Recent Commission Action
and Notices

CASE SUMMARIES


Public Proceedings During 2006
 (Click on case name for links to Michigan Supreme Court decisions where available)
 

Formal Complaints

FORMAL COMPLAINT NO. 77
Hon. Michael J. Haley
86th District Court

In re Haley, 476 Mich 180 (2006)

In a complaint filed November 18, 2004, the Judicial Tenure Commission accused 86th District Court Judge Michael Haley of accepting two University of Michigan Ann Arbor football tickets from Michael Benedict on October 14, 2003, while on the bench.  Mr. Benedict was the attorney for the defendant in the case of People v Teresa Elizabeth Porter, Case No. 03-1259-SM-3, over which Judge Haley was presiding at the time.  Mr. Benedict offered the tickets to the judge before the proceeding concluded, and stated there was no need for reimbursement.  Judge Haley accepted the gift, and later gave the tickets to a court employee.  At no time did Judge Haley refuse the tickets, or reprove Mr. Benedict.  The case was reported in the media and generated much negative publicity.

The Supreme Court appointed Hon. Casper O. Grathwohl as Master on January 5, 2005.  The public hearing took place from April 6 – 8, 2005. On May 9, 2005, the master filed a six-page report containing his findings of fact and conclusions of law.  The master found Respondent’s acceptance of the tickets was “inappropriate” and displayed “poor judgment” but failed to conclude the judge’s conduct constituted impropriety or the appearance of impropriety.   The examiner filed objections to the report.

On July 11, 2005, the Commission held oral argument on objections to the master’s report. On September 12, 2005, the Commission issued its Decision and Recommendation for Order of Discipline, finding that Respondent’s taking of the football tickets constituted judicial misconduct, and his claim that he was merely accepting a “social hospitality” was not a defense to violations of Canons 2A, 2B and 5C(4)(c).  The Commission recommended Respondent be publicly censured.  Two of the Commission members dissented as to sanction and recommended Respondent be suspended for 30 days without pay.

The Supreme Court heard oral argument in the matter on December 14, 2005.  On July 31, 2006, the Michigan Supreme Court issued its opinion and ordered that Judge Haley be publicly censured.  In re Haley, 476 Mich 180 (2006)  The justices were unanimous in their conclusion that the Commission’s recommendation of public censure was appropriate, but were divided as to the nature of the misconduct.  Justice Young’s opinion, joined by Chief Justice Taylor, Justices Corrigan and Markman, held that Judge Haley violated Canon 5(C) of the Code of Judicial Conduct by accepting the tickets, as they did not fall within any of the listed exceptions for gifts, and the acceptance of them was not an instance of “ordinary social hospitality.” The majority also concluded the “appearance of impropriety” standard of Canon 2 does not govern an act of judicial conduct when a specific canon or court rule controls. 

Justices Cavanagh and Kelly concurred with the majority’s decision to adopt the Commission’s recommendation of public censure, but disagreed with its interpretation of the applicability of the “appearance of impropriety” standard of Canon 2.  Justice Cavanagh agreed with Justice Kelly’s concurring opinion that the tickets constituted “ordinary social hospitality,” but that the judge’s acceptance of them in open court gave rise to an appearance of impropriety, and that the circumstances surrounding the gift-giving should be analyzed under the appearance of impropriety standard of Canon 2.

Justice Weaver concurred, agreeing with the majority’s decision to adopt the Commission’s recommendation of a public censure, but stated the majority erred in rejecting consideration of whether Judge Haley also violated Canon 2(A) of the Code of Judicial Conduct by creating an appearance of impropriety and in refusing to consider the Commission’s findings of seven additional instances of judicial misconduct, noting that each violation of a canon is its own breach of judicial duty and needs to be determined and recognized as a reason for the imposed discipline. 

