In re GRAHAM
Calendar No. 49,562
Supreme Court of Michigan
April 4, 1962
366 Mich. 268
APRIL TERM, 1962.
Thе rules concerning the superintendence of the judiciary were designed as implements of procedure and due process for the constitutional mandate of superintendence (
2. SAME-OPEN COURT-ACTION ON RECORD.
Courts of record usually act in open court or at chambers, on the record, with respect to judicial duties and matters subject to their jurisdiction.
3. SAME-JUDGES-RECORD-FIDUCIARIES-ACTION WITHIN JURISDICTION.
Judges of courts of record do not usually arrange by telephone, with no record made of such doings in the court file, for distant and off-the-record conferences with fiduciaries appointed by them and remaining under their jurisdictional control, nor do they deal in such manner with estate assets which are the subject-matter of appointment and jurisdictional control.
4. SAME-PROBATE JUDGES-LOANS FROM ESTATES.
It is both intolerable and unpardonable for a probate judge to attempt to negotiate a personal loan to him from an estate subject to his lawful control and orders and to use his official position in furtherance thereof.
5. SAME-SUPERINTENDENCE OF JUDICIARY-PRESUMPTION OF INNOCENCE-BREACH OF FIDUCIARY DUTY-PROBATE JUDGE.
A sympathetic consideration of ethically questionable conduct and of leaning toward application of the presumption of
6. EXECUTORS AND ADMINISTRATORS-APPOINTMENT OF SPECIAL ADMINISTRATOR-ASSETS BROUGHT TO COURT.
It is the duty of a probate judge to appoint a properly bonded special administrator of an estate to take charge of assets of the estate of a decedent which have been brought into court (
7. JUDGES-ESTATES OF DECEDENTS-MISAPPLICATION OF FUNDS BY PROBATE JUDGE.
Evidence presented in superintendence proceeding against probate judge held, tо require a finding that he had appropriated, to his own improper use, indeterminate amounts of money belonging to a decedent‘s estate subject to his jurisdiction (
8. COURTS-SUPERINTENDING CONTROL-REMOVAL FROM OFFICE-IMPEACHMENT.
The Supreme Court‘s power of superintending control over other State courts includes no power, or duty, to remove or impeach a judicial officer, a function belonging to other branches of government (
9. SAME-SUPERINTENDENCE OF JUDICIARY-EXERCISE OF POWER.
The duty of superintendence of the judiciary should be sparingly and carеfully administered (
10. SAME-SUPERINTENDENCE OF JUDICIARY-RECOMMENDATION OF REMOVAL FROM OFFICE OF PROBATE JUDGE.
Recommendation, pursuant to rules concerning superintendence of the judiciary, is made to the legislature that a judge of probate be removed from office, where it is found that he had, for a period of time, appropriated to his own improper use, funds from a decedent‘s estate subject to his jurisdiction, and had attempted to borrow funds from a ward‘s estate also subject to his jurisdiction, the Supreme Court‘s power and authority tо enjoin the judge of probate from exercising the powers and duties of his office being held in abeyance pending the result, if any, of legislative action, during a period of 30 days from and after delivery of certified copies of opinion,
REFERENCES FOR POINTS IN HEADNOTES
[1] 14 Am Jur, Courts § 264 et seq.
[2, 3] 14 Am Jur, Courts § 137.
[4] 43 Am Jur, Public Officers § 266.
[6] 21 Am Jur, Executors and Administrators § 804 et seq.
[7, 8, 10] 30A Am Jur, Judges §§ 24, 25.
Original superintendence proceedings by Meredith H. Doyle, Court Administrator, against Henderson Grahаm, judge of probate, Tuscola county, to restrain further exercise of his functions in office and to effect his removal therefrom. Testimony taken January 23, 1962. (Calendar No. 49,562.) Opinion and order filed April 4, 1962, with reference to governor and legislature for removal proceedings.
Benjamin F. Watson, for plaintiff.
Thomas R. McAllister, for defendant.
PER CURIAM. June 5, 1959, this Court adopted its currently effective rules for superintendence of the judiciary of Michigan. Such rules were prepared and submitted to the Chief Justice, with due recommendatiоn of adoption, by the board of commissioners of the integrated Michigan bar. A transcript thereof may be found in 356 Mich xv-xxi. They were designed as implements of procedure and due process for the constitutional mandate of superintendence. See
Following an investigation which had been instituted and concluded by the attorney general, and reference by his office of the results of such investigation to the court administrator, the present proceеding* was authorized by the Chief Justice under Rule No 3. Since Rule No 8 requires in presently indicated circumstances that the hearing court make
Henderson Graham, respondent in the present proceeding, is the duly elected, qualified and acting probate judge of Tuscolа county. He was serving his second 4-year term during the period of judicial and personal action brought into present scrutiny.
