In re MORROW
No. 161839
Michigan Supreme Court
January 13, 2022
Argued October 6, 2021 (Calendar No. 4).
Syllabus
The Judicial Tenure Commission (JTC) filed a formal three-count complaint against Third Circuit Court Judge Bruce U. Morrow, arising from comments he made to two female prosecutors during a murder trial. The Michigan
In a per curiam opinion joined by Chief Justice MCCORMACK and Justices VIVIANO, BERNSTEIN, CLEMENT, CAVANAGH, and WELCH, the Supreme Court held:
The JTC correctly found that respondent committed misconduct in office and that public censure and suspension were appropriate. However, a 6-month rather than the JTC‘s recommended 12-month suspension was proportionate.
1. The allegations in the formal complaint, which respondent generally did not dispute, were established by a preponderance of the evidence, and the JTC‘s conclusions of law were correct. By using unnecessarily crass and sexual language, respondent did not “promote public confidence in the integrity and impartiality of the judiciary,” Canon 2(B), nor was he “patient, dignified, and courteous” to the attorneys, Canon 3(A)(3), nor did he treat them “fairly, with courtesy and respect” without regard to their gender, Canon 3(A)(14). As to Count III, by guessing the attorneys’ heights and weights unbidden while eyeing them, not only did respondent fail to be “patient, dignified and courteous” and to “treat every person fairly, with courtesy and respect” in violation of Canons 3(A)(3) and 3(A)(14), but he also violated Canon 2(B), which also requires that “[a] judge treat every person fairly, with courtesy and respect” without regard to their gender. Respondent committed misconduct in office by violating
2. The judicial disciplinary system did not violate respondent‘s rights under the Due Process Clause by the JTC‘s serving both a prosecutorial and an adjudicative role. Respondent argued to the contrary by primarily relying on Williams v Pennsylvania, 579 US 1 (2016), in which a justice on the Pennsylvania Supreme Court participated in a postconviction proceeding involving a case in which he had previously, in his supervisory role as district attorney, approved the decision to seek the death penalty. The Williams Court held that the justice‘s failure to recuse himself from the case violated the Due Process Clause. Respondent contends that because Michigan caselaw on this subject relies primarily on Withrow v Larkin, 421 US 35 (1975), which preceded Williams, it is no longer good law. However, Williams did not overrule Withrow, and Withrow supports the conclusion that, generally, an administrative body sharing investigative and adjudicatory roles is not a due-process violation. This was the case for the JTC, particularly given that the Michigan Supreme Court instituted some degree of separation between the JTC‘s investigatory and prosecutorial functions versus its adjudicatory functions by requiring the appointment of a master. While Withrow observed that some special facts and circumstances could render the risk of unfairness in such a system intolerably high, no such facts or circumstances were apparent in this case. Furthermore, Withrow was the more applicable precedent because Williams involved a postconviction proceeding in a criminal case, whereas Withrow involved a professional administrative scheme such as the one at issue in this case. Even if the differences between the JTC scheme and the criminal case in Williams were of no import, there would still have been no due-process violation in this matter. While Williams held that there was an impermissible risk of actual bias when a judge earlier had significant, personal involvement as a prosecutor in a critical decision regarding the defendant‘s case, respondent did not raise a similar contention regarding the personal involvement of any particular member of the JTC in his case; he only generally asserted that the JTC could not play a hybrid role in the judicial disciplinary process. Though the JTC does play an adjudicatory role, that role is minimized, given that it is the Michigan Supreme Court that provides a final adjudication and sanctions judges.