 

FORMAL COMPLAINT NO. 78
Hon. Dana Fortinberry
 52-2nd District Court

In re Fortinberry, 474 Mich 1203 (2006)

The Commission initiated formal proceedings against Judge Fortinberry on May 10, 2005.  It alleged that she made misrepresentations in a July 2004 letter regarding a 1989 death that was officially ruled a suicide.  The letter implied a candidate for the 52nd District Court, whom Judge Fortinberry did not support, and the candidate’s husband, were involved in a cover-up of possible wrongdoing concerning the 1989 death of the husband’s then wife.  Judge Fortinberry is alleged to have made similar remarks regarding the candidate and her husband at a police fraternal lodge meeting in March 2004.  Respondent filed an answer admitting that she sent the letter but denying that she made the statements at the meeting. The Michigan Supreme Court appointed Hon. Robert A. Benson, retired from the Kent County Circuit Court, as master for the proceedings.

On November 28, 2005, the Commission filed a recommendation with the Michigan Supreme Court, with Respondent’s consent, calling for a public censure.  In the settlement agreement, Respondent admitted she made a number of statements in the July 2004 letter that were factually untrue, and which she did not bother to attempt to verify before repeating.  Based on those admissions, the Commission concluded that Judge Fortinberry had engaged in judicial misconduct warranting a public censure.  On January 12, 2006, the Michigan Supreme Court adopted the Commission's recommendation and issued a public censure of Judge Fortinberry.  In re Fortinberry, 474 Mich 1203 (2006)
 


FORMAL COMPLAINT NO. 79
Hon. David Martin Bradfield
36th District Court

Supreme Court order located at:  716 NW2d 586 (Mich 2006)

On June 7, 2005, the Judicial Tenure Commission initiated formal proceedings against Judge Bradfield based on two separate incidents.  The most recent occurred in April 2005, where Judge Bradfield allegedly confronted City of Detroit Deputy Mayor Anthony Adams regarding the use of judicial parking at the judges’ entrance to the 36th District Court.  Deputy Mayor Adams, the husband of 36th District Court Judge Deborah Ross Adams, was meeting his wife for lunch and is authorized to park in front of the building and enter the courthouse using the judges’ door.  Judge Bradfield allegedly assaulted Deputy Mayor Adams, shouted at him, repeatedly used profanity, and continued his tirade in front of other court personnel, City of Detroit police officers, Judge Ross Adams, and Chief Judge Marylin Atkins.

The earlier incident, also involving a display of improper demeanor, occurred in October 2002.  A Gem Theater parking structure attendant advised Respondent that an agreement for judges of the 36th District Court to use reserved spaces on the first floor was not in effect until several days after he attempted to use the facility.  The complaint alleged that Respondent shouted and used profanity during that incident.  Instead of accepting an offer to accommodate the judge by permitting him to park in garage staff parking for the day, Judge Bradfield threw the document reflecting the agreement on the ground and angrily sped his car out of the garage. 

The Supreme Court denied a petition for interim suspension, and appointed Honorable J. Richard Ernst, retired from the 23rd Circuit Court, as master in the formal proceedings.  Although Respondent admitted that he engaged in an altercation with Deputy Mayor Adams, used profanity, shouted, and struck the deputy mayor with his finger, he denied that he committed misconduct.  Respondent also denied that he engaged in a display of temper at the Gem Theater parking structure.

A formal hearing took place on August 24, 2005, at the Frank Murphy Hall of Justice in Detroit.  The master released his findings of fact and conclusions of law on September 23, 2005, and determined that Respondent had committed misconduct in relation to both the 2002 and 2005 incidents.  Respondent filed objections to the report, to which the Examiner replied.  After a public hearing held on November 21, 2005, the Commission filed a Decision and Recommendation in the Michigan Supreme Court on December 28, 2005.  The Commission also concluded that Respondent committed misconduct.  It recommended that Respondent be suspended for one year without pay, and that he complete intensive psychological treatment to control his anger. 

