*1
In re 1
In re NOECKER
(Calendar
9).
Argued
6,
Docket No. 124477.
October
No.
Decided
February
2005.
(JTC)
complaint
The Judicial Tenure Commission
filed a
with the
Supreme
Noecker,
against
Court
E
James
of the 45th
Court, alleging judicial
prejudicial
Circuit
misconduct and conduct
justice.
allega-
to the administration
A
master found that the
adopted
tions of misconduct were credible. The JTC
the master’s
report
unanimously
Supreme
and
recommended that
respondent
JTC,
split
remove the
from the bench. The
in a
decision,
respondent
required
pay
recommended that the
be
to
prosecuting
costs that
the JTC incurred in
the matter. Three
members concurred and stated that the
should addi-
tionally
required
pay
visiting judges
be
to
the costs incurred for
during
suspension.
hear the
docket
his interim
Three
members concurred with the recommendation of removal but not
any
with assessment of
costs.
opinion by
joined by
In an
Justice Kelly,
Chief Justice Taylok,
Corrigan
parts
VI,
through
Justice
and Justices
and
Weaver
Supreme
Court held:
Young,
ample support
findings
There is
for the master’s
of fact and
respon-
conclusions
law. There was sufficient evidence to find the
guilty
dent
misconduct. The
left the
scene
accident,
an automobile
was under the influence of alcohol when he
store, attempted
police
drove his car into a
to deceive the
about the
prosecution,
accident in an
misrepre-
effort to avoid criminal
sented the cause of the accident
Judicial Tenure Commission
professional
discipline. Respondent’s sig-
the master to avoid
misrepresentations
nificant
testimony
of the truth made in
and to
public,
publicity surrounding
incident,
and the
have seri-
ously
public’s
judiciary.
eroded the
confidence in him
respondent’s conduct
warrants
removal from the bench.
allowing
expert
testify
The master did not err in
an
witness to
regarding
typical
expert’s personal
conduct
of an alcoholic and the
respondent.
interaction with the
The determination whether
the assessment of costs is an
appropriate
Michigan
sanction under the
Constitution
left
must be
Mich
case,
not be
should
case.
for another
required
pay
he had
of the standards
costs because
no notice
imposing them.
joined by
and Justice
Chief Justice
Justice
Taylor
Young,
why
concurring,
separately
explain
he believes
wrote
*2
Corrigan,
appropriate
in this case.
from office is the
sanction
that removal
initially
respondent
lied
because he
The
is unfit for
office
and,
damaging, contin-
responsibility
his action
more
to avoid
for
Commission. This
to
oath before the Judicial Tenure
ued
lie under
determining
appropriate
primary
an
sanction is
Court’s
concern in
protect
dignity
judiciary
maintain the
of the
to restore and
during
public.
respondent lied under oath
the course of
the
The
investigation.
judge
the
Tenure
When a
lies
Judicial
Commission
oath,
judge
the
under
the
has failed
internalize one of
central
judgment
justice
unfit to sit in
of others.
standards of
and becomes
very
judicial duty
Lying
by judge goes
to the
core of
under oath
person to
the lack of character of such a
be
and demonstrates
judicial privilege.
entrusted with
concurring
Judge
in
the removal
Noecker
Justice Weaver,
bench,
rely
separately
from the
wrote
to state that rather than
on
standards,
in
a lack of
or
costs
not be
notice
should
assessed
appears
it
that the
has
constitutional
matter because
no
authority to assess a
the costs of a Judicial Tenure Commis-
judge.
proceeding against
sion
the
concurring, stated that he concurred with the
Justice
Markman,
majority opinion
analysis.
