16-1

A judge was admonished for appearing extremely biased in two separate cases.

In one case the judge conducted a hearing to determine costs after the plaintiff mistakenly filed a garnishment against the wrong person. The plaintiff had admitted its error and had volunteered to pay costs. Nonetheless, the judge held a hearing that lasted five hours and produced a 165-page transcript. The majority of the hearing was focused on matters other than the defendant’s costs.

The Commission found that the length of the hearing was far beyond that which was necessary for the alleged purpose, and that the judge’s actions appeared to be more to punish the plaintiff than to determine costs. The Commission further found that the judge grossly abused their discretion by ordering costs that are not allowed by law, and ordering costs for speculative reasons, causing the plaintiff to appeal and requiring the circuit court to reduce the costs. The Commission determined that the judge’s actions were aimed at punishing the plaintiff rather than fairly compensating the defendant’s costs.

In the other case, the judge had a conflict with the plaintiff’s attorney and there was a standing disqualification order for any case in which that attorney appeared. The judge was aware that the clerk’s office assigned the case to another judge by blind draw, but the judge stated that they believed, without giving a basis, that there was an attempt to steer the case out of their courtroom, which they felt they should not allow. The Commission found that there was clearly a conflict between the judge’s interpretation of the standing disqualification order and the interpretation by the clerk’s office.

Rather than resolve this conflict, the judge proceeded with the case and granted objections, indicating that the plaintiff failed to appear. The judge did this knowing that the plaintiff had hired an attorney to appear on its behalf, and knowing that the attorney was in the courthouse. The Commission found it disingenuous for the judge to claim that they believed another attorney represented the plaintiff on the basis that the defendant had named the other attorney in its pleadings. The Commission determined that the judge knew or should have known that the previous attorney was no longer the attorney of record for the plaintiff. The Commission stated that the judge’s reliance on their court clerk’s statement that the previous attorney did not file a motion to withdraw, and that the new attorney’s appearance was not a substitution of attorney, was disingenuous and contrary to the law.

The Commission found that the judge granted the defendant’s objections to the proceedings but made no attempt to determine the legal validity or timeliness of the objections under MCR 3.101(K) and MCL 600.4061a, and gave the plaintiff no opportunity to be heard. The Commission concluded that the judge allowed their personal animosity toward the attorney to override their duty to follow the law, and violated the plaintiff’s rights. This was all in violation of Canon 2(B)’s requirement that judges promote public confidence in the impartiality of the judiciary, and Canon 3(C)’s requirement that a judge raise the issue of disqualification when the judge has reason to believe that grounds for disqualification may exist under MCR 2.003.

The Commission also noted that the judge’s answers to some of the Commission’s questions about their conduct were deficient, and that the judge had ignored some questions. The Commission found that the judge’s statements demonstrated that they failed to recognize that they ignored the court rules and consistently blamed others and pointed to conspiracies and corruption rather than address their own actions.

The Commission dismissed with an admonition and reminded the judge that they are accountable for their conduct.   

16-2

A judge was charged with carrying a firearm in a sterile area of a commercial airport, in violation of MCL 259.80f(2). The judge thereafter pled guilty and the matter was taken under advisement.

The judge advised the Commission that they have long held a concealed weapons permit as a result of threats that had been made against them, and that other than this incident, they have never forgotten to leave their weapon at home before traveling to the airport. The judge further advised that on this occasion, they grabbed their work briefcase and simply forgot that the weapon was in it.

The Commission noted that under MCLA 28.4250, a judge’s concealed weapons permit allows them to bring a weapon into many places that are prohibited to many others, albeit not in a sterile area of a commercial airport. The Commission also noted that the police report indicated that the judge was forthcoming when questioned about the firearm, as well as embarrassed and apologetic.

The Commission determined that the judge failed to be faithful to, and to respect, the law, in violation of Canon 2(B). In addition, the judge eroded public confidence in the judiciary through irresponsible behavior. The Commission dismissed the grievance with an admonition.

16-3

A judge was admonished for disconnecting a phone call with counsel for a party during a hearing in which counsel was participating by phone, and then engaging in ex parte contact with the opposing counsel.