On January 19, 2006, Respondent submitted a petition to the Supreme Court to reject the Commission’s Decision and Recommendation.  The Examiner filed a brief in support of the Commission’s recommendation on February 13.  After oral argument was held on April 4, 2006, the Supreme Court remanded the case to the Commission on April 20, while suspending Respondent without pay on its own motion.  The Supreme Court directed the Commission to determine Respondent’s fitness to serve as a judge via an independent medical examination, using a psychiatrist of the Commission’s choosing.  The review was to take into account all behavior which was the subject of the present formal complaint, as well as Respondent’s behavior which led to two prior Supreme Court sanctions of Respondent for misconduct based in large part on his improper demeanor.  The Supreme Court established a schedule to complete the examination and for the Commission to make a further recommendation, with the opportunity for Respondent to address the issue.

Respondent thereafter resigned his judicial office, effective May 31, 2006.  The Commission, noting that the integrity of the judiciary was protected from further damage with the expectation that Respondent would never again serve in a judicial capacity, dismissed the formal proceeding without prejudice.  In light of those developments, the Supreme Court dismissed the case on June 30, 2006.  (The order, which was not published in Michigan Reports, can be viewed at: 716 NW2d 586 (Mich 2006), or may be accessed by clicking here.)

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Non-Public Dispositions In 2006

The Commission sent letters of explanation, caution, or admonishment to a number of judges for actions such as the conduct described below. Although these letters are confidential and part of the non-public domain, the Commission summarizes many of them here, without reference to the judge or court, for the edification of the public and the judiciary.

The Commission reprimanded judges for the following types of behavior:
 

Campaign and Political Activity

·          A speech by a judge at a political party fundraiser created an appearance the judge was soliciting funds on behalf of the organization.  Although the Code of Judicial Conduct permits a speech by a judge on his or her own behalf at a political gathering, some of the judge’s remarks at the fundraiser ridiculed the President and constituted a public “negative endorsement” of a non-judicial candidate.  The comments were made to further the interests of the political party.

•       A keynote address by a judge at a political party fundraiser created an appearance that the judge was soliciting funds on behalf of the organization, and comments critical of a non-judicial political figure were inappropriate.  The Commission acknowledged that the judge represented he was unaware the event was a fundraiser or that he was identified as the keynote speaker before he appeared, and he would insure future speaking engagements did not involve political party fundraisers.   The Commission also advised the judge that his remarks which were critical of “King George” during the speech constituted a thinly veiled attack on the President.  The comments were impermissible as they did not relate to the judge’s campaign for office, were not to his electorate, and were critical of a non-judicial political figure.  They therefore were made to further the interests of a political party.


Contempt of Court

·           Finding an attorney in contempt of court and imposing a $1,000 fine to be paid to a local public service agency.  Such conduct constituted improper use of judicial office to solicit monies for charities and also violated MCL 600.1715, which limits the amount of a fine for contempt to $250.  Within a matter of days, the judge entered an amended order of contempt reducing the fine to $250 payable to the court clerk’s office.  Because of the judge’s prompt action in reducing the amount of the fine to the statutory limits and making it payable to the court clerk’s office, the Commission determined that no formal action was warranted. 
 

Delay

·            Failing to act on pending support and other issues.  The judge did not act on an initial Friend of the Court recommendation for child support (allowing temporary support to continue).  While that issue was pending, the non-custodial parent sought a modification of support.  The judge took 26 months to resolve the matter, and failed to follow up on a request to the Friend of the Court for a second support recommendation.  In an independent proceeding, the judge failed to hold an evidentiary hearing regarding spousal support for over ten months before disqualifying himself.  He also repeatedly adjourned a hearing on a motion, as he believed it was frivolous, and adjourned a conference with the parties (which he initiated as he felt it may resolve issues) several times over a number of months.

·            Failing to conduct a trial for over three years in a divorce case where the only disputed issues were custody, visitation, and support as to a minor child.  Supreme Court Administrative Guideline 2003-7 requires divorces with minor children to be resolved within 364 days of filing.  Although reasons for some of the adjournments in the case were arguably valid, their length (between two and six months) was inexplicable.  The delay was aggravated by the fact that for much of the period, the child was transported between Pennsylvania and Michigan each week (a six-hour car ride), based on the temporary agreement for custody on an alternating weekly basis.