3. The Michigan Supreme Court gives considerable deference to the JTC‘s recommendations regarding sanctions; however, that deference is premised on the JTC‘s adequately articulating the bases for its findings and demonstrating that there is a reasonable relationship between such findings and the recommended discipline. To ensure that equivalent cases are treated in an equivalent manner and unequivalent cases are treated in a proportionate manner, the Court considers the seven Brown factors: (1) misconduct that is part of a pattern or practice is more serious than an isolated instance of misconduct; (2) misconduct on the bench is usually more serious than the same misconduct off the bench; (3) misconduct that is prejudicial to the actual administration of justice is more serious than misconduct that is prejudicial only to the appearance of propriety; (4) misconduct that does not implicate the actual administration of justice, or its appearance of impropriety, is less serious than misconduct that does; (5) misconduct that occurs spontaneously is less serious than misconduct that is premeditated or deliberated; (6) misconduct that undermines the ability of the justice system to discover the truth of what occurred in a legal controversy, or to reach the most just result in such a case, is more serious than misconduct that merely delays such discovery; and (7) misconduct that involves the unequal application of justice on the basis of such considerations as race, color, ethnic background, gender, or religion are more serious than breaches of justice that do not disparage the integrity of the system on the basis of a class of citizenship. Because respondent‘s comments did not implicate the unequal application of justice to the defendant in the case being tried, the seventh factor did not support a more severe sanction, but otherwise, the JTC correctly assessed the other Brown factors and properly determined that additional factors supported a more severe sanction. Rather than the JTC‘s recommendation of a 12-month suspension, a 6-month suspension was appropriate given the severity of respondent‘s conduct relative to that in other judicial discipline cases such as In re Iddings, 500 Mich 1026 (2017).
Justice VIVIANO, concurring, agreed in full with the majority opinion but would have held that the master violated
Justice BERNSTEIN, concurring, wrote separately only to indicate his continuing concerns relating to equity and accessibility regarding the use of videoconferencing in these situations. He noted that the circumstances of this case were unique, having taken place during a global pandemic before any vaccinations had been developed and made widely available to the general public. He expressed hope that in the future, given the efficacy and prevalence of vaccinations against COVID-19, an individual‘s preference for in-person proceedings would be honored to the extent that such proceedings could take place safely.
Justice ZAHRA, concurring in part and dissenting in part, agreed that respondent committed judicial misconduct and that his challenges to the proceedings were without merit. However, he strongly disagreed that a lesser six-month suspension was appropriate given respondent‘s history of judicial misconduct, his lack of remorse, and the absence of any assurance that respondent would conform to the rules of judicial conduct. To avoid the possibility that respondent would make a mockery of the Supreme Court and its judicial disciplinary proceedings in his remaining time in office, Justice ZAHRA would have imposed a sanction that would permanently put respondent‘s judicial career to an end rather than allow him an additional six months of compensation and prestige of office.
JTC findings affirmed; six-month suspension without pay imposed.
In re BRUCE U. MORROW, Judge 3rd Circuit Court.
No. 161839
STATE OF MICHIGAN SUPREME COURT
FILED January 13, 2022
OPINION
BEFORE THE ENTIRE BENCH
PER CURIAM.
This case comes to the Court on the recommendation of the Judicial Tenure Commission (JTC) that respondent, Judge Bruce U. Morrow, be suspended for 12 months without pay. Respondent has filed a petition challenging the form of the proceedings and requesting that this Court reject or modify the JTC‘s recommendation. We are unpersuaded by respondent‘s challenges to the proceedings, and we agree with the JTC‘s conclusion that respondent has committed judicial misconduct. However, we hold that a lesser suspension is appropriate and impose a six-month suspension without pay as well as a public censure.
I. FACTS
The JTC filed a formal complaint against respondent in August 2020. That complaint contained three counts of misconduct, all relating to respondent‘s comments to two women prosecutors during a murder trial the year before. Counts I and II alleged that respondent had used unnecessarily crass and sexual language while discussing the trial and providing feedback to the prosecutors. Count III alleged that he had a discussion with the prosecutors wherein he guessed their heights and weights, unbidden, while eyeing them.1
On September 17, 2020, the Court appointed retired Judge Betty R. Widgeon as master. She issued a scheduling order providing for a virtual hearing.2 The master found that in Counts I and II respondent had violated Canons 2(B), 3(A)(3), and 3(A)(14) of the Code of Judicial Conduct; in Count III, the master found that respondent had violated Canons 3(A)(3) and 3(A)(14). Canon 2(B) provides, in relevant part:
A judge should respect and observe the law. At all times, the conduct and manner of a judge should promote public confidence in the integrity and impartiality of the judiciary. Without regard to a person‘s . . . gender, . . . a judge should treat every person fairly, with courtesy and respect.
