An appellate judge made comments to a newspaper regarding a pending case in district court, endorsing the investigation and resulting charges against the defendant and stating their belief that it was debatable whether the defendant would get a fair trial in the current venue. Canon 3(A)(6) as in effect at the time prohibited a judge from making a public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court.
The judge said they were not familiar with Canon 3(A)(6) at the time they made their comments. The Commission acknowledged this, and stated that it did not think the judge had deliberately violated the canon.
The judge further defended the remarks by asserting that they concerned the proper administration of justice – specifically, the doctrine of presumed prejudice – and were therefore not a comment on a pending case. The Commission disagreed. It found that the judge’s comments were not couched in terms of general presumed prejudice, but were aimed squarely at the defendant’s case. The Commission also noted that even if the judge’s intent was to educate the public on presumed prejudice methodology, Canon 3(A)(6) did not then permit comment on a pending case even when the comment was made to further some other ultimate goal.
The judge also defended the statements by claiming that given their nature they could not possibly influence the case in any way. The Commission disagreed, and noted that case-specific comments were prohibited by Canon 3A(6), regardless of whether the statement would actually influence anyone.
Finally, the judge defended their comments that endorsed the investigation and resulting charges against the defendant by asserting that the statement was merely an observation, and that no prosecutor should bring charges until there has been a thorough investigation. The Commission agreed that then Canon 3(A)(6) drew a distinction between making a general comment about the law and making a comment about a specific pending case, but disagreed about what this judge had done. It found that the judge had specifically commented that this investigation in particular was thorough, and not merely said that prosecutors should always be careful before bringing charges.
The Commission dismissed the matter with an admonishment pursuant to MCR 9.207(B)(4). The Commission acknowledged the judge’s statement to the Commission that they would avoid future violations of the canon simply by refusing to make any statements to the press. The Commission noted that this was not necessary, and pointed out that then Canon 3(A)(6) did not prohibit all public comment by judges, and advised the judge that it is in their discretion whether they speak with the media.
A judge stated during a felony sentencing hearing that it was their practice to sentence a defendant at the top of the guidelines following a jury trial. During the Commission’s investigation, the judge advised that they had made similar statements in two other cases after they had failed to convince the defendants to take a guilty plea. The Commission found that these statements violated Canons 2(A) (impropriety and appearance of impropriety), 2(B) (observing the law and promoting public confidence in the integrity and impartiality of the judiciary) and 3(A)(9) (a judge should follow the usual methods of doing justice), and expressed concern that these statements can influence a defendant to give up their right to a jury trial when they might not otherwise do so.
The judge explained that their intent was not to punish defendants, but rather, to reward defendants who acknowledge their actions with a guilty plea. The Commission noted that the Court of Appeals has ruled that this is a distinction without a difference, and it has the same impact as punishing those who assert their right to a jury trial. While the Commission accepted the judge’s assertion that they did not actually maintain such a practice, as illustrated by transcripts of other cases, the Commission cautioned the judge to refrain from making any such statements and to be careful to follow the law.
The Commission also found that during a sentencing hearing in another case early in their judicial career, the judge engaged in inappropriate dialogue with a defendant with an unprofessional temperament, in violation of Canon 3(A)(3). The Commission noted that the judge met with their chief judge concerning this interaction and acknowledged the impropriety of their actions. The Commission cautioned the judge to be patient, courteous and dignified to every defendant.
17-3
A case was filed before a judge in May 2014. After discovery, a motion for summary disposition was filed in March 2015, and the hearing on the motion was conducted in September 2015. The last brief was filed in October 2015.
The matter was considered “submitted” to the judge as of the filing of that last brief, per MCR 8.107. The judge’s opinion did not issue until February 2017.
The judge advised that they had dictated their opinion within days of the last brief being filed, but the opinion was accidentally not typed or filed. The judge advised that the failure was the fault of their secretary, who was since terminated. The judge stated that they were unaware that the opinion was not filed until an inquiry from the plaintiff’s attorney in February 2017. The judge finally issued their written opinion in May 2017.
The judge had previously been disciplined for excessive delay. They stated that after the prior discipline they had changed how they and their clerk conducted business, and that they would ensure that a “next action” date was entered into the computer. The judge institute a “four person” check, which put the responsibility of ensuring that work was done timely on four separate people.