results of the
and much
its
The
Supreme
power
prevent
of review de
does not
the
Court’s
novo
according
processes
proper
of the
Court from
deference
of a sanc-
Judicial Tenure Commission
its recommendation
conscientiously
tion. The commission has
considered the factors
(2000),
Brown,
determining
set forth in In re
Opinion of the Court request reimbursement admission that its commission’s unsupported by unprecedented rules. court and Thomas L. Prowse for Judi- Paul J. Fischer Tenure Commission. cial (by Davis & PC. Peter D. Dunlap,
Fraser Trebilcock E Noecker. Morley), Houk and Brian P. for James appeal J. This is from the recommendation KELLY, (JTC) that respondent the Judicial Tenurе Commission removed from 45th Circuit James E Noecker be required prosecution. office and the costs of his pay removed from We determine should be him. against office but that costs should not be assessed I. FACTUAL BACKGROUND 12, 2003, On March was involved in a Sturgis, Michigan. motor vehicle accident vehicle *3 driving parking he was turned from a road into the lot store, Klinger Trading According of a Lake Post. to witnesses, respondent’s vehicle neither accelerated nor Rather, speed approxi- decelerated. it maintained a mately three to five miles an hour. The vehicle hit the store, causing significant damage corner of the building inventory and to the the store. Respondent emerged vehicle, from the entered the store, anyone injured. and asked if had been store’s proprietor, Pankey, upset repeatedly Mrs. was husband, stаted that she wanted someone to find her fishing Although who was ice on a local lake. respon- any dent lacked information to assist him the search lake, Pankey beyond for Mr. the name of the He claimed he left the scene of accident. that did so Pankey. help Mrs. Mich 1
Opinion of the Court was Pankey Mr. on the lake indicated where one No fishing he was near a believed fishing. Respondent access was located. access, was unsure where but know did not Pankey testified Mrs. know what like. He did not looked her husband what know did not even driving. He Pankey Mr. was vehicle wearing. Pankey was the coat Mr. the color of search, of his that, in the course testified Respondent of the car to look got the lake. He out drove to he first people were objects presumed he around and saw two spent lake. He then several on the far side he could walk across considering whether minutes unsafe, to his it he returned Deciding that was ice. vehicle. at another stopped he then said that edge, lake, down to water’s along the walked
point He saw unsuccessfully point. to find an access and tried again in a considered cove people five or six Deciding that out on the ice. it was safe to walk whether lake to a unsafe, farther around the it he drove enter, Hill. Fort Unable Camp area known as gated store, decided instead drive back to the but he started to his residence. home, wife about the told his arriving
On that he accident, Pankey. He testified then called Mrs. her if she had heard from Pankey to ask Mrs. wanted the location of husband, and, not, if he to know wanted got that he never He testified point. the lake’s access as soon as questions, those because chance ask screaming hys- himself, Pankey began identified Mrs. get here.” He repeating, “You back terically. kept She her he would return. told state were *4 police then learned that the He decided not to with him. speak
en route to his house that his wife took his the store. He testified to return to In re Opinion of the Court systolic pressure. reading Respon- blood was 220. emergency dent did his doctor not call or the room. poured testified, Rather, he he drank three to five He he ounces of vodka. testified that knew that police coming speak were with him about the acci- consumption dent. But he that the effect that his stated investigation of alcohol would have on the officers’ at his car accident did not trouble him the time. police home,
Whеn the arrived at his told them had that he consumed three five ounces of returning Pankey. vodka after from the search for Mr. Respondent agreed preliminary to take a breath test. approximately The breath test was administered two reading hours after the accident. The was 0.10.1 trooper investigated A state who the accident at the Craig scene, Wheeler, testified that was concerned may Sergeant that alcohol have been a factor. Steven generally Barker testified that there are three reasons people leave the scene an accident: their license has suspended, outstanding been there is an arrest war- they rant them, drank before or alcohol the acci- dent.
Sergeant Trooper accompanied Barker Wheeler to night on home accident. He respondent appeared away testified that move from got him whenever he close. One of the officers testified apparent that, when he confronted about an inconsistency statement, commented, you position fry “I know in a are to me.” addition to testimony Trooper Sergeant Barker, Wheeler and system. This value an refers to amount of alcohol in individual’s accident, Michigan At the time of the it law made unlawful for someone operate person “[t]he a vehicle where has an alcohol content of 0.10 grams blood, breath, per per per more 100 milliliters of 210 liters of or or 257.625(1)(b). 67 milliliters of MCL urine.”
Opinion the Court it ap- to the accident testified that several witnesses drinking had at the time of peared been the accident. how the gave conflicting stories about hе explanation
accident had occurred. One was that accidentally the but depress pedal, intended to brake slipped. the accelerator when his shoe Another pushed that, approached building, as he the explanation brake, forgot intended to but he that his foot was not on accelerator, Instead, he pedal. depressed the brake which caused the vehicle to shoot forward and strike building.