Canon 3(A)(3) requires that a judge “be patient, dignified, and courteous to . . . lawyers . . . .” And Canon 3(A)(14) states, in relevant part: “Without regard to a person‘s . . . gender, . . . a judge should treat every person fairly, with courtesy and respect.”
The JTC issued its decision and recommendation for discipline on June 14, 2021. It largely agreed with the master‘s findings of fact and conclusions of law, but found that respondent had also violated Canon 2(B) by his conduct in Count III. The JTC found that respondent had committed misconduct in office by violating
“treatment of a person unfairly or discourteously because of the person‘s . . . gender“). After determining that the majority of the factors set forth in In re Brown, 461 Mich 1291, 1292-1293; 625 NW2d 744 (2000), weighed in favor of a more serious sanction, the JTC unanimously recommended that respondent be sanctioned with a public censure and a 12-month suspension without pay.
II. ANALYSIS
A. STANDARD OF REVIEW
Though the JTC makes recommendations in judicial tenure cases, this Court alone ultimately has the authority to sanction judicial officers.
B. FACTUAL FINDINGS AND CONCLUSIONS OF LAW
We agree with the master and the JTC that the allegations in the formal complaint have been established by a preponderance of the evidence. Indeed, respondent generally does not dispute the substance of the allegations. We also agree with the JTC‘s conclusions of law. By his unnecessarily crass and sexual language, respondent did not “promote public confidence in the integrity and impartiality of the judiciary,” Canon 2(B), nor was he “patient, dignified, and courteous” to the attorneys, Canon 3(A)(3), nor did he treat them “fairly, with courtesy and respect” without regard to their gender, Canon 3(A)(14). As to Count III, we agree with the JTC that by guessing the attorneys’ heights and weights unbidden while eyeing them, not only did respondent fail to be “patient, dignified and
courteous” and to “treat every person fairly, with courtesy and respect” in violation of Canons 3(A)(3) and 3(A)(14), but he also violated Canon 2(B), which also requires that “[a] judge treat every person fairly, with courtesy and respect” “[w]ithout regard to a person‘s . . . gender . . . .” Respondent committed misconduct in office by violating
Respondent contends that he did not commit misconduct because in In re Hocking, 451 Mich 1; 546 NW2d 234 (1996), this Court held that inappropriate comments said from the bench during sentencing did not constitute misconduct. In Hocking, the respondent explained the downward departure sentence he wished to impose on the defendant by offering offensive and misogynistic reasons as to why he believed the defendant‘s conduct did not merit a within-guidelines sentence. Id. at 10-11. The respondent also had a very heated exchange with the prosecutor at that same sentencing hearing. Id. at 7-9. And in another exchange, in a different case, the respondent challenged an attorney to explain why a motion was not frivolous, and then sanctioned her without letting her provide an explanation. Id. at 21-22.
Respondent‘s reliance on Hocking is misplaced. First, in Hocking this Court never stated that judges were entirely immune from discipline for comments said from the bench. Id. at 12 (“Whether relief on appeal is warranted or not, it does not follow that a judicial officer is immune from discipline for the manner in which the decision is articulated.“); id. at 13 (“A judge‘s comments are not immune from censure simply because they are based on facts adduced at trial or events occurring at trial.“). Second,
appealable error of law. See id. at 11 (“[G]enerally, a judge is not subject to discipline for ‘appealable errors of law or abuses of discretion[.]’ “), quoting In re King, 409 Mass 590, 601; 568 NE2d 588 (1991). That concern is not present in the instant case because respondent‘s comments are not an appealable error of law. Therefore, we are unmoved by respondent‘s argument and affirm the JTC‘s finding that respondent committed misconduct.
C. DUE PROCESS
We now turn to respondent‘s argument that our judicial disciplinary system violates his rights under the Due Process Clause because the JTC plays both a prosecutorial and an adjudicative role. The Due Process Clause of the United States Constitution provides that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law . . . .”
constitutes structural error even if the judge in question did not cast a deciding vote” because the justice might have influenced his colleagues. Id. at ___; 136 S Ct at 1909.