·            Not completing a best-interests evidentiary hearing within a reasonable period after a remand.  The Court of Appeals remanded a case to the trial court as the judge changed custody without conducting a best-interests hearing to determine whether it was warranted.  The hearing was not completed until six months after the remand.  The Commission advised the judge that the length of time an issue has been pending, including any appeals, should be considered when prioritizing the scheduling of hearings. 

·        Taking nearly four years to resolve a divorce action involving minor children.  The conduct was inconsistent with MCR 2.501(B) which gives precedence to matters involving custody of minor children.  The conduct violated Canon 3A(5) of the Code of Judicial Conduct, which requires a judge to dispose promptly of the court’s business.  The Commission further noted the delay also substantially exceeded the standards of Administrative Order 2003-7, with respect to case flow management, providing all divorce cases with minor children should be adjudicated within 364 days of filing.  The Commission determined that a significant part of the delay was attributable to the judge’s practice of repeatedly scheduling domestic relations matters for trials or hearings which were not held and requiring that counsel and parties be present to negotiate on those occasions.  The Commission stated that overzealousness on the part of the court in settlement negotiations gives rise to an appearance of coercion.  The Commission suggested that the judge re-evaluate his scheduling practices.  Further, the Commission expressed its disapproval of the judge bifurcating divorce cases by granting a divorce and leaving issues of custody, parenting time and child support for subsequent determination.  Finally, the Commission called the judge’s attention to the fact that the judgment of divorce failed to comply with MCL 552.101 since a divorce judgment must contain provisions regarding insurance, dower, pension, support and parenting time. 

·          Taking between five months and one year to decide matters filed by prison inmates was found by the Commission to violate Canon 3A(5) of the Code of Judicial Conduct, which requires a judge to dispose promptly of the business of the court.  The Commission further expressed concern about the judge’s failure to respond to telephone calls and written communications from the State Court Administrative Office.  In view of the judge’s professing to have no knowledge of such communications, the Commission noted that this suggested a serious failure to communicate by members of the judge’s personal staff.  Canon 3B(2) of the Code of Judicial Conduct recognizes that judges have the responsibility to oversee employees’  performance of their duties.  The Commission stated that duties may be delegated but the ultimate responsibility to ensure proper conduct of staff members rested with the judge.  Additionally, the Commission expressed its greatest concern over the judge’s lack of candor in responding to the Commission.  The judge’s response to the Commission stated he worked hard to maintain an “efficient docket” and had no cases exceeding the applicable time standard.  Unmentioned was the fact of 14 motions for relief from judgment ranging in age from 88 to 1,027 days.  These matters had only been recently disposed of.  The judge was admonished to be more forthright in future dealings with the Commission and to decide MCR 6.500 matters in a timelier manner.  Finally, the Commission directed the judge to submit a written report describing the system his staff had implemented to handle prisoner mail timely and to outline steps taken or which would be taken to ensure prompt response to communications from the State Court Administrative Office. 

·          Excessive delay of almost 10 months without ruling on a prisoner’s habeas corpus and other motions in connection with a complaint against a prison warden. Upon receiving a request for comments, the judge then disqualified himself.  His antagonistic response to the Commission suggested there was no basis for the disqualification other than pique at having been contacted by the Commission. 

  ·        Excessive delay of over two years in ruling following a partial reversal and remand by the Court of Appeals in post-divorce litigation.  The Court of Appeals reversed in part and remanded for further proceeding on the basis that the judge’s minimal award of rehabilitative spousal support for five years was unreasonable and inequitable given the facts as was the minimal award of minimal attorney fees an abuse of discretion.  After hearing nothing from Respondent, Grievant’s attorney filed a petition for post-appellate relief a year later.  The judge was reproached to handle matters in a reasonably timely fashion, that such delays create additional hardships for parties already unduly burdened by the slow-moving nature of the legal system, and that had he addressed the issues promptly, he would not have had to contend with some of the complicating changes in circumstances that later occurred. 

