A judge violated Canon 2(C) when they permitted a business entity that handled their campaign to utilize the prestige of their judicial office in relation to its marketing efforts.
The judge was told initially that the campaign materials the business had created for the judge would be used for a school project and for marketing purposes. The judge approved the request to use the materials for the school project, but did not make it explicitly clear that the video could only be used for school purposes. Although the judge did not expressly authorize the business entity to use the judge’s name for marketing purposes, the Commission determined that the judge should have expressly rejected the business’s request.
Further, once the judge learned that the business entity had issued a marketing video and email newsletter promoting its successful campaigns for elected office that included references to the judge’s name, judicial title and office, the judge should have taken prompt action to advise the business entity that it could not use that material for marketing purposes.
The Commission found it troubling that the judge’s answers to the Commission’s initial questions did not fully acknowledge the violation, but appreciated that the judge’s supplemental answers did candidly acknowledge their responsibility for violating Canon 2(C). The Commission also considered that the judge was very new to the bench.
The Commission dismissed the matter with a caution that the judge should ensure that any entities retained to provide services for future campaigns are aware they cannot use the judge’s campaign material in their marketing efforts.
At a sentencing hearing a judge refused to accept a plea agreement for HYTA status unless the defendant revealed the source of their narcotics. The Commission was concerned in part with whether the judge sought the information to further the efforts of law enforcement. The judge explained that their goal was not to obtain information for law enforcement purposes, but to determine whether the defendant would be a successful HYTA candidate. To that end, the judge made several unsuccessful attempts to get the defendant to divulge their source. As part of that effort, the judge reminded the defendant of the maximum prison sentence he faced. When that did not work, the judge ordered the defendant to go to a holding cell attached to the courtroom, without their lawyer present, to get a sense of what it felt like to be locked up.
The Commission found that the judge’s actions violated Canon 3(A)(1) and Canon 3(A)(4). The judge stated their intention was to communicate to the defendant that a cell was not for him and to try to encourage the defendant to be forthcoming regarding their source of narcotics. The Commission accepted the judge’s candid explanation and found that their goal was laudable.
The judge believed that it was not coercive to put the defendant into the holding cell. The Commission determined that having put the specter of maximum imprisonment in the defendant’s mind, putting the defendant in the cell shortly thereafter, without cause to do so, was undoubtedly coercive. The judge ordered the defendant into a cell although he had committed no contempt or other misconduct, in violation of violated Canon 3(A)(1), which requires a judge to be faithful to the law. In the process of doing that, the judge had an ex parte conversation with the defendant, in violation of Canon 3(A)(4).
The Commission noted the judge’s distinguished career, and dismissed the grievance with a caution to the judge to respect the limits of their authority.
A judge presided over a motion to suppress evidence, obtained pursuant to a search warrant signed by the judge’s family member who is also a judge. After presiding over the hearing the judge issued an order upholding the search warrant. The defendant filed a motion to recuse the judge, alleging that ruling on the search warrant created the appearance of impropriety. The judge then vacated their opinion and recused themselves with respect to the search warrant, but denied the motion to recuse themselves entirely from the case.
MCR 2.003(C)(1)(b) requires a judge to disqualify themselves if they have a conflict that creates an appearance of impropriety under Canon 2, unless the parties waive the conflict under MCR 2.003(E). The judge’s failure to recognize the conflict when the case was assigned to them, or at the latest, when the motion to suppress was filed, delayed resolution of this case. The case was delayed further because the judge recused themselves only partially. The Commission found no misconduct because the judge ultimately recognized the appearance of impropriety and the duty not to review the search warrant that had been signed by a family member.
The Commission dismissed the grievance but noted that the same conflict will arise in any future case in which the judge may be asked to review an action of their family member judge. It advised the judge that in order to prevent future delays or potential misconduct, they should promptly recognize and resolve any such future conflicts.
A referee had been serving a term with the city commission when they initially accepted the position as a referee. This violated Michigan Constitution, Art. 6, § 21, which states that a judge may not hold elected office during the period of judicial service. When the referee’s term with the city commission expired, they ran again while still holding the position of juvenile attorney referee, in violation of Canon 7(A)(3), which provides that a judge should resign the judicial office before becoming a candidate either in a party primary or in a general election for nonjudicial office.