Our Court has addressed due-process challenges to our judicial disciplinary scheme multiple times in the past, and each time, we have upheld the system, including the JTC‘s role, as constitutional. See In re Mikesell, 396 Mich 517; 243 NW2d 86 (1976); In re Del Rio, 400 Mich 665; 256 NW2d 727 (1977); In re Chrzanowski, 465 Mich 468; 636 NW2d 758 (2001). Respondent contends that our prior caselaw is outdated though because it relied primarily on Withrow v Larkin, 421 US 35; 95 S Ct 1456; 43 L Ed 2d 712 (1975), a similar United States Supreme Court case regarding due process that preceded Williams. Respondent contends that under the newer precedent of Williams, our Court must hold that our judicial disciplinary system violates the Due Process Clause.
We disagree. It is true that our past cases looked to Withrow in determining the constitutionality of our judicial disciplinary system. See Mikesell, 396 Mich at 530, quoting State Bar Grievance Administrator v Baun, 395 Mich 28, 35; 232 NW2d 621 (1975); Del Rio, 400 Mich at 691; Chrzanowski, 465 Mich at 486. That is less than surprising, given that our cases predated Williams. However, Withrow is still good law. Williams did not overrule it. And Withrow still strongly supports the constitutionality of our judicial discipline scheme. As the Withrow Court asserted:
The contention that the combination of investigative and adjudicative functions necessarily creates an unconstitutional risk of bias in administrative adjudication has a much more difficult burden of persuasion to carry. It must overcome a presumption of honesty and integrity in those serving as adjudicators; and it must convince that, under a realistic appraisal of psychological tendencies and human weakness, conferring investigative and adjudicative powers on the same individuals poses such a risk of actual bias
or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented. [Withrow, 421 US at 47.]
The Court further explained that both federal and state caselaw ” ‘generally reject[] the idea that the combination [of] judging [and] investigating functions is a denial of due process . . . .’ ” Id. at 52, quoting 2 Davis, Administrative Law Treatise (1958), § 13.02, p 175 (alterations in Withrow). Specifically, past United States Supreme Court cases, though recognizing the potential problem of combining investigative and adjudicatory roles, “offer no support for the bald proposition . . . that agency members who participate in an investigation are disqualified from adjudicating.” Id.
In short, Withrow supports the conclusion that generally an administrative body sharing investigative and adjudicatory roles is not a due-process violation. We still believe that to be the case for the JTC. Our Court has instituted some degree of separation between the JTC‘s investigatory and prosecutorial functions versus its adjudicatory functions by requiring the appointment of a master. Del Rio, 400 Mich at 691. See also
We believe Withrow, rather than Williams, is the more applicable precedent because the system at issue in Withrow is more analogous to the JTC. Whereas Williams involved a postconviction proceeding in a criminal case, Williams, 579 US at ___; 136 S Ct at 1903, Withrow involved a professional administrative scheme, namely the Wisconsin Medical
Examining Board. Withrow, 421 US at 37. As a body that regulates the conduct of licensed professionals, the JTC is clearly more akin to the latter.
Even if the differences between the JTC scheme and the criminal case in Williams were of no import, we would still find no due-process violation here. While Williams held that there was “an impermissible risk of actual bias when a judge earlier had significant, personal involvement as a prosecutor in a critical decision regarding the defendant‘s case,” Williams, 579 US at ___; 136 S Ct at 1905, respondent does not raise a similar contention regarding the personal involvement of any particular member of the JTC in his case. He only generally asserts that the entire JTC cannot play a hybrid role in the judicial disciplinary process. Though the JTC does play an adjudicatory role, that role is, importantly, minimized. We reiterate that it is not the JTC that provides a final adjudication and sanctions judges; that responsibility belongs only to our Court.
For these reasons, we reaffirm the holdings of our past opinions and hold, once again, that our judicial disciplinary system, specifically the JTC‘s role, does not violate the Due Process Clause.3
D. PROPORTIONALITY OF RECOMMENDED SANCTION
The JTC recommends that this Court suspend respondent for 12 months without pay. Though this Court does give “considerable deference” to the JTC‘s recommendations regarding sanctions, that deference “is a function of the JTC adequately articulating the bases for its findings and demonstrating that there is a reasonable relationship between such findings and the recommended discipline.” Brown, 461 Mich at 1292. Our Court aims to “respond[] to equivalent cases in an equivalent manner and to unequivalent cases in a proportionate manner.” Id.