·          Excessive delay and adjournments in bringing child protection cases to trial, failure to maintain regular court hours, and failure to manage docket in a timely fashion.  The judge was reproached for such conduct as prejudicial to the administration of justice and required to attend a judicial time/case management course at the judge’s expense.
 

Improper Use of Prestige of Office

·          Two defendants whom a judge was acquainted with faced felony charges in another state.  The judge phoned the court, spoke to the trial judge’s secretary and identified himself as a judge and discussed circumstances of one of the defendant’s case.  The Commission rejected the claim that the judge was merely “seeking information.”  The judge also provided a letter from himself on behalf of one defendant to append to a motion for bond.  The Commission noted that the letter put the judge in a position of advocating admission of the defendant to bond and also vouching for the efficacy of the drug treatment facility to which the defendant sought admission.  Canon 2A of the Code of Judicial Conduct requires a judge to avoid all impropriety and appearance of impropriety.  Canon 2C of the Code of Judicial Conduct prohibits a judge from allowing family, social, or other relationships to influence judicial conduct or judgment.  The Commission stated that the judge’s use of official letterhead for a personal matter necessarily added to the appearance that the social relationship influenced his conduct. 

·          Repeated appointments of a particular attorney as a receiver in domestic relations matters and rulings expanding the receiver’s power to include functions already performed by the Friend of the Court as well as rulings making payment of the receiver’s fees an equal priority with payment of child support, and attempting to prevent discharge of the receiver’s fees in pending bankruptcy proceedings.  The Commission determined that the judge’s actions could be interpreted as calculated to use the prestige of his office to advance the personal business interests of the receiver, contrary to Canon 2C of the Code of Judicial Conduct, or arbitrary rulings constituting a failure to perform the duties of the judge’s office impartially, contrary to Canon 3 of the Code of Judicial Conduct.  The Commission also reproached the judge for ignoring controlling Michigan Supreme Court authority in civil non-support proceedings requiring that where persons might be incarcerated, appropriate inquiries should be made to determine whether that person was indigent and, if so, counsel must be appointed unless the right to an attorney was waived.  Finally, the Commission expressed its disagreement with the judge’s claim that the Code of Judicial Conduct made it inappropriate for the judge to answer the Commission’s inquiries.  The Commission stressed that MCR 9.208(B) required a judge to cooperate with the Commission in an inquiry. 
 

Treatment of Others When Acting In Judicial Capacity

·          Denying a party the opportunity to explain how compliance with the court’s order to pay expenses of a daughter in foster care would constitute a possible hardship.  The Commission informed the judge that this constituted a failure to review the facts and denied the party basic due process.  The judge was further advised that his conduct also violated Canon 3A(3) of the Code of Judicial Conduct in that he had not been patient, dignified nor courteous in the performance of his judicial duties.  The Commission further expressed its disapproval of the misleading nature of the judge’s response, which mischaracterized the nature of a $250 payment the judge had ordered the party to make.  The Commission noted that MCR 9.208(B) requires that judges cooperate with the Commission in an investigation.  The Commission expressed the view that it expected responses by judges to be both truthful and candid. 

·          Making remarks that a divorced parent should engage in illegal or improper conduct by forcing his way into his ex-wife’s home, tying up his son and taking his son for parenting time.  Although the Commission found no reason to believe the judge or the father took the judge’s statements literally, the comments were inherently improper. 
 

Demeanor

·          Not treating a case and a complainant with the respect warranted under the circumstances.  During a preliminary examination in a criminal proceeding concerning an alleged kidnapping and rape, the judge determined there was sufficient evidence to bind over a defendant for a trial.  Despite that determination, the judge commented that the complainant was “lacking in credibility” and was experiencing “buyer’s remorse.”  The judge also made comments calling into question how seriously the judge took the matter, when the judge told the defendant not to send flowers or “smoke signals” to the complainant.