II. PROCEEDINGS BELOW accident, The the March 12 occurring events after including respondent’s conflicting explanations to media, complaint caused JTC to issue formal against respondent. may
The complaint alleging be summarized as following misconduct: leading variety
1. Persistent use of alcohol to a Constitution, of violations of the Michigan Michigan Rules, Court and the Canons of Judicial Conduct. making
2. Violations law and false state- police regarding ments events sur- 12, a motor rounding vehicle accident on March 2003. Making
3. false statements to the JTC. may complaint alleging be summarized as respondent’s conduct constituted: office, by
1. Misconduct as defined Const 1963, 6, 30, amended, 9.205; § art as and MCR re to the adminis- clearly prejudicial
2. Conduct 1963, 6, art by as defined Const justice, tration of 9.205; 30, amended, and MCR § as intemperance, as defined Const 3. Habitual 9.205; 6, 30, amended, and MCR 1963, § art as duties, judicial to perform 4. Persistent failure amended, 6, 30, § art as as defined Const 9.205; and MCR timely performance in the neglect
5. Persistent 9.205(B)(1)(b); duties, contrary to MCR *6 conduct that Irresponsible improper 6. or judiciary, contrary in the public erodes confidence Conduct, 2(A); to the Code of Judicial Canon involving ap- and the impropriety 7. Conduct contrary of to the Code of pearance impropriety, Conduct, 2(A); Judicial Canon law, con- respect 8. Failure to and observe 2(B); Conduct, to the Canon trary Code of Judicial 9.104(A)(1), (2), 9. Conduct violative of MCR (3) conduct, in that such (i) is administration of prejudicial proper justice,
(ii) exposes legal profession or the court to censure, obloquy, contempt, reproach, or (iii) ethics, contrary justice, honesty, to or is good morals. appointed
Retired Circuit John N. Fields was case, evidence, in the and made forty master heard evidence, specific findings reviewing of fact. On all the the court concluded that violated rules canons listed above. and unani- adopted report
The JTC the master’s that remove mously respon- recommended this Court decision, addition, split In in a it dent from the bench. required pay recommended that be incurred in the mattеr. prosecuting costs that JTC 8 lMich the Court of thought They members concurred. Three JTC costs pay required also be should docket hear visiting judges to incurred for A JTC separate suspension. his interim during with the recommendation agreed concurrence/dissent not be as- that costs should removal, argued but respondent.2 against sessed APPEAL
III. ISSUES ON rec- reject the JTC’s asks this Court there is insufficient ommendation. He asserts He him misconduct. guilty to find evidence allowing the master argues that erred also Finally, re- evidence. improper expert introduction of that he re- the recommendation be contests spondent pay prosecution. the costs quired RELEVANT STANDARDS IV disci- findings the JTC’s factual and its review Chrzanowski, de novo. re plinary recommendations (2001). 468, 478-479; Mich 636 NW2d judicial discipline proceeding proof standard Loyd, evidence. preponderаnce (1986). 514, 521-522; 384 NW2d *7 THE RECOMMENDATION V COMMISSION’S recommendation, the applied the JTC making its 1291, Brown, in In enunciated re factors (2000). the factor, relating It it to 1292-1293 listed each it weighed It how explained circumstances of the case. concurring opinions they as are titled. The shall refer to these We opinion opinion The referred to as the “JTC concurrence.” will he prosecution respondent pay objecting requiring the costs of his will to as the “JTC be referred concurrence/dissent.” In re op the Court Furthermore, the against respondent. factor for or each has extensive the fact that JTC considered system, judicial disciplinary with the prior involvement for fail- on various occasions been admonished having timely complete court work. ing failure to be respondent’s concluded that The JTC accident and its regarding truthful the automobile It removal from office. found justifies aftermath provided misled the and later police that Also, it found that accounts of the events. inconsistent under oath in testimony failed to offer credible when hearing. the public
Furthermore,
delays
indicated that docket
JTC
effect on the
by respondent had a deleterious
caused
The
justice
Joseph County.
administration of
in St.
JTC
in
acknowledged
attorneys
that a number of
testified
testimony
it
that their
did
respondent’s favor. But
noted
and the public
not alter the fact that
court docket
The
suffered because of
conduct.
