During a six-minute hearing a judge first fined an attorney for contempt, then ordered him taken into custody.
The Commission agreed with the judge that the transcript could not convey the attorney’s “combative tone” and did not question the judge’s ability to maintain decorum in their courtroom. The Commission acknowledged a judge’s authority to exercise control over the courtroom, including the power to punish inappropriate behavior through contempt. It noted, though, that a judge’s discretion to use the contempt power is not unfettered. The Michigan Supreme Court noted in Matter of Hague, 412 Mich 532, 555 (1982), and subsequent cases, that the contempt power is “awesome” and must be used with utmost restraint.
In light of this authority, the Commission was concerned with the swiftness with which the judge resorted to incarcerating a member of the bar attempting to advocate for his client and was concerned that the judge may have overreacted to the situation. The judge’s use of contempt in this manner could have been a violation of the requirement of Canon 3(A)(1) that a judge be faithful to the law (including case law interpreting the law) and the requirement of Canon 3(A)(14) that a judge treat all persons fairly. The Commission dismissed with caution to exercise the contempt power, including the power to incarcerate someone for disrespectful behavior in court, with great restraint.
The Commission admonished a judge for creating an appearance of impropriety, in violation of Canons 2(A), 2(B) and 2(C), by allowing social and family relationships to influence their conduct, and by using the prestige of their office to advance personal business interests of their friend and their son, when presiding over an arraignment and appointment of counsel.
The judge was a long-time friend of the defendant in a criminal case. Despite the friendship, the judge arraigned the defendant and considered the defendant’s request for appointed counsel. The judge knew that the request for appointed counsel was incomplete, and chose to rely only on additional facts that favored the defendant’s request, by noting facts that showed the defendant’s debts while ignoring facts that showed their income. The judge then appointed the judge’s own child to represent the defendant.
The Commission stated that arraigning the defendant was not, in and of itself, misconduct. It found that the judge crossed the line of proper behavior when considering and granting the long-term friend’s incomplete and misleading request for court-appointed counsel.
The Commission found that it was even more improper for the judge to appoint their child to represent the defendant. The Commission found that the judge’s argument that they only signed a blank appointment order, and that it was the court administrator who selected the child’s name from a rotating list of attorneys maintained by the court, was unpersuasive. The Commission noted that it is the judge’s name, not the court administrator’s, that appears on the appointment order, and as a judicial officer, the judge is responsible for the contents of orders that bear their signature. Further, the judge’s signature on a blank order created the impression that they were circumventing what would otherwise be their inability to provide their child with cases. The Commission also noted that the court administrator was also the judge’s court reporter, and the transcript in the matter showed that the selection of an attorney was done during the arraignment hearing over which the judge had presided. Therefore, the judge was well aware that the judge’s child was selected as the attorney.
The Commission rejected the judge’s defense that the judge had done the same thing in nearly 100 other cases without an issue, noting that a history of bad conduct did not excuse this instance of bad conduct.
The Commission reviewed grievances concerning inappropriate statements made by a judge in two separate cases.
One grievant was a defendant in a case involving two misdemeanors. The transcript showed that during the arraignment, the defendant was being difficult and trying to assert nonsensical sovereign dogma. When the grievant requested to see the verified criminal complaint, the judge replied that they “(didn’t) have to show (the defendant) a damn thing,” and then stated “Here’s how it works at the District Court level. I am a king on my throne. I can do any damn thing I want to because I’ve got a guy with a gun and a taser to enforce. The only thing you can do is appeal me to the Circuit Court.”
The second grievant was a defendant in a foreclosure case and was also noted to be an extremely difficult litigant. When discussing amending an order, the judge stated to the grievant that “With all due respect, if I amend one of my orders, it’s amended. It’s my order. I can do whatever I damn well please with my order,” and then told the grievant to “go away.” In their comments to the Commission, the judge acknowledged that there was a better way to have told the grievant that the hearing was over.
The Commission dismissed with the explanation that the judge’s comments were disrespectful and discourteous, in violation of Canons 2(B) and former 3(A)(10) [now 3(A)(14)]. They were also undignified, in violation of Canon 3(A)(3). In dismissing the complaints with only an explanation the Commission took into account that the comments were made in cases with extremely difficult litigants and noted that the judge had expressed remorse and acknowledged their lack of judicial temperament.
A judge was admonished for taking a year to resolve a motion for relief from judgment. The Commission found that the delay was unwarranted, particularly since the liberty of a criminal defendant was at issue.
The judge claimed to have reviewed the motion, and blamed the delay on the court’s Office of General Counsel, which processes motions for the judges. The Commission noted that if the judge had reviewed the motion as they asserted they had, they should have immediately recognized that testimony was needed before the prosecutor could file a response or the Office of General Counsel could provide an opinion. The Commission stated the judge’s first priority should have been to conduct and complete that hearing.