The judge explained to the Commission that he disconnected the attorney because the attorney continued to argue with the judge after the judge explained the appropriate filing procedure. The Commission found that the judge violated Canon 3(A)(3), which mandates that a judge be patient, courteous and dignified to litigants. The Commission found that hanging up on the attorney during the hearing was not patient or courteous, and amounted to excluding a party from the courtroom. The Commission noted that the attorney’s conduct had not been so offensive as to warrant such exclusion.

The judge asserted that the hearing was no longer pending because they had made their rulings and had scheduled the next hearing at the time they hung up on the attorney. The Commission found, however, that they were not off the record and the matter was not recessed or adjourned at that time. In fact, the Commission determined that the hearing continued for an additional four minutes after the judge hung up, and that hanging up on the attorney therefore resulted in ex parte dialogue between the judge and opposing counsel pertaining to the merits of the case, in violation of Canon 3(A)(4).

16-4

A judge was simultaneously a part-time municipal judge and a shareholder of a law firm. The judge self-reported that their law firm paid a referral fee to a private attorney for cases the attorney referred to the judge and/or the law firm. The judge further acknowledged "handling" many of those civil cases, most of which were of a business nature. The judge also acknowledged that their law firm referred cases back to the attorney, and that the attorney paid a referral fee to the law firm.

At the same time, the attorney was also "house counsel" at the municipal court where the judge presided, but the judge never disclosed the financial relationship between the judge and the attorney to any of the litigants or attorneys appearing against the attorney. The Commission was troubled both by the judge’s conduct, and by the judge’s apparent lack of awareness that this was an ethical issue until their law firm pointed out the obvious issue.

The Commission stated that a lawyer should be aware that disqualification might be warranted even without a showing of actual bias. Where an attorney and a judge have a personal relationship, at a minimum that relationship should be disclosed to all parties in cases before the judge in which that attorney appears, under Canon 3(C). Canon 4 calls for judges to regulate extrajudicial activities to minimize the risk of conflict with judicial duties. The attorney’s practice before the judge without any disclosure of the relationship created an appearance of impropriety in violation of Canon 2(A).

The Commission noted the judge’s recent awareness of the ethical issues involved, and commended the judge for self-reporting the problem once aware of it. The Commission dismissed the matter with an admonition.

16-5

A grievant alleged that a judge should have disqualified themself. The Commission found no misconduct under Canons 2(A) or 3(C).

The judge had responded to the grievant’s request with a form letter advising them to file a motion or consult an attorney. The Commission’s dismissal alerted the judge that under MCR 2.003(D)(3)(a)(i),  they could have referred the motion for disqualification to the chief judge for review.

16-6

A judge participated in a meeting with a social support agency. During the meeting the judge became angry over a proposed word in a policy. Their anger was so intense that they were shaking, spitting, and pounding their hands on the table while referring to the support agency advocates as “hand holders” and their presentation as “nonsense talk.”

The judge rationalized their anger as due to opposition to the court being part of the social support team and their “passion for the court’s independence and integrity.” The Commission determined that these rationales in no way justified or excused the judge’s behavior. The Commission also determined that the judge’s actions belied their defense that they welcomed new ideas to their court.

The Commission appreciated the judge’s acknowledgment that they should have tempered their feelings of frustration and should have conducted themself differently, but determined that the value of this acknowledgment was diminished by their repeated unpersuasive and self-serving excuses in their responses to the Commission's inquiries.

The Commission found that the judge violated Canon 1, which requires a judge to personally observe high standards of conduct so that the integrity of the judiciary may be preserved, Canon 2(A), which requires a judge to avoid all impropriety as well as the appearance of impropriety, and Canon 3(A)(3) and MCR 9.205(B)(1)(c), which forbid inappropriate language, gestures, and tone of voice in connection with court business. 

In addition to the above, during arraignment the judge told the defendant that as a judge, they could tell the defendant when to urinate. The Commission found this to be a clear abuse of their authority and a flagrant flaunting of their judicial power. The judge also told the defendant that the police officers standing near him may lie to him. The Commission found no reason for the judge to say this. The Commission noted that although the judge admitted they should have considered the officers' feelings before speaking, the judge did not seem to recognize that their statement was not only needlessly offensive, it also demonstrated an improper prejudgment of the officers' credibility.