JTC
serious
guilty
repeated
concluded that
that
his removal from office.3
requires
misconduct
A. THE SUFFICIENCY OF THE EVIDENCE
exclusively
a
power
discipline
The
resides
Court,
it
on recommendation of the
but
is exercised
1963,
complaints
§
art
30. Respondent’s
JTC. Const
amount to
regard
findings
to the master’s factual
weight
credibility
that
disagreement
about
master,
The
should be afforded to
various witnesses.
fact,
position
as trier of
the best
to assess
“Our
of review de
credibility
power
witnesses.
say
argument
“[I]t’s
at oral
fair to
examiner
indicated
necessarily
place
making
if
be
the crash had never taken
we would not
gravamen
of this is the
recommendation
for removal....
think
agree.
lying,
truly
....”
and that
should be
focus
*8
On review of the entire of fact and conclusions of law. findings Respon- master’s Eyewit- dent left scene of an automobile accident. intoxicated at respondent appeared nesses testified that and a prosecutor time accident. As a former judge, respondent stayed knew that he should have at that, the scene of the accident. It is not credible after that the being police way made aware were on their accident, him question about his he consumed alcohol. conclude that under We was the influence of alcohol when he ran his car into the store. We attempted conclude that he to deceive the police about fact he because was motivated a desire to avoid prosecution. criminal conclude that he continued to misrepresent the cause of the accident to the JTC and master, motivated addition a desire to avoid professional discipline.4 preponderance justifies finding of the evidencе
that respondent guilty judicial misconduct, not- withstanding exculpatory evidence on which relies. in the record Nothing suggests Fields findings any erred his and conclusions in manner change would the outcome of the To proceedings. contrary, we that Judge fairly believe Fields objectively Therefore, over presided agree this case. we peculiar explanations One of more for the cause of the during testimony There, respon accident occurred before the master. through passenger dent testified that he entered his vehicle door operated straddling the vehicle while the console because he had “mud on his shoes.” indicated to the master that he “used his left foot right to accelerate and brake because his foot remained straddled over the center console.”
Opiniоn of the Court respondent’s significant misrepre- with the JTC that testimony sentations of the truth made in and to the warrant action. public disciplinary
B. THE OF THE EXPERT QUALIFICATIONS WITNESS Respondent argues expert, the examiner’s Har- vey Ager, M.D., testify. was not qualified Ager Dr. is a psychiatrist who testified ábout the conduct typical of an alcoholic.
MRE 702 the rule provides expert testimony: scientific, technical,
If the court determines that or specialized knowledge other will assist the trier of fact to issue, the understand evidence or to determine a fact in qualified expert by skill, witness as an knowledge, experi- ence, education, training, may testify or thereto in the form (1) opinion testimony of an or otherwise if is on based (2) data, testimony sufficient product facts or is the of (3) methods, principles reliable and has witness applied principles reliably and methоds to the facts of the case. argues Ager’s Dr. failure to publish, or
present, peer conduct on topic review the of alcohol- ism in past the recent him disqualifies from testifying as an He expert. is mistaken. that, master noted Dr. although Ager had not
recently published or presentations made on topic, there was evidence that he graduate Wayne University. State That he ais board psychiatrist.
certified That he is a former codirector of the alcoholismunit Hospital.... at Detroit Memorial [T]hat he has treated respect hundreds of individuals with to alco- holism. ... I do find that experience his in this area in general addition to his training medical is such that he is qualified testify expert as an opinion render an regarding conduct consistent with alcoholism. 1MICH
Opinion of the Court testify long as as Ager that Dr. could The master rulеd MRE requirements testimony conformed with his here to nothing “there has been He noted that 702. not be based testimony that this would suggest sort and methods.” upon principals [sic] reliable with the testimony require- Dr. conformed Ager’s of his experience, of MRE 702. On basis ments conduct is consistent with that testified about what personal inter- an alcoholic. He also testified about in a interview. ninety-minute action with assertions, Dr. did not Contrary respondent’s Ager knowledge. of his He did not testify outside bounds caused his docket respondent’s state that alcoholism He about the behavior one could delays. simply testified from an alcoholic. expect product did work Ager
Dr. not view *10 quality did not comment on the work. testify regarding re- Ager Nor was Dr. introduced Ager The fact that Dr. spondent’s product. work and the extent unfamiliar with the work of go weight alcoholics Ager’s experience of Dr. given testimony. They are not determinative be the testimony require- whether his conformed with ments of MRE 702. Ager qualified expert find that Dr. as an witness. and, therefore, testimony complied
His with MRE 702 was admissible. APPROPRIATE