To that end, in Brown we set forth seven factors that guide sanction decisions in Michigan:
[E]verything else being equal:
(1) misconduct that is part of a pattern or practice is more serious than an isolated instance of misconduct;
(2) misconduct on the bench is usually more serious than the same misconduct off the bench;
(3) misconduct that is prejudicial to the actual administration of justice is more serious than misconduct that is prejudicial only to the appearance of propriety;
(4) misconduct that does not implicate the actual administration of justice, or its appearance of impropriety, is less serious than misconduct that does;
remote participation technology (video or telephone) as much as possible to reduce any backlog and to dispose of new cases efficiently and safely.” AO 2020-19, 505 Mich xcviii, xcix (2020). Even assuming, without deciding, that the court rule was violated, we are not convinced that such a violation would entitle respondent to a new hearing held in person, particularly when respondent largely admitted to the allegations against him and was able to thoroughly examine and cross-examine witnesses during the hearing.
(5) misconduct that occurs spontaneously is less serious than misconduct that is premeditated or deliberated;
(6) misconduct that undermines the ability of the justice system to discover the truth of what occurred in a legal controversy, or to reach the most just result in such a case, is more serious than misconduct that merely delays such discovery;
(7) misconduct that involves the unequal application of justice on the basis of such considerations as race, color, ethnic background, gender, or religion are more serious than breaches of justice that do not disparage the integrity of the system on the basis of a class of citizenship. [Id. at 1292-1293.]
The JTC reasoned that
of justice—does not weigh in favor of a more severe sanction. We do not disagree with the JTC that respondent treated the prosecutors differently because of their gender. However, just as the JTC reasoned that respondent‘s conduct was not prejudicial to the actual administration of justice under the third factor, because respondent‘s comments did not implicate the unequal application of justice to the defendant in the case being tried, we do not believe the seventh factor supports a more severe sanction. Nevertheless, outside of that disagreement, we agree with the JTC‘s assessment of the other Brown factors, as well as its reasoning that additional factors (namely, respondent‘s conduct in response to the disciplinary proceedings, the effect of his conduct on the public‘s respect for the judiciary, and his years of experience) support a more severe sanction.
Despite our general agreement with the JTC‘s assessment of the Brown factors, we believe that rather than the JTC‘s recommendation of a 12-month suspension, a 6-month suspension is appropriate given the severity of respondent‘s conduct relative to that in other judicial discipline cases.5 For comparison, in In re Iddings, 500 Mich 1026; 897 NW2d 169 (2017), the respondent sexually harassed his secretary for approximately three years.
Id. at 1027.
III. CONCLUSION
For these reasons, we agree with the JTC that respondent committed misconduct in office and that public censure and suspension are appropriate. However, we believe a 6-month rather than a 12-month suspension is proportionate. Therefore, we modify the JTC‘s recommendation and order that the Honorable Bruce U. Morrow, Judge of the 3rd Circuit Court, be suspended without pay for six months, effective 21 days from the issuance of this opinion.
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh
Elizabeth M. Welch
596, 598 (recounting that there were 100 pleadings and 40 hearings held in the case and that the children had refused to participate in parenting time with their father). Those factors are not present in the instant case. Rather, we believe respondent‘s comments and past record merit a greater sanction.
In re BRUCE U. MORROW, Judge 3rd Circuit Court.
No. 161839
STATE OF MICHIGAN SUPREME COURT
VIVIANO, J. (concurring).
I concur in full with the majority opinion, including its findings of misconduct and the sanction it imposes on respondent. I write separately to explain why I believe it was error for the master to conduct respondent‘s proceeding remotely rather than in person, even though this error does not render the proceedings below invalid.
I. FACTS AND PROCEDURAL HISTORY
After the Judicial Tenure Commission (JTC) filed its formal complaint, we appointed
- The hearing will be held virtually, via the ZOOM and live-streamed on YouTube.
- The following dates are scheduled for the hearing: November 13, 23, 24, 2020, and December 7, and 15, 2020. Counsel will confer to agree to a daily starting time between 9:00 and 9:30 am and a daily ending time between 4:30 and 5:00 pm with a daily lunch break.
