A judge was grieved for excessive delay in issuing their opinion in a family law case. The judge had taken the case under advisement after the trial and receipt of written closing arguments, at which point the matter was deemed “submitted” under the MCR 8.107(A). Although the court rule requires that decisions be made within 35 days after submission, the judge took over 7 months to issue their opinion. The judge acknowledged this delay and excessive delay in rendering their opinion in two other cases as well.
The Commission found that the judge had not promptly disposed of the business of the court, contrary to Canon 3(A)(5). The Commission acknowledged that the judge was relatively new to the bench, and also that they were not a family law practitioner before taking the bench. The Commission also noted the judge’s confusion as to the use of the Record of Bench Trial in their circuit court’s family division. The Commission commended the judge’s candid acceptance of responsibility for the delays, the judge’s initiative to ask for the assistance of another judge to ensure matters are promptly resolved in the future, and the judge’s steps to ensure that their court’s family division is consistent in its use of the Record of Bench Trial document.
The Commission also reviewed the judge’s omission of the delayed matters from the judge’s Delay in Matters Submitted Reports. The Commission recognized that the omissions were a mistake on the part of the judge’s staff, and that once the judge became aware of the problem, they promptly implemented procedures to ensure that future delay reports were accurate. The Commission noted that while a judge is obligated to rely heavily on staff, it is ultimately the judge’s responsibility to ensure the accuracy of the staff’s work, in order to comply with the judge’s administrative responsibilities under Canon 3(B)(1).
The Commission dismissed the grievance with a caution to avoid similar difficulties in the future, subject to the condition that the judge notify the Commission when their opinion is issued in the then-unresolved delayed case. The Commission also encouraged the judge to apologize to the parties for the delay, and noted that a sincere apology both demonstrates respect to the people served and provides the grievants their only meaningful confirmation that their concerns were addressed.
A judge called the arresting officer to make a bond inquiry upon hearing that their friend had been arrested for a felony charge. The judge then called the magistrate to request that their friend be released from jail and given a personal bond. After the magistrate contacted the presiding judge on the judge’s behalf, and thereafter informed the judge that the presiding judge had denied the request, the judge sent the presiding judge an email expressing their disappointment in the decision. The next morning the judge appeared at the courthouse and spoke to the prosecutor, who was aware of the judge’s status as a judge, on behalf of their friend.
The Commission found that the judge’s actions violated Canon 2(A), which states that public confidence in the judiciary is eroded by irresponsible or improper conduct by judges and that a judge must avoid all impropriety and appearance of impropriety. The Commission found that the judge’s actions also violated Canon 2(C), which prohibits a judge from using the prestige of office to advance the personal interests of others, and instructs that a judge should not allow family, social, or other relationships to influence judicial conduct or judgment.
The Commission appreciated the judge’s candor and remorse. It recognized that the judge self-reported their conduct, and that in the judge’s self-report and their answers to the Commission’s follow-up questions, the judge forthrightly acknowledged their efforts on behalf of their friend. The judge explained that they had acted only out of panicked concern for the mental health of their friend, and had no intent to use their position to that friend’s advantage. The judge acknowledged that their behavior created the appearance of impropriety, regardless of their motives or intentions.
The Commission dismissed with a caution to respect the restrictions that Canons 2(A) and 2(C) place on judges. The Commission instructed the judge to recognize that the position of judge creates inherent pressure on others to accede to their requests, and that a judge cannot negate the pressure by prefacing their requests with the statement that they are not, at a particular moment, speaking as a judge.
During sentencing for home invasion, a judge stated that the crime was one of the worst offenses they had seen, and that they wished the defendant had been caught in the act, because then the defendant may be getting buried rather than sentenced.
The Commission found that the judge’s language conveyed to an objective person that it was the judge’s desire that the defendant had been killed, rather than arrested and convicted, and that the statement could undermine the public’s confidence in the rule of law.
The Commission accepted the judge’s explanation that their intent was to impress upon the defendant the seriousness of the offense and the dangerous risk the defendant took by committing this crime. The Commission found, however, that the judge’s choice of words violated Canon 1 by failing to observe high standards of conduct so that the integrity of the judiciary may be preserved; Canon 2(A), because public confidence in the judiciary is eroded by irresponsible or improper conduct by judges, and because the judge created an impropriety and an appearance of impropriety; and Canon 3(A)(3), which requires that a judge be patient, dignified and courteous to litigants.
The Commission noted that the judge allowed their strong feelings about the crime to get the better of their judicial demeanor. The Commission acknowledged the judge’s admission that they should have framed their comments differently, and that the judge recognized they needed help with their courtroom demeanor through counseling. The Commission considered the judge’s stated intent, their candid acknowledgment that their actions violated the aforementioned canons and the admitted efforts of the judge to improve their courtroom demeanor.
The Commission dismissed with caution to be more circumspect with their choice of words and refrain from letting their emotions control their conduct.
Pursuant to a request by defense counsel for the return of property held as evidence, a judge called the officer in charge of the case (OIC) and left messages inquiring why the property was being retained for evidence. The judge left their personal cell phone number for the OIC to call back. The judge also requested the evidence tag numbers of the phones, after prosecutors denied the judge’s request to be provided with the investigator’s report.
The chief judge granted the prosecutor’s subsequent motion for recusal of the judge based on these incidents, and ruled that the judge’s calls to the OIC did not meet any of the exceptions for allowable ex parte communications in Canon 3(A)(4)(a).