VI. DISCIPLINE charges determined that the JTC the Having proved evidence, preponderance a of the we must assess discipline appropriate whether the recommended determining “Our concern in the primary the offense. maintain the sanction is to restore and appropriate In re Opinion of the Court protect and to judiciary of the dignity impartiality 350, 372; 582 Ferrara, re NW2d the public.” (1998). is our our decision to remove Central to police, pub- the the misled conclusion drinking on March 2003. lic, about his JTC time of that he was sober at the insistence Respondent’s misrepresentations is not credible. His the accident an аutomobile acci- when he caused being about sober are consequences that carried civil and criminal dent judicial obligation uphold to his antithetical Respondent’s repeated decep- integrity judiciary. of the the incident have surrounding tion and the publicity confidence in him and in seriously public’s eroded the judiciary. on other occasions dealt with Unfortunately, we have Ferrara, In In re this Court judge’s dishonesty. supra, Judge Andrea J. Ferrara’s conduct determined original alleged after her miscon- misleading the master During from office. justified duct her removal surfaced Judge Ferrara twice hearing complaint, on letter into evi- to introduce fraudulent attempted misrepresentations that her dence. We determined trust and confidence deception public’s eroded necessary it to remоve judiciary. We found public Ferrara from the bench in order to restore trust Id. at 373. and confidence. lies, and the
Likewise, the nature of respondent’s them, seriously harmed motives behind have apparent continued integrity judiciary. Respondent’s seriously undermined the deception before the JTC has *11 as judges subject faith that are as to the law public’s them. His continued dishon- appear those who before 12, 2003, to the events of March esty regard office. justifies his removal from l Furthermore, prob- docket respondent’s persistent occa- lems, admonished on several for which sions, judicial conduct. Were violate the standards solely problems, his docket we proceeding about appropriate find an form of disci- would not removal surrounding However, respondent’s deception pline. herein the March 12 accident described warrants from office. harsh sanction of removal THE ASSESSMENT OF COSTS VII. created the Judicial Ten- Michigan
The Constitution Michigan and power ure Commission outlines discipline judges: Court to Supreme commission, judicial On recommendation of the tenure censure, may supreme suspend court with or without salary, felony, judge for conviction of a retire or remove disability physical prevents perfor- or. mental which duties, office, judicial persistent in mance of misconduct duties, perform intemperance or failure habitual clearly prejudicial to the administration of conduct justice. supreme implementing court make rules shall confidentiality providing privilege for this section 30(2).] 6, § proceedings. [Const art provision, Pursuant to this constitutional the Court governing judicial has court rules disci- promulgated noted, specific As the JTC no court pline proceedings. provides imposing rule or statute costs disciplinary matters. in the imposed past. have costs several cases majority support
The JTC on those cases in of its relies are not on assessment of costs here. But those cases In In costs point. Thompson,5 re were recommended Likewise, ordered, did not contest them. but (2004). Mich *12 In re Opinion of the Court then, however, Trudel,6 By ordered. in In re costs were In had from the bench. In re resigned Trudel the commission’s Judge Cooley consented to Cooley,7 recommendation, including decision and assess- action, not present respondent ment of In the did costs. recommendation, nor consent to the JTC’s has Rather, challenged findings he has the JTC’s resigned. that costs be assessed. and its recommendation agree We with the JTC concurrence/dissent respondent is entitled to notice of what conduct will of costs. Past subject assessment this not notice provided decisions of Court have because they explanation of the standards were issued without assessing used in costs. agree
We with the JTC obser- concurrence/dissent’s vation: given Noecker cannot be said to have been applied type
notice of the standards to be expenses that could be assessed in this case.... The extremely imposition of actual has been rare in costs history reported cases. The commission has not set Therefore, imposition today. standards for the of costs until case, imposition Supreme if the costs this law, they spirit believes are authorized would violate of In re Brown. judge given
Where a
has been
no notice of the
for imposing costs,
standards
should not be
made to
them.
leave for another
pay
time the
determination whether the assessment of costs is con-
case,
sistent
Michigan
Constitution.
required
pay
should not be
the costs of
he had
prosecution because
no notice
stan-
imposing
dards for
them.
(2003).
We have administrative consider the applied constitutional issue and standards to be the event costs can be assessed in these matters. ADM 2004-60.
VIII. CONCLUSION After careful examination of the evidence and an findings fact, evaluation of the we conclude that removal of from the bench is warranted. *13 order hereby removed from office. 7.317(C)(3), Pursuant to MCR the clerk is directed immediately to issue an order to that effect. No costs will be assessed. Corrigan
Taylor, C.J., Young, JJ., and concurred Kelly, J. WEAVER,J., joined in I parts through VI. YOUNG,J. I (concurring). fully concur the majority opinion. however, I write separately, explain why believe removal to be the appropriate sanction in this case. purpose of Judicial Tenure Commission proceed-
ings not the punishment judge, of the but to maintain integrity judicial process protect and to citizenry from corruption such, and abuse. As primary Court’s concern in determining the appropri- ate sanction is to restore and dignity maintain the impartiality of the judiciary protect and to the public.1
After
reviewing
case,
evidence in this
I believe
the evidence
establishes
was intoxi-
1
Jenkins,
Ferrara,
In re
15;
(1991);
NW2d
(1998).