Finally, the Commission expressed concern about the judge’s long-term use of profanities with other judges, attorneys, court officers, their district court administrator, and a SCAO employee. The Commission reminded the judge that in accordance with Canon 2(A), they must expect to be the subject of constant public scrutiny and accept restrictions on their conduct that might be viewed as burdensome by the ordinary citizen, and that the use of profanities with people related to judicial business must be avoided.

The Commission dismissed with an admonition that if the judge engaged in similar conduct in the future, the Commission might file a public complaint.

16-7

A judge took 14 months to resolve an application for leave to appeal. The Commission noted that MCR 7.105(E) (2) provides that absent good cause, a court shall decide such an application within 35 days of its filing. 

The judge claimed that the clerk's office was responsible for the initial delay in forwarding the appellant's application to their court. The Commission found this unpersuasive in that, even assuming the judge did not receive the application immediately after it was filed, they became aware of its existence and still took another two months to issue an order directing the appellee to file a written response. Then, after the appellee filed the response, the judge took an additional eight months to make a decision. 

The Commission rejected the judge’s defense that the application did not fully explain the basis for the alleged error. It noted that the judge never requested a more detailed explanation. It also noted that the judge apparently understood the basis well enough to summarize them in the judge’s eventual decision.

The judge also defended on the basis that dispositions in proceedings regarding the appellant in another court would render these proceedings moot. The Commission rejected this argument, noting that it suggested the judge intentionally delayed their decision on the appellant's application until another court ruled on other matters unrelated to this case. The Commission found this improper, because the issue in the other court was not before this judge. It stated that if the judge believed a stay of the     proceedings in their court was justified, they should have issued an appropriate order which the appellant could have appealed. It noted that by not taking any action, the judge placed the application in limbo and left the appellant with no legal recourse.

The Commission also rejected as disingenuous the judge’s assertion that they did not decide the application because they realized the appellant had taken additional action to resolve it directly with the Michigan Court of Appeals. The Commission noted that the appellant had written to the judge regarding the status of their application, and that the judge not only failed to respond, but failed to take any action for the next eleven months.

The Commission dismissed with an admonition that the judge had violated Canon 3(A)(5), which requires a judge promptly to dispose of the business of the court, and Administrative Order No. 2013-12, which calls for appeals from district to circuit court to be adjudicated within 182 days from the filing of the claim of appeal. The Commission noted that similar misconduct in the future could result in a public complaint.

16-8

After a motion to terminate or modify a Personal Protection Order (PPO) came before a judge for hearing, the judge, in agreement with counsel, inappropriately referred the matter to another judge who lacked jurisdiction over the matter. The judge later questioned the competency of movant’s counsel, with no foundation for doing so, after counsel had correctly described the agreed referral.

During the Commission’s investigation, the judge stated that they regretted their comment and acknowledged that it was an inappropriate thing to say in open court. The Commission appreciated that, but noted that the judge had still failed to acknowledge that counsel was actually correct, and that questioning counsel’s competency was inappropriate not only in open court, but always.

The judge explained their intemperate statement by claiming that they had been frustrated that movant’s counsel had not prepared an order. The Commission noted that this concern was not reflected anywhere in the transcript, and advised the judge that while reproaching a lawyer for a failure to prepare an order can be done in open court, it does not rise justify questioning an attorney’s competency.

As of the date of the hearing at which the judge made the intemperate comment about counsel, the motion had been pending for more than four months. The Commission noted that MCL 600.2950a and MCR 3.707(A)(2) provide that a hearing be held within two weeks from filing, so a litigant can have a timely resolution to a motion challenging a PPO.

The judge defended the timing by stating that the hearing had been scheduled directly by the referee’s clerk. The Commission rejected this defense. It noted that the judge should have reviewed the court’s scheduling procedures to ensure that the deadlines for resolution were satisfied to the extent possible.

The Commission found that the judge violated Canon 3(A)(1)’s requirement to be faithful to the law and maintain professional competence in it; Canon 3(A)(5)’s requirement that a judicial officer dispose promptly of the business of the court; and Canon 1’s requirement that the judge be aware that the judicial system is for the benefit of the litigant and the public, not the judiciary.

The Commission dismissed with a caution to review the court’s scheduling procedures to ensure that the requirements of MCL 600.2950a and MCR 3.707(A)(2) are satisfied.

16-9

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. The Commission noted several cases in which the judge had deliberately delayed.