The Commission found that the judge apparently did not follow the improved practice in this case. After the September 2015 hearing, the clerk entered the time frame the briefs were due, but did not enter a “next action” date and there were no court dates scheduled between the hearing in September 2015 and May 2017. Under the four-person check the judge had described, the Commission found that the judge should have detected the clerk’s failure.
The Commission found the judge’s explanation credible, but advised the judge that they are ultimately responsible to ensure that court staff performs their tasks, and that it was their responsibility under the court rules to have their opinion timely filed. It expressed concern that the case was pending on the judge’s docket for over three years until it settled, and stated that the length of time to resolve the case was unacceptable, and in violation of Canon 3(A)(5)’s requirement that judges dispose promptly of the business of the court.
The Commission noted that its decision in this case was influenced by the fact that the judge had taken initiatives to improve their practice after the prior discipline. After reviewing the judge’s comments and explanations, the Commission determined that this case was an isolated incident rather than evidence of a pattern of delay as in the past. The judge indicated that they were willing to apologize to the parties for their inconvenience, which the Commission encouraged, so as to demonstrate respect to the people served.
Although the judge credibly explained the delay, the Commission could not ignore its severity and the judge’s part in it, and admonished the judge to take proactive steps to ensure that such problems do not reoccur. The Commission further reminded that judge that given their disciplinary history, they should be particularly careful to avoid future unwarranted delays.
17-4
A referee was admonished for a significant delay in issuing their recommendation on a party’s modification review request in a child support matter. The referee was waiting for briefs and pay stubs that were not timely submitted by the parties, and in doing so allowed the matter to remain unresolved for six months.
The Commission acknowledged that the referee accepted full responsibility for the delay in the case, and stated that they should have resolved the matter without the documents. The Commission pointed out that the referee could also have more aggressively compelled the parties to provide the needed materials. The Commission agreed with the referee that the delay was excessive and that the referee was responsible.
The Commission concluded that the delay was unnecessary, but not misconduct. It recognized that the efforts by the referee to resolve the matter were frustrated by the parties, and that the referee decided the matter shortly after the hearing was scheduled. The Commission noted that the referee had discretion to proceed in that manner.
However, the Commission was left with the impression that the referee had provided it with misleading information during the investigation. In explaining their delay, the referee characterized a hearing as integral to their ultimate decision. The Commission felt that the referee’s characterization was not consistent with video of the hearing, or their ultimate recommendation that was purportedly influenced by the hearing. That is, no one provided substantive testimony at the hearing, neither party questioned the other, the parties only briefly alluded to their financial circumstances, and the referee did not conduct a “best interests” analysis regarding the children. The Commission found that the referee’s recommendation did not rely on substantive evidence from the hearing at all. For these reasons, it appeared that the referee made misleading statements to the Commission in violation of now-MCR 9.202(B).
The Commission also found it troubling that that these acts were similar to matters for which the referee had been admonished five years previously, but noted that no other complaint about the referee had been brought to the Commission’s attention since that time. The Commission dismissed with an admonition.
17-5
The Commission investigated on its own initiative based on the interaction between a judge and an unrepresented litigant.
The judge sought to terminate the investigation by asserting that the litigant did not wish to have the matter pursued. The Commission disagreed, noting that its actions were independent of any third party’s desire.
The investigation showed that the judge had become angry when the litigant directed comments at another party rather than to the court, and did not cease as the judge wished. Without attempting significant intermediate measures, the judge attempted to control the litigant’s conduct by threatening to, or increasing, the litigant’s jail sentence. That angered the litigant and made physical intervention necessary to restrain them.
The judge admitted that they had become frustrated by the litigant’s behavior. In an effort to avoid future problems, during the investigation the judge received training on how to handle unrepresented litigants.
The judge’s action violated the requirements of Canon 3(A)(3) that a judge be patient, dignified and courteous, and 3(A)(14) that a judge treat all persons with fairness, courtesy and respect. The Commission appreciated the judge’s candid acknowledgment of error and efforts to improve. The Commission noted that under then MCR 9.207(A) (now MCR 9.202(A)), the judge was responsible for the conduct of the courtroom. The Commission cautioned that the judge had caused the conduct in the courtroom to be unacceptable. It dismissed the investigation with caution that the judge should focus on their demeanor and discover alternative methods to reduce tensions during court sessions involving unrepresented parties.