The referee advised the Commission that the court officials who appointed them as a referee were fully aware of their position on the city commission and did not object, because they thought the possibility of conflict was so remote and unlikely to occur that serving in both offices was possible. The referee noted that a SCAO regional administrator, who was presumably aware of the judge’s dual positions, had also approved their appointment as a referee without any question or issue. The referee further noted that they included their commissioner salary on the financial report they provided to SCAO.
The referee believed that it was appropriate for them to be a juvenile attorney referee while continuing to be on the city commission, and also that it was appropriate for them to run for reelection to city commission while holding the position as juvenile attorney referee. The referee contended that the Code of Judicial Conduct did not apply to them because it was written only for elected judges. The referee further maintained that Canon 7(A)(3) is written in discretionary, not mandatory, language. The similarly described State Bar of Michigan Ethics Opinions JI-010 and JI-059 as non-binding, and as addressing “a gray area of the law regarding the activities of part-time quasi-judicial officials.” The referee argued that these opinions do not bar dual appointments, and in fact, they actually open the door to certain permissible activities for part-time referees that are not available to elected judges.
While the Commission commended the referee for their complete answers to the Commission’s questions, the Commission found that the referee misunderstood their ethical responsibilities. MCR 9.201(B)(2) explicitly states that for purposes of the ethical rules, “judge” includes a referee. The Michigan Constitution, Art. 6, § 21, states that a “judge” may not hold elected office during the period of judicial service. MCR 9.205(B)(2) explicitly states that it is misconduct for a “judge” to violate the Code of Judicial Conduct. Canon 7(A)(3) states that a “judge” should resign judicial office before becoming a candidate for non-judicial office.
The Commission stated that the Michigan Constitution and Canon 7(A)(3) forbade the referee to hold elective and judicial office at the same time. The Commission further stated that the use of the word “should” in Canon 7(A)(3) does not make that canon discretionary. The Commission did not believe the referee deliberately, or even knowingly, violated any ethical requirement by their dual appointments, and therefore dismissed with a caution.
A judge did not rule on a petition to modify a guardianship for nine months after it was submitted to them, in violation of Canon 3(A)(5) and MCR 8.107(A). Canon 3(A)(5) requires a judge to deal promptly with the business of the court. MCR 8.107(A) requires that decisions, when possible, should be rendered no later than 35 days after a matter is submitted to the judge.
The judge also failed to timely disclose the delay to SCAO on quarterly Delay reports as required. When the judge finally disclosed the delay in later Delay reports, the reasons the judge gave for the delay were inconsistent with each other and with the reasons given on another report. In particular, the reasons listed in one report consisted of case events that, according to the court file, did not actually take place. Finally, the Commission investigation revealed that the judge reported another case as untimely in one of the later Delay reports, which should have been, but was not, disclosed in the earlier report.
The judge attributed the deciding and reporting difficulties to a poor case tracking system and a poor system for preparing Delay reports. The Commission accepted that the judge’s actions were not deliberate, but expressed concern about the judge’s understanding of what triggers the obligation to render a decision or to report a case as delayed. The judge’s answers to the Commission’s questions were conflicting and contained inaccurate information about when the matters in question were “submitted” to the judge, suggesting that the judge was unfamiliar with what counts as “submission” for the purpose of triggering the deadline to decide a matter.
The Commission acknowledged the judge’s relative inexperience and applauded the judge’s candid acceptance of responsibility. The Commission also commended the judge for taking the initiative to ask for training from their court’s human resources department for them self and their staff, and for creating a “Taken Under Advisement List” to prevent unwarranted delays in future cases.
The Commission noted that while a judge is obligated to rely heavily on staff, it is ultimately their responsibility to ensure the accuracy of their staff’s work. The Commission strongly recommended that the judge personally pay attention to future Delay reports to ensure that they are accurate and complete, rather than merely rely on staff.
The Commission dismissed with a caution to avoid similar difficulties with timely decisions and required reporting in the future; to have procedures that will ensure that future cases are promptly decided, and to properly report any future cases that are not timely decided. To ensure that the judge accurately understood their obligations and that the judge’s processes would enable compliance with those obligations, the Commission conditioned its dismissal upon the judge’s agreement to be trained by an appropriate person.
A judge challenged defense counsel’s trial experience in the presence of their client. The judge also suggested, in front of the client, that the lawyer was urging the defendant to seek a jury trial, and was doing so for the lawyer’s own benefit.