Respondent filed a motion to hold the hearing in person, arguing that
respondent‘s motion in an order issued October 21, 2020. The master did not construe
In his objections to the master‘s report, respondent maintained his argument that the virtual hearings the master held did not comply with
II. ANALYSIS
A. PROPER INTERPRETATION OF MCR 9.231(B)
When we interpret a provision of the court rules, the same principles that govern the interpretation of statutes apply. People v Comer, 500 Mich 278, 287; 901 NW2d 553 (2017). Thus, we begin with the court rule‘s plain language, examining the court rule as a
whole and reading individual words and phrases in the context of the entire scheme of the relevant court rules. Id. When the court rule‘s language is unambiguous, we must enforce it as written. Id. If a word is undefined, it is proper to consult a dictionary to aid in the proper interpretation of the court rule. People v Duncan, 494 Mich 713, 723; 835 NW2d 399 (2013). Finally,
An independent and honorable judiciary being indispensable to justice in our society,
subchapter 9.200 shall be construed to preserve the integrity of the judicial system, to enhance public confidence in that system, and to protect the public, the courts, and the rights of the judges who are governed by these rulesin the most expeditious manner that is practicable and fair.
At issue is
Our court rules do not define the word “place,” and this Court has never interpreted the word as it is used in
The historical context of the rule supports this conclusion. At the time GCR 1963, 932.10 was adopted, the relevant sense of “place” would have been a physical location, since the judiciary in Michigan was not using telecommunications technology for hearings at that time. See DeFoor & Sechen, Telephone Hearings in Florida, 38 U Miami L Rev 593, 597-598 (1984) (discussing the history of telephone hearings in courts); Poulin, Criminal Justice and Videoconferencing Technology: The Remote Defendant, 78 Tulane L Rev 1089, 1094-1095 & n 8 (2004) (discussing the history of videoconferencing in courts); Clark, Symposium: The Use of Video in the Courtroom, 1975 BYU L Rev 327, 328-329 (1975) (explaining that the federal judiciary did not start experimenting with video technology until 1970). Indeed, in the analogous context of general litigation, courthouses have historically served as important public spaces that convey a sense of community identity, legal authority, legitimacy, and decorum. Resnik & Curtis, Representing Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms (New Haven: Yale University Press, 2011), pp 135-136, 303, 339, 342-344.3 Some of the same considerations apply in the present context. Like trials and other court processes, the master‘s hearing is public.
Providing further support for this interpretation (if any is needed) is the fact that, on two occasions, this Court has taken affirmative steps to expressly allow for remote proceedings in the JTC. The first such change occurred when the Court rewrote the JTC court rules in 2019. We added a provision to
The second change was made in response to the COVID-19 pandemic. The Court amended
I would interpret
B. EFFECT OF NONCOMPLIANCE WITH THE COURT RULES ON THE VALIDITY OF THE PROCEEDINGS
Noncompliance with
Although the remote nature of the hearing meant that the master, respondent, and respondent‘s attorneys were unable to observe the body language of witnesses or verify that witnesses were not referring to materials or other individuals in the room for guidance, respondent has not demonstrated any miscarriage of justice that resulted from his hearing being held remotely. He was not deprived of the ability to put on a defense, and he was able to—and in fact did—examine and cross-examine witnesses. See
III. CONCLUSION
For these reasons, I would hold that the master violated
David F. Viviano
In re BRUCE U. MORROW, Judge 3rd Circuit Court.
No. 161839
STATE OF MICHIGAN SUPREME COURT
BERNSTEIN, J. (concurring).
I write separately only to indicate my continuing concern about the use of videoconferencing in these situations going forward. The circumstances of this case are unique, as the proceedings took place during a global pandemic; importantly, the proceedings took place before any vaccinations had been developed and made widely available to the general public. Accordingly,
Richard H. Bernstein
In re BRUCE U. MORROW, Judge 3rd Circuit Court.
No. 161839
STATE OF MICHIGAN SUPREME COURT
ZAHRA, J. (concurring in part and dissenting in part).