In one case, the judge adjourned oral arguments on an application for leave to appeal six times over 18 months, then ultimately granted the application without oral argument. In another case, the judge took a matter under advisement after trial; four months later issued a sua sponte order for additional evidence, which evidence then took four more months to produce; and then took the matter under advisement for an additional nine months before ruling. In a criminal proceeding the judge twice failed to decide a remand within the time specified by the Michigan Court of Appeals and the Michigan Supreme Court – by six months on the first remand, and by four months on the second. In yet another case, the judge adjourned oral closing arguments four times over eight months before having the parties submit them in writing; once the judge took the matter under advisement, a party filed an additional motion, taking a total of eight months for the judge to rule on the trial and motion.

The Commission’s investigation revealed several additional excessive delays, due to the judge’s inefficient docket management. The Commission observed that trials and evidentiary hearings should not take months or years to complete. The Commission acknowledged that the judge regularly worked a full day in court and did not take excessive hours off, but also noted that the judge’s caseload was not higher than other judges in other circuit courts, so concluded that the judge should be able to resolve their cases in a timely manner.

The Commission disagreed with the judge’s assertions that others were responsible for the delays. It noted that, although it was reasonable to grant adjournments requested by attorneys or parties as was done in some cases, hearings should not be rescheduled to months later. The Commission stated that it was the judge’s responsibility to ensure that cases are scheduled and heard in a timely manner, regardless of the actions of the parties, attorneys, court staff, or other factors, and that if the judge resolved their cases more promptly, hearings could be scheduled on earlier dates.

The Commission admonished the judge for these excessive delays, in violation of Canon 3(A)(5). The Commission also reminded the judge of MCR 3.210(C), which requires a judge to hold a hearing on the custody of a minor within 56 days after the filing of a notice that a custody hearing is requested, and for a judge to make a decision within 28 days after the hearing. The Commission also pointed out MCR 8.107, which states that matters under submission to a judge should be promptly determined, and that decisions, when possible, should be made from the bench or within a few days of submission and no later than 35 days after submission.

The Commission also found that the judge engaged in ex parte communications, in violation of Canon 3(A)(4). It found that in a post-judgment divorce proceeding, the judge had two phone conferences with a minor and replied to a letter received by the minor, without advising or copying the parents or counsel. The Commission found that a judge may conduct conferences with minors in custody proceedings to assess preferences, and while there is no duty to disclose the content of the discussion, the parties must be informed of whether a custody preference expressed by the child was considered, evaluated, and determined pursuant to MCL 552.507a.

The Commission also noted an adoption case in which the judge received a letter from one party that had substantive communications regarding the merits of the case. The judge replied, giving advice to that party, without copying another individual who also had an interest in the matter.

In another case, the judge had arranged for an attorney to appear on a party’s behalf in a contempt proceeding, but failed to ensure that the attorney was served with court notices and was involved in every proceeding.

The Commission admonished the judge for these ex parte communications.

The Commission also considered still more misconduct. On the first remand of a case, the judge failed to follow the remand order issued by the Michigan Court of Appeals, by not limiting their actions to conducting a Ginther hearing as the Court had directed, and instead inviting, considering, and granting a defense motion for a new trial. The Commission admonished the judge for violating Canon 3(A)(1) by failing to be faithful to the law and maintain professional competence in it. The Commission reminded the judge that they are constrained to follow the law, and to only act as the law allows.

The Commission noted that the judge had been previously admonished for other conduct, including their demeanor, taking matters into their own hands as to a case, a lack of knowledge regarding the law, and ignoring the law and imposing a sanction without following proper procedure, thereby violating a grievant’s due process rights.

The Commission stated that it seriously considered filing a public complaint based on this investigation. It chose instead to dismiss with an admonition because the delays did not appear to be due to a poor work ethic. In addition, the Commission referred the matter to the State Court Administrative Office to assist with the judge’s docket management. The Commission also advised the judge to consult with SCAO regarding ex parte communications, to ensure that proper guidelines are utilized. The Commission emphasized Canon 1, which states that a judge should always be aware that the judicial system is for the benefit of the litigant and the public, and stressed that litigants and the public are not served by hearings and trials that take years to complete, when judges do not follow orders issued by higher courts, and when judges engage in ex parte communications. It warned that similar conduct in the future would like result in a public complaint.