The Commission found no legitimate basis for the judge to assume, much less allege, that the attorney was acting for their own benefit and not according to their client’s wishes or best interests. The judge claimed that the belief was justified by the judge’s perception that the lawyer filed baseless motions, but the Commission concluded that the judge could not reasonably have thought this. The Commission determined that the judge’s remarks to defense counsel violated Canons 2(B), and 3(A)(3), and 3(A)(14), in that they were not respectful, courteous or fair, and did not promote public confidence in the integrity of the judiciary, as well as Canon 1, in that the judge failed to establish and maintain high standards of conduct so the integrity and independence of the judiciary was preserved.
The evidence also showed that the judge attempted to dissuade the defendant from proceeding with a jury trial by stating they would deny any potential motion for judgment notwithstanding the verdict, and would put the defendant in jail if convicted by a jury. The judge told the defendant that the case “scream(ed) bench trial,” and stated that the defendant would have a lot of costs to pay if they had a jury trial. While the Commission acknowledged the judge’s assertion that they were concerned with the defendant’s best interests, the Commission noted that the transcript and audio of the hearing showed that the judge’s remarks were clear, unequivocal, and not particularly well suited to an intent merely to ensure that the defendant was well informed, as the judge claimed. The Commission determined that when viewed collectively, the judge’s statements showed an intent to, and did, put undue pressure on the defendant to forego their constitutional right to a jury trial.
The Commission further noted that informing the defendant that the judge had predetermined a jail sentence if the defendant was convicted by a jury, and had predetermined that that they would deny any potential motion for judgment notwithstanding the verdict, was anticipating how the judge would resolve issues that had not been brought before them, and about which they had yet to be informed, and was therefore a violation of their duty as a judge. The Commission disagreed with the judge’s contention that their statement regarding the sentence merely reflected “possible” terms. The Commission found that to the contrary, the judge told the defendant they would send the defendant to jail if convicted after a jury trial. The Commission found that the judge violated Canon 3A(1) by failing to be faithful to the law, and also created an appearance of impropriety in violation of Canon 2(A).
The Commission considered the judge’s significant time on the bench with no prior history of impropriety, and dismissed the matter with an admonishment.
A trial was completed and submitted to a judge for decision in February 2017. The judge did not issue their opinion until nearly two years later, in January 2019, in violation of MCR 8.107, which provides that a decision should be rendered no later than 35 days after submission. The delay also ran afoul of Canon 3(A)(5), which states that a judge should dispose promptly of the business of the court.
The Commission acknowledged the many professional and personal circumstances and difficulties that contributed to the delay, and also understood that the judge’s unfamiliarity with the nature of the case made their decision especially difficult. The Commission advised, however, that these difficulties did not excuse such extreme delay, which impacts not only the parties involved but also the administration of justice and the public perception of the judiciary.
The Commission recognized the judge’s distinguished career, and that they had never been so much as cautioned during their long service as a judge despite the difficult circumstances under which they had presided. The Commission agreed with the judge that this delay was an aberration, and commended the judge for their candor in admitting this mistake and accepting full responsibility. The Commission dismissed with a caution to avoid excessive delays in the future.
A judge presided over a civil case involving a defendant who was represented by a law firm that employed the spouse of the judge. The spouse began working for the firm after the case was assigned to the judge. The judge conducted a hearing on the day their spouse began their employment. It was another three months before the judge had off-the-record discussions in chambers with the attorneys concerning the spouse’s employment at the defendant’s attorney’s law firm.
The defense attorney assured the plaintiffs’ attorney that the judge’s spouse would have no involvement in the case. Plaintiffs’ attorney indicated they had discussed the matter with their clients, and they did not ask for recusal of the judge. There was no further discussion of the matter and nothing was put on the record. At a later date, plaintiffs reconsidered and sought the judge’s disqualification due to the spouse’s employment.
The judge provided documents that established that neither the judge nor their spouse had any financial interest in the outcome of the case. The Commission agreed that accordingly, the spouse’s employment did not create a conflict of interest in violation of MCR 2.003, and therefore, did not preclude the judge from presiding over the case on that basis.