I agree with the Court that the Judicial Tenure Commission (JTC) properly concluded that respondent has committed judicial misconduct and that his challenges to the proceedings are without merit. Over the course of a criminal trial, respondent, under the guise of offering trial practice tips to the two young female prosecutors, repeatedly steered several conversations toward irrelevant, highly charged sexual commentaries and analogies that exceeded the bounds of appropriate professional interactions. Like the JTC, I conclude that respondent‘s behavior was not pedagogical but instead establishes a deliberate pattern of conduct pursued for the purpose of sexually harassing two young female lawyers in his captive audience. The JTC seeks imposition of a one-year suspension, a suspension that effectively removes respondent from the bench for the balance of his judicial career. I would impose the suspension sought by the JTC.
I strongly disagree with my colleagues that a lesser six-month suspension is appropriate. The Court makes clear this is not the first disciplinary proceeding in which respondent‘s inappropriate courtroom behavior has been the subject of discipline. Respondent is a frequent flyer before the JTC and has failed to demonstrate that he has learned anything from his previous encounters. And as his judicial career winds to a close, respondent appears to be all the more determined to thumb his nose at the criminal justice system he purports to serve, defying with impunity the commands of the law and the Code of Judicial Conduct.1 As explained in the JTC‘s decision and recommendation, respondent “had been confronted and educated
It is rare for any judge of this state to have been publicly found to have committed judicial misconduct. It is a decidedly rare for a judge to have twice committed misconduct without having resigned or been removed from office.3 Despite finding himself in these rare circumstances, as the JTC observed, respondent “has not expressed an iota of remorse. Quite the opposite, he has argued that there was nothing wrong with what he said and/or did, and has never retracted that position.” He has instead insisted that at least one of the female assistant prosecutors is lying, and at the formal hearing, he repeatedly provided facts and explanations that were discredited by other witnesses and against the great weight
You engaged in inappropriate personal conversation with a personnel staff person asking inappropriate questions and making inappropriate personal comments . . . .
It is inappropriate to discuss matters of a personal nature with staff unless that individual is an acquaintance or friend (in the instance described above, the staff person was new to you) . . . .
The JTC also mentioned that there is evidence that respondent said inappropriate intimate and sexual things to female prosecutors in 2018 and 2019 that are uncharged acts of misconduct. In 2018, when ruling on a motion to suppress evidence of cell phone records in a drug case—a case that, as the JTC noted, “had nothing to do with sex or sex crimes“—respondent posed a hypothetical question to a female prosecutor to this effect: “Would I have an expectation of privacy if I were to have sex with a man in the stall of a restroom?” In 2019, respondent asked a female prosecutor who wears a hijab what color her armpit hair is, and he shared with her that he shaves his own armpits.
of the evidence. For these reasons, I agree with the JTC that “[c]ensuring and suspending [r]espondent without pay for a period of twelve months . . . is consistent and proportionate based upon the discipline other judges have received for similarly sexually-based misconduct.” Given respondent‘s history of judicial misconduct, his lack of remorse, and the absence of any assurance that respondent will conform to the rules of judicial conduct in his waning days in office, I strain to find any rational basis to reward respondent with a lesser suspension.
I hope the Court will not rue this day, but I fear that respondent, who has failed to demonstrate that he has learned anything from his prior JTC proceedings, will make a mockery of this Court and our judicial disciplinary proceedings in the six months of prestige of office and compensation the majority has undeservedly bestowed upon him in these proceedings. The Court‘s sanction should permanently put to an end respondent‘s judicial career. Because it does not, I dissent from that portion of the majority opinion that reduces the sanction imposed on respondent.
Brian K. Zahra
Notes
Respondent contends that the JTC should not have considered uncharged conduct. But the JTC is obliged to consider prior discipline when making its recommendation.
Respondent cites In re Simpson, 500 Mich 533; 902 NW2d 383 (2017), to argue otherwise, but Simpson involved uncharged misconduct that never formed the basis for any disciplinary action. Thus, to the extent the JTC in this case considered other formal discipline, the JTC acted appropriately. We need not determine whether the JTC erred by considering other uncharged misconduct that did not form the basis for official discipline because even if such conduct is excluded, we would conclude that a six-month suspension is appropriate.
These amendments were made after respondent‘s hearing occurred.