·          Making disparaging, insulting, and exaggerated comments on the record about a defendant in a civil suit, unrelated to the proceeding, which appeared to impute to the defendant, who was not present, criminal or questionable behavior.  The judge digressed  into stories that “made me [the judge] laugh about him” in which he described the defendant as  a “bit of a character,” who allegedly let teenagers into his club and served them cheap drinks, causing fatal accidents, and that he “hid all his money in Lebanon or some place.”  The judge admitted to the Commission he was embarrassed by his comments, which he acknowledged “went way beyond reasonable limits” and that he intended to personally apologize to the defendant.  The Commission dismissed the matter with a reprimand contingent upon receipt of proof of the judge’s written apology. 
 

Ex parte Communications

·          Discussion with one attorney regarding date marital home should be vacated as to divorce proceeding.  After the conclusion of a hearing in divorce proceedings where an attorney for one party had left the courtroom, the judge approached the remaining attorney and discussed possible dates that would be acceptable to his client as to when the opposing party should vacate the marital home.  The issue, which was a subject of dispute between the parties, was clearly not procedural.  The judge acknowledged that the communication was improper, and asserted it will not occur in the future.
 

Failure to Cooperate

·          Hostile, sarcastic responses to request for comments in preliminary investigation. Judge was reminded  a judge is required to cooperate with a reasonable request made by the Commission in its investigation, pursuant to MCR 9.208(B) and that failure to do so constitutes judicial misconduct. MCR 9.205(B)(1)(f). 
 

Misuse of Judicial Authority

·          Improper consideration of contempt proceedings and dismissal of a criminal case based on a prosecutor’s conduct.  When an assistant prosecutor covering for a colleague could not answer a judge’s questions as to a proposed plea agreement, the judge dismissed the criminal charges without prejudice and threatened to hold the original prosecutor in criminal contempt.  The Commission determined that the judge acted improperly as to both decisions. 

Failure to Follow the Law

·          Failing to permit a custodial parent in a divorce proceeding to relocate within 100 miles without court approval, as permitted by statute.  The Court of Appeals remanded a case to the trial court to consider whether a relocation sought by the custodial parent was within 100 miles.  The non-custodial parent acknowledged that the move was within that distance.  The judge demanded a review of the children’s school before allowing the move, which took place over a seven-month period after the remand.  The judge did not issue an order permitting the move until a second appeal to the Court of Appeals, which issued an order in lieu of granting leave to appeal directing that all restrictions against relocating the children be lifted.  The Commission advised the judge that it was extremely concerned about his conduct in relation to the matter, and that he should have acted immediately to permit the move after the first remand.

·          Imposing restrictions on schooling which violated statute by prohibiting custodial parent to relocate within 100 miles without court approval.  Although the judge allowed the custodial parent to move within 100 miles, she imposed restrictions on schooling for the child which made it impossible for the parent to relocate with her daughter.  Those restrictions were that the child had to attend a school that was 30 miles away from the new home, or remain at her present school and live with the non-custodial parent during the academic year.  In addition, the judge imposed them before an evidentiary hearing was held regarding the best interests of the daughter.  The Court of Appeals subsequently vacated the order.  The Commission determined comments by the judge showed an intent to retaliate against the parent for acting in a manner allowed under the law. 
 

 Irresponsible or Improper Conduct

·          Undignified, unprofessional conduct involving a call-in radio show, identifying self as a judge, and making humorous remarks that were disparaging of parties, reflecting negatively on the judiciary, in violation of Canons 2A and B of the Code of Judicial Conduct.

·          Conducting an on-line survey on a judicial website, which created the appearance of abdicating the judge’s responsibility to make judicial decisions on their merits, and suggested judge’s actions were not necessarily based on the law but rather on “constituent” input, and that judge was able to be swayed by public clamor, possible partisan interests, or criticism. The judge was reminded that Canon 2B provides, in part, that “At all times, the conduct and manner of a judge should promote public confidence in the integrity and impartiality of the judiciary” and that Canon 3A(1) notes a judge “should be unswayed by partisan interests, public clamor, or fear of criticism.”

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