The fact that there was no conflict of interest did not resolve all potential bases for the judge to be disqualified, though. MCR 2.003 also requires disqualification if presiding creates an appearance of impropriety. The judge’s answer to the Commission’s questions suggested that the judge believed Adair v State Dept of Educ, 474 Mich 1027 (2006), meant that the appearance of impropriety provision in MCR 2.003(C)(1)(b) was not relevant to their situation. The Commission noted that Adair predated the amendment to MCR 2.003 that added appearance of impropriety to the bases for disqualification, and found that following the amendment, Adair’s holding that the appearance of impropriety is irrelevant if another provision in Rule 2.003 does not require a judge’s disqualification may no longer be good law. The Commission stated that after the amendment, the appearance of impropriety appears to be on equal footing with the other provisions in Rule 2.003 that may require a judge’s disqualification in given circumstances.
The judge also noted that justices of the Supreme Court had determined that their spouse working for a prosecutor, when another member of the prosecutor’s office appeared before them, did not create a conflict of interest. The Commission pointed out that there is a difference between a spouse who works for a publice entity and a spouse who works for a private firm, which, unlike a public agency, presumably has a profit motive.
After analyzing the appearance of impropriety, the Commission determined that the judge did not improperly remain on the case. The Commission did not believe an objective observer, familiar with all the relevant facts, would think the wife’s employment created such an appearance.
The Commission found, however, that whether or not disqualification was required, Canon 3(C) required the judge to alert the parties to their spouse’s employment at the first reasonable opportunity. Canon 3(C) requires a judge to raise the issue of disqualification if there is cause to believe that grounds for disqualification may exist under MCR 2.003, and therefore the judge had a duty to disclose their spouse’s employment if it could create an appearance of impropriety. The fact that a judge’s spouse is working at a party’s law firm might reasonably create in the minds of the opposing party the perception that the judge’s ability to carry out their judicial responsibilities with impartiality is impaired. Absent the disclosure required by Canon 3(C), the opposing party has no way of exploring whether the spouse is working on the case or otherwise receiving direct or indirect financial benefit from it.
The Commission dismissed the matter with caution to the judge to be aware, not only of the requirements of Rule 2.003, but also of the broader disclosure requirement of Canon 3(C). The Commission further cautioned that while there is no one correct way to disclose a potentially problematic relationship, discussions with counsel in chambers, not on the record and never memorialized, can leave a judge vulnerable to a later challenge to the quality of a disclosure or the extent to which the parties are satisfied with it.
In response to a defendant exercising their right to a trial, the judge expressed to the defendant that there would be additional consequences, including jail, if the defendant was convicted and the judge was not satisfied that there was a “good faith basis for the defense” and determined that the defense was frivolous. The judge did not explain what might constitute a “good faith basis for defense” or a “frivolous” defense, leaving open the natural interpretation that a “frivolous” defense was any defense the judge did not like, and further leaving open the possibility that if the defendant simply put the government to its proofs and was convicted, that would be “frivolous,” or not in “good faith.”
The judge asserted that their intent was merely to ensure the defendant was carefully thinking through their decision to forego an attractive plea offer. The Commission expressed skepticism about this explanation, and noted that the judge’s statements to the defendant had not hinted at any concern about any plea that was offered the defendant. The Commission said it did not believe the judge would have chosen the words they did if that was their intent.
The judge relied on People v McFarlin, 389 Mich 557 (1973), and People v Oliver, 242 Mich App 92 (2000), to justify requiring the defendant to demonstrate a “good faith basis for their defense.” The Commission noted that neither that phrase nor a close analogue appears in either case, and neither case was concerned with the quality of a defendant’s trial defense. The Commission added that while there are undoubtedly circumstances when a defendant presents a defense at trial that demonstrates such a cavalier attitude toward their crime that it is a proper aggravating factor to consider at sentencing, the phrase “good faith basis for the defense” does not capture that nuance effectively.
The Commission appreciated the judge’s candid acknowledgment that their statements to the defendant were inappropriate and could potentially chill a defendant’s right to a jury trial. The Commission noted that the investigation uncovered no evidence that the judge had made similar remarks to other defendants and that the trial transcript in this case showed that the judge’s conduct of the trial was exemplary, despite their pretrial remarks warning the defendant about the consequences of going to trial. The Commission also noted the judge’s spotless prior disciplinary history.
After considering all of the above, the Commission found that the judge’s statements to the defendant failed to promote public confidence in the impartiality of the judiciary, in violation of Canon 2(B), and failed to follow basic law with respect to the defendants’ right to a jury trial, in violation of Canon 3(A)(1). The Commission dismissed with an admonition.