan Rules of Evidence apply to the hearings, which are conducted like civil trials.  MCR 9.211(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 the examiner 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 Supreme Court Hearing
Within 21 days after issuing its Decision and Recommendation, the Commission files the original record in the Supreme Court 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.  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.

CONFIDENTIALITY OF COMMISSION PROCEEDINGS

The Michigan Constitution authorizes the Supreme Court to provide for the confidentiality of complaints to and investigations by the Commission, Michigan Constitution; article 6, section 30.  The court rules provide that complaints and investigations are privileged and confidential, subject to certain exceptions, unless and until a formal complaint is issued.  MCR 9.221. 

The instances where the confidentiality and privilege provisions may not be applicable are fully addressed in MCR 9.221.  One provision is that under MCR 9.221(B), the Commission may make public statements during the investigating stage if, on its sole determination by majority vote, it is in the public interest to do so.  Nevertheless, the Commission’s statement, if any, is limited to the fact that (1) there is an investigation pending, (2) the investigation is complete and there appears to be insufficient evidence for the Commission to file a complaint, or (3) with the consent of the respondent, that the investigation is complete and some specified disciplinary action has been taken.

Pursuant to MCR 9.221(D), when formal proceedings are instituted, the formal complaint, answer, and all subsequent pleadings, the formal hearing, and the hearing before the commission provided for in MCR 9.216 are open to the public.  Materials filed with and proceedings before the commission prior to the issuance of a formal complaint remain confidential unless offered into evidence in a formal hearing.  Commission deliberations during formal proceedings remain confidential.

Additional provisions addressing discretionary waiver of confidentiality or privilege, a public safety exception, and terms of disclosure to the grievant, state court administrator, and attorney grievance commission are also contained within MCR 9.221.