The Commission found that instead, the judge began a cycle of scheduling pretrials and/or hearings, some on distant dates; referring the matter to the Office of General Counsel; ordering responses by the prosecuting attorney before testimony was taken; and requiring outlines, all while the defendant was serving a prison sentence for a crime they possibly did not commit.
The Commission noted that Canon 3(A)(5) requires judges promptly to dispose of the business of the court. It stated that regardless of the impact of counsel and the Office of General Counsel on the pendency of a motion, this canon gives a judge an obligation to ensure that matters are resolved in a timely manner.
The judge also closed their courtroom to the media in connection with a case. The Commission found that even assuming the judge had a valid reason to limit the public’s and the media’s access to their courtroom, they failed to comply with the requirements of MCR 8.116(D). That rule requires a record of the specific reasons for the closure decision and that the closure be narrowly tailored to accommodate the interest to be protected, to permit any party objecting to the restriction to file a motion to set it aside or to make an on-the-record objection to it, and to file a copy of their closure order with the State Court Administrative Office. The Commission further found that the judge’s conduct was aggravated by the fact that their chief judge and their court’s legal counsel advised against closing the court. The Commission admonished the judge for violating Canon 3(A)(1) by failing to be faithful to the law and to maintain professional competence in it.
The Commission also investigated the judge’s work attendance. It found that the judge’s attendance was extremely poor in both the year of the investigation and the prior year. The judge missed 66 days in one year, which was more than one quarter of the scheduled working days, the vast majority of which were personal time off. In the following year, the judge missed 46 working days, of which only one was a sick day. The Commission stated that the judge’s excessive absenteeism violated MCR 8.110(D)(3). It also found that the judge violated Canon 1, which requires a judge to maintain an honorable judiciary and to personally observe high standards of conduct so the integrity of the judiciary is preserved, and Canons 2(A) and 2(B), which require a judge to promote public confidence in the judiciary, avoid impropriety, and act in a manner to promote public confidence in the integrity of the judiciary.
The Commission further found that the judge failed to report significant amounts of these days off, thereby failing to follow proper administrative procedures in violation of Canon 3(B)(1).
Finally, the Commission was concerned with the judge’s lack of candor in their responses to the Commission. The Commission found that the judge clearly did not ask for a vacation day off for a date they claimed. The judge asserted that there was no evidence of their failure to ask for the day off. The Commission found that this improperly shifted the burden away from the judge. In addition, the Commission found substantial evidence that the judge’s failure to report vacation days was a common practice.
The Commission dismissed with an admonition.
A judge issued a bond order after granting a motion for their recusal. The Commission found that once a judge has determined that a basis for disqualification or recusal exists, the judge should refrain from taking any action in a case, except to issue an order memorializing that decision, or any decision made prior to the disqualification.
n to the Commission referred to the criminal histories and/or professional disciplinary history of a party and the grievant. The Commission stated that these comments were unwarranted, and that these parties’ actions and prior history were irrelevant to the judge’s misconduct. The Commission stated that regardless whether individuals have a criminal or disciplinary past, or even are currently a criminal defendant, they deserve to be treated with integrity and impartiality by a judicial officer as required by the Canon 2(B). The Commission cautioned the judge for creating an appearance of impropriety in violation of Canon 2(A).
In addition, the judge’s photograph was used in a candidate’s campaign for state representative, in violation of Canon 7. The Commission acknowledged that the judge had not authorized the use of the photograph, but reminded the judge that the mere presence of a photograph or name of a judge on a candidate’s website would reasonably cause any member of the public viewing the site to conclude that the judge supports the candidate, and thus could be deemed an “endorsement.”
The Commission cautioned the judge to take care in the future to ensure that acquaintances who have aspirations for partisan public office know that photographs taken with them are not to be utilized in campaign materials and that their name is not listed on their campaign websites or mailings.
A judge appointed a private attorney as a “discovery master/facilitator” in a case that was assigned to the judge. The Commission determined that the appointment was solely so the judge would not have to preside over the motion hearings, which had the potential to be long and tedious. The Commission found that it was unnecessary for the parties to pay a private individual to make the judicial decisions that are within the judge’s authority and jurisdiction, and that the judge is already paid to make.
The Commission found that the appointment violated Canon 3(B)(4), which provides that “a judge should not cause unnecessary expense by making unnecessary appointments.” The Commission stated that the essence of a judge’s job is to judge, and despite the judge’s claim that was a difficult and “highly charged” case, a judge does not have the authority to delegate their judicial responsibilities. Carson Fischer Potts v. Hyman, 220 Mich App 116 (1996); Oakland County Prosecutor v. Beckwith, 242 Mich App 579 (2000); and Canons 2(B) and 3(A)(1).