Edwina Dering, by recent marriage Edwina Green, became 21 years of age since the hearing of January 23d. By guardianship proceedings instituted in the Tuscola county probate court under date of January 27, 1958, one William Walkiewicz was appointed guardian of Edwina‘s estate. Mr. Walkiewicz submitted his final account as such guardian and was duly discharged after having paid over to the successor guardian the accounted amount remaining in his hands, namely, $3,669.51. Shortly before such discharge Edwina‘s older sister, Sylvia Goszkowski, a resident of Detroit, was appointed successor guardian of Edwina‘s estate by order of the respondent judge dated September 21, 1959. The amount of her bond was set by respondent at the sum of $3,000. Mrs. Goszkowski‘s bond was approved and filed, and letters of guardianship were duly issued to her by order of the respondent.
Under date of October 3, 1960, Mrs. Goszkowski filed with said probate court an inventory of the ward‘s estate. The inventory disclosed then, as the testimonial record does now, that the parents of the 2 sisters had been killed in an automobile accident and that there had been distributed, to Mrs. Goszkowski as guardian of Edwina, the total sum of $16,666.67 representing Edwina‘s distributive share of the recovered proceeds of death actions which had been instituted, in the Livingston circuit, by
In early February of 1961 the respondent judge, at Caro, that being the county seat of Tuscola county, telephoned guardian Goszkowski at Detroit. The purpose of his call was to open negotiations with the guardian for a personal loan, to him, from the ward‘s estate as reported in the probate record, in the sum of “about $20,000.” Mrs. Goszkowski advised respondent that she would discuss the proposal with her sister (the ward, then a student at Michigan State University) and that she would return respondent‘s call. The proposal to Mrs. Goszkowski seemed “unusual.” She called her attorney for advice. Her attorney thereupon called a member of the attorney general‘s staff; whereupon the attorney general‘s department undertook and concluded the investigation to which we have referred. Details of the latter follow:
Mrs. Goszkowski was directed to call respondent, as she had agreed, in the presence of 2 officers of the State Police. The call was made. In the course thereof Mrs. Goszkowski accepted respondent‘s offer to come to her home, in Detroit, to discuss his proposal. It was agreed that he come to her home “the following Wednesday,” which was February 8th. Respondent came to the Goszkowski home as arranged, where the conversation between judge and guardian was secretly recorded by the officers. Mrs. Goszkowski testified that respondent “brought with him several documents about his real estate and insurance policies, and he was going to show thаt this would be a very good investment as he was-he cer-
The following testimony, which is found established by clear preponderance, is significant at this point:
“Q. All right. Now I am still on the Wednesday conference. At any time during this day was the question of your bond as the fiduciary, the guardian, talked about?
“A. Yes.
“Q. What was said about that?
“A. That seeing that the assets were now increased from $3,000 that I would have tо increase my bond, provided I did not make this loan to Judge Graham.
“Q. To him?
“A. Yes.
“Q. Now there is no question about that at all, is there, Mrs. Goszkowski-
“A. No.
“Q. -in your mind?
“A. No.
“Q. Do I gather, then, that if you agreed to make this loan to him your $3,000 bond would continue as adequate in his court?
“A. Yes.”
The conference of February 8th, at the Goszkowski home, was left “with no decision made.” Respond-
The same proposal, to borrow approximately $20,000 from the ward‘s estate, was presented by respondent and discussed for approximately 1 hour. The 2 sisters finally told respondent that their decision was “No“, whereupon respondent told the two that the guardian‘s bond would have to be increased from the then amount of $3,000 if the proposed loan was not made and if made the $3,000 bond would remain without ordered increase of the amount thereof.
It is unnecessary to detail further the evidence of respondent‘s design. It was proven clearly and is
This Court finds that, on and prior to February 11, 1961, the respondent judge sought affirmatively if unsuccessfully to negotiate secretly a personal loan to him from an estate subject to his lawful control and orders, in the sum of approximately $20,000, and to use his official position in furtherance thereof. Such conduct on the part of a judge is both intolerable and unpardonable. Wе shall say more of this later.
The respondent judge was given full opportunity to explain and excuse his conduct. An all day hearing was provided with all eligible members of the Court participating. No further time for presentation of additional proof was requested. Respondent‘s defense, submitted by testimony and with the aid of able counsel, is that he is not legally schooled, that he was not versed or familiar with the canons of judicial ethics, that he was guilty at worst of pоor judgment, that he was activated by honest if ill-advised motives, that adequate security for the proposed loan would have been provided, and that no injunctive or recommendatory order should issue as prayed in the court administrator‘s
In matters of superintendence particularly, our normal instinct is that of sympathetic consideration of ethically questionablе conduct and, where some doubt exists, that of leaning toward application of the presumption of innocence and crass ignorance on the part of one who should, but does not, know better. In such instances the inclination of a constitutionally charged superintendent might well be that of ordering a judgment of censure and reprimand only. But there are other facts, shown here beyond fair dispute, which require forceful action. We simply cannot оverlook a disclosed pattern of secretly attempted and once-successful “borrowing,” by a probate judge, from estates under his jurisdiction. Once such pattern is discovered, the opportunity of continuity thereof must be concluded with firmness and resolution.