The Commission agreed with the chief judge’s analysis. It noted that had the call to the OIC been limited to asking the OIC to appear in court to address the status of the evidence, which would have fit within the exception to the rule against ex parte communications for mere scheduling and administrative matters. The problem was that the judge’s inquiry regarding the evidence and its retention was a substantive communication, not merely for administrative purposes, and therefore was no longer protected by the exception.
The Commission also agreed with the chief judge’s finding that by leaving a personal cell phone number, the judge demonstrated a very real interest in pursuing a conversation with the OIC, in a pending case, as to why certain items of evidence were continuing to be held, thereby creating an appearance of impropriety that supported their disqualification under MCR 2.003(C)(1)(b)(ii) and Canon 2(A).
The Commission acknowledged the judge’s assertion that the prosecutor’s acquiescence to the judge’s office having some contact with the OIC led the judge to believe that some form of ex parte communication was acceptable. However, the judge’s comments to the prosecutor had suggested that any contact would be by their clerk, and the judge’s eventual contact exceeded the broadest reasonable interpretation of that to which the prosecutor had agreed. The Commission determined that directly contacting the OIC, with no apparent need to do so, demonstrated an unusually personal interest in this case that called the judge’s neutrality into question in violation of Canon 2(B).
The Commission noted that the judge’s conduct in this matter was similar to some prior actions for which they had been suspended by the Michigan Supreme Court. In this matter, as in the prior matter, the judge again failed to recognize the limits of their adjudicative role. The Commission expressed concern with the judge’s inability to appreciate that as a neutral jurist they cannot insert them self into a case and thereby give the appearance of impropriety to an objective observer.
The Commission dismissed with admonishment for not being familiar with, and not adhering to, the boundaries of the judge’s adjudicative role, and further admonished the judge for failing to understand that they may not engage in ex parte communications, even to enforce what they believe to be their otherwise lawful orders.
A judge was admonished for using the prestige of their office to promote their personal business interests
The judge appeared in a judicial robe, in the judge’s courtroom, in a newspaper article and a social media post that highlighted a product the judge was selling, in violation of Canon 2(C).
The judge defended the publicity by stating that they saw no reason to “hide” the fact that they are a judge, and they value transparency. The Commission pointed out that there is a significant difference between concealing or being transparent about judicial office, and affirmatively using that office to promote personal interests.
The judge also noted that under Canon 4(B) it is acceptable for a judge to sell products. The Commission noted that the judge did not appear to appreciate the impropriety of having posed with their product while on the bench, and failed to understand the interaction of Canon 2(C) and Canon 4(B). The Commission explained that while Canon 4(B) allows a judge to sell products, Canon 2(C) prohibits a judge from using their judicial office to promote the sale for profit.
The judge stated that the social media post was done by their agent without their knowledge and against their wishes. The Commission accepted that explanation, but observed that it is incumbent on a judge to closely control the activities of agents to ensure they do not do things the judge is forbidden to do.
A judge criticized another judge’s sentence of a defendant one day after the sentencing, and before the defendant had exhausted their remedies before the sentencing judge or their opportunity to appeal.
Then-Canon 3(A)(6) forbade a judge to comment on a pending case. The judge asserted that Canon 3(A)(6) did not apply because the case was no longer “pending” after sentencing. The Commission disagreed. It advised that a case is “pending” under Canon 3(A)(6) until the opportunity for appeal is exhausted, citing Grievance Administrator v. Fieger, 476 Mich 231, 248-49 (2006) (for purposes of attorney discipline rules, a court of appeals case is “pending” until times to file motion for reconsideration and application for leave to appeal to the Supreme Court have expired). The Commission also directed the judge to the ABA Model Code of Judicial Conduct, which states that a matter continues to be “pending” through any appellate process, until final disposition.
The judge also claimed that their comments did not disrespect the sentencing judge or degrade confidence in the judiciary. The Commission disagreed. It found that the judge clearly intimated, in strong language, that the sentencing proceeding lacked any semblance of fairness, and by making these highly critical statements, the judge failed to show respect to the sentencing judge. The Commission also found that the judge’s statements were reckless and made without any apparent effort to determine their accuracy, given mistakes of fact they included and their failure to acknowledge that the defendant had consented to the procedures the sentencing judge had followed.
The judge also argued that it was permissible to make comments of this nature to the sentencing judge’s “judicial persona,” so long as they were not directed at the judge personally. The Commission disagreed. It stated that comments that disrespect a judge as judge are no more protected, or any more respectful, than are comments that disrespect a judge as private citizen.
The judge also asserted that their critical comments actually promoted public confidence in the judiciary, by making “fair comment” on the operation of the court system, the rights of litigants, and the need for impartiality. The Commission found that the judge had not merely commented on the need for impartiality, but had gone on to tell the public that the sentencing judge was unfair. By denigrating the sentencing judge and their proceeding, the Commission found that the judge had disparaged the judiciary. Further, the judge had commented to the media that the case should be reversed on appeal. The Commission observed that if the higher Michigan courts disagreed, the judge’s comments could result in people concluding that the state judiciary is not fair.
Finally, the judge argued that their comments were protected by the First Amendment. The Commission stated that while judges do not lose all First Amendment protection upon becoming judges, the demands of being a judge place limits on First Amendment rights. The Commission stated that the First Amendment does not protect a judge who recklessly disrespects a colleague and disparages a judicial proceeding in intemperate language. It noted that Canon 2(A) states that a judge must accept restrictions on conduct that might be viewed as burdensome by the ordinary citizen.
The Commission dismissed with an admonition for violating then-Canon 3(A)(6), and for disrespecting the sentencing judge and undermining public confidence in the judiciary in violation of Canon 2(B). It noted that similar future conduct could result in a public complaint.