The Commission disagreed with the judge that the appointment was akin to an appointment of an expert, pursuant to MRE 706. It found that the appointed attorney was not an expert. It noted that the function of an expert is to supply expert testimony after a proper foundation has been laid, and not to issue an opinion or recommendation on questions of law.
The Commission also rejected the judge’s assertion that they intended to have the private attorney mediate the matter, since the judge had not issued an order pursuant to MCR 2.410 and 2.411. The Commission stated that had the judge issued an order under these rules, the parties could have indicated that they had already agreed to have a former judge as a mediator, which the judge would then have had a duty to accept. Additionally, by choosing this private attorney to mediate, the judge would have violated MCR 2.411(A) (3), which requires that a mediator be selected from a rotating list of properly trained and qualified mediators maintained by the circuit court.
The Commission dismissed with a caution not to issue orders which are not supported by law and which result in unnecessary costs and expenses to the parties.
14-7
A judge listed the names of other judges and judicial officers as members of their campaign fundraising committee. When asked, the judge stated that listing their fellow judges in this way was inadvertent.
The Commission accepted the judge’s assertion that the listing was inadvertent, but pointed out that Canons 7(B)(2)(a) and 7(B)(3) prohibit judges from soliciting funds for their own campaigns and from accepting contributions of any kind on their own behalf or on behalf of any other judicial candidate. In addition, Canon 4(D) prohibits judges from allowing their names or titles to be used in any advertising that involves solicitation of funds.
The Commission advised the judge that a judicial officer whose name is listed on a solicitation of the sort the judge used here might receive a letter from the Commission. It said the judge should avoid placing any such suspicion on their fellow judicial officers.
The Commission admonished the judge for their use of other judge’s names, in violation of the canons listed above.
A judge held a hearing on summary disposition, but did not rule for eleven months after the motion was submitted. Several months into that time, the judge did not respond to an email from counsel inquiring about the status of a ruling.
The judge explained the failure to respond to the email by claiming that their staff has no recollection of it. The judge explained the failure to issue an opinion by claiming that their staff had informed them that the matter had settled and therefore an opinion would not be necessary.
The Commission found that even if the judge thought the case had settled, they needed to ensure that before ignoring it.
The Commission dismissed with an admonition. It reminded the judge that Canon 3(A)(5) and Supreme Court Administrative Order 2013-12 mandate that a judge promptly dispose of the business of the court. The Commission stressed to the judge that they are responsible for the cases on their docket and for what happens in their court, and should not and cannot blame their staff for lapses.
A judge gave permission for a sign supporting a candidate for nonjudicial office to be placed on their property. The Commission pointed out that Canon 7(A)(1)(b) prohibits a judge from publicly endorsing a candidate for nonjudicial office.
The judge defended on the basis that the Commission had previously determined that the canons did not prohibit a judge from making campaign contributions to nonjudicial candidates, even though the contributions are subject to public disclosure. The Commission disagreed. It stated that unlike campaign contributions, yard signs and similar advertising unquestionably run afoul of Canon 7, due to their overt and highly conspicuous nature.
The judge also claimed a First Amendment right to support the candidate. Again, the Commission disagreed. It directed the judge to Canon 2(A), which states in part that a judge must expect to be the subject of constant public scrutiny, and must therefore accept restrictions on conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.
The Commission dismissed with an admonition.
A judge was charged with misdemeanor “operating while intoxicated,” in violation of MCL 257.625(1), and ultimately pled guilty to the reduced misdemeanor offense of driving while impaired, in violation of MCL 257.625(3). Immediately after the incident, and well before the guilty plea, the judge self-reported their arrest and charge to the Commission, and the Commission recognized that the judge acknowledged the facts relating to their transgression.
The Commission found that the judge’s crime inhibited public confidence in the integrity of the judiciary. It noted that it typically pursues public action against judicial officers who violate Canon 2(B) in this way. However, the Commission dismissed with an admonition because the judge’s resignation of their judicial office rendered any formal action moot.
In relation to a charitable event that the judge participated in organizing, they signed a letter to a contributor, written on court stationery, requesting a contribution.
The Commission accepted the judge’s explanation that the wording of the letter was an error, and that they did not personally solicit funding for this event. Nonetheless, the judge had signed the letter and had it sent, in direct violation of Canon 4(D)’s prohibition against judges soliciting money or using the prestige of office for that purpose. The Commission noted that the judge accepted responsibility and expressed regret.
Because the judge used court stationery, personally signed the letter, and the wording of the letter was such a clear violation of an unambiguous canon, the Commission dismissed with an admonition.