It was established testimonially, during the hearing of January 23d, that the respondent actually took over and commingled with his own funds certain cash which at all times belonged of right in the hands of a duly appointed fiduсiary of another estate under his jurisdiction. Study of such testimony has resulted in our calling in, for examination, the Tuscola county probate file entitled “In the matter
A few days after Mr. Prief‘s death a Mr. Montague brought in, to the Tuscola county probate court, certain amounts of cash belonging to the decedent. The first amount was $2,990. It was brought in November 25, 1959, and receipted for as estate funds by the probate register, Mrs. Douglas Putnam (a witness during the hearing of January 23d). The next amount, $661.51, was brought in by Mr. Montague on November 27, 1959, and receipted for by respondent as estate funds. No special administrator was appointed* and it was not until October 31, 1960, that Claude Sirdan, another witness who testified during the hearing of January 23d, was appointed executor of Mr. Prief‘s will upon order of respondent. Mr. Sirdan promptly asked respondent for the money belonging to the estate and, shortly after such request, received $2,990 thereof from respondent. On the first oсcasion thereafter, when Mr. Sirdan asked for the balance, respondent said “I‘ll have a check in the mail shortly.” No check was sent. Still again Mr. Sirdan asked the judge for the balance. The judge replied “You don‘t need the money too bad right now, and I‘ll have it to you shortly.” It was not until the estate was ready for closing and distribution that respondent paid the balance and, being in doubt respecting the amount owing by him to the estate,† did so by his personal “blank check” sent tо the attorney for the
The only explanation offered by Judge Graham, for retention of the remaining six hundred odd dollars received by him from Mr. Montague, was that “It apparently got into a compartment where I kept some of my own personal money at times.” We cannot accept this as an excuse for such judicial misconduct and find аs a fact that the respondent appropriated, to his own improper use, between November 27, 1959, and the distribution of the Prief estate on May 16, 1961, indeterminate amounts of money belonging to the estate.
The judgment of this Court is sufficiently indicated by findings of fact and law aforesaid. Our constitutional obligation is clear. The “unlimited” extent of exigent duty arising under the constitutional mandate was unanimously considered and plainly defined in In re Huff, 352 Mich 402. It includes no power of or duty to removе or impeach a judicial officer, a function belonging to other branches of government under
In modern times the present proceeding is the second occasion only when disciplinary action under the superintendence section has become imperative. This speaks volumes to the generаl credit of Michigan‘s judiciary. It shows, too, that the duty of disciplinary superintendence is, as it should be, sparingly and carefully administered. We regret, then, that action of such nature has to be taken now against a judge of a subordinate court. Regret, however, relieves us no whit from duty. Here it is shown abundantly, by proof we have seen uttered, heard uttered, and then have examined with requisite
Judgment and Order
It is the judgment of this Court that there is reasonable cause, within meaning and purpose of section 6 of
It is adjudged accordingly that this Court does so recommend.
Upon due consideration of the foregoing it is
Ordered that certified copies of the foregoing opinion, and of this appended judgment and order, be forthwith transmitted by the clerk to the governor, and to the president of the senate and the speaker of the house of representatives, and
Ordered further, that the records and files of this Court in the matter of the proceeding entitled above, including the transcript of all testimony taken during the hearing of January 23d and the State police tape recordings marked exhibits 1 and 2, and expressly including the 2 Tuscola county probate files that are now in custody of the clerk, be made available under supervision of the Chief Justice to such committee or committees of the legislature as may have need for same.
It is further ordered that the question whether this Court shall employ its power and authority to enjoin said judge of probate, from exercising the powers and duties of said judicial office, be held in
CARR, C. J., and DETHMERS, KELLY, BLACK, KAVANAGH, and OTIS M. SMITH, JJ., concurred.
SOURIS, J. (concurring). I concur in my Brothers” finding of facts, the conclusions reached therefrom, and the recommendation to the legislature and to the gоvernor that respondent be removed from office as provided by
We have found that respondent‘s misconduct, relatеd to the performance of his judicial duties, was shameful, unpardonable and intolerable and for such misconduct we have recommended his removal from office. How, then, can we justify his interim exercise of judicial authority, authority which rests alone upon the public‘s continuing confidence in the moral integrity of its judgments? I cannot. Nor can I justify exposing the citizens of this State, not alone of Tuscola county, to the possibility of continuing depredations by this resрondent until the legislature and the governor are able to act.
ADAMS, J., did not sit.
[On May 17, 1962, an order was entered, reciting that the legislature had not adopted a resolution as recommended; enjoining respondent from exercising powers and duties of judge of probate, or in any way, directly or indirectly, interfering with or impeding the orderly operation of said office, or in any way attempting to direct