350;
Mich
cated inconsis- several and constructed of the accident scene responsi- criminal in order to avoid explanations tent re- egregiоus, More driving. intoxicated bility for his the course of during oath lied under also spondent investigation, presumably Commission Tenure Judicial consequences. disciplinary judicial to avoid order sanctity long recognized has system Our act, a significant An oath is of the oath.2 and importance truthful. to be promises the oath taker establishing that justice,”3 a of the administration point the “focal As responsi- and has the public is entrusted judge the testi- evaluating justice by to seek truth bility oath, lies under under oath. When mony given the central one of failed to internalize he or she has in judg- unfit to sit and becomes justice standards ment of others. proceedings Commission
Certainly, Judicial Tenure
The vast
remedial,
penal.4
not
intended to be
are
the Judicial Tenure
found
of misconduct
majority
or
oversight
fatal; rather, it reflects
is not
Commission
being
of a fаllible human
part
on the
judgment
poor
misconduct, such as
However,
judge.
some
who is
*14
duty
very
judicial
core of
oath, goes to the
lying under
a person
character of such
the lack of
and demonstrates
privilege.
judicial
entrusted with
to be
2
(1938)
533, 537;
11,
3
(1984).
376, 386;
Callanan,
69
355 NW2d
419 Mich
In re
(1981).
210;
Probert,
308 NW2d
Taylor, C.J., Corrigan, J., Young, concurred with J. agree J. (concurring). Judge Noecker WEAVER
should be from join removed the bench and parts I-VI of the majority opinion. accident, Judge Noecker’s following accident, conduct and his attempts public and the police deceive with incredible expla- nations of the accident are clearly prеjudicial justice administration of public’s undermine the trust and confidence in the judiciary. Therefore, re- moval is the appropriate discipline.
I also concur in the result that Noecker should costs, not be assessed but different reasons. Rather rely than on a lack of notice or standards as the reason costs, not to assess I would not assess it costs because to me appears this Court no has constitutional authority to judge assess the for the costs proceedings. 6, § art provides Const that “the censure, supreme may court suspend with or without salary, retire or Nothing remove a . ...” in this provision gives constitutional any authority *15 In re Concurring Opinion Markman, J. assessing the costs judge by discipline against proceedings the Judicial Tenure Commission her. him or the results of {concurring). concur with J.
MARKMAN, I of its as well as with much majority оpinion, I a member of the Judicial Tenure analysis. Had been reached a (JTC), might possibly I have Commission appropriate in terms of an sanc- different conclusion I in the tion, agree much with which for there is the dis- agree In with dissenting opinion. particular, on the egregious that more behavior senting opinion less has, past, in the been met with part judges Further, removal. Post at 21. permanent sanction than years public of honorable thirty-five I believe that the more consid- respondent’s part on the deserve service than, my eye, eration in the formulation of a sanction given has been here. Nonetheless, the majority opinion I concur with “ notes, of review
because,
correctly
power
‘[o]ur
as it
according
from
prevent
proper
de novo does not
us
”
of the JTC. Ante at 9-10
processes
deference’
(citation omitted).
majority emphasizes
While
“
ability to observe the
deference due the
‘master’s
on their credibilit
demeanor and comment
witnesses’
id., I
the deference due the
y,’1
emphasize
would also
In
in
recommendation of a sanction.
commission
its
(2000),
Court directed the
Brown,
re
... Where standards of this sort have been reasonably cases, applied to individual this Court owes [461 considerable deference to the JTC. Mich at 1292- 1293.] here, my judgment, commission has conscien-
tiously Brown, evaluated the factors set forth in as well factors, as additional “adequately has articulated the bases for findings.” Although personal its consider- might ation of these factors have led me in the direction dissenting opinion, sanction set forth I say cannot there is no “reasonable relationship findings between and the [the commission’s] recom- Rather, mended I discipline.” believe that the commis- has identified a relationship sion such and therefore is entitled to deference by this Court.
It
proper
promulgate
for this Court to
the Brown
factors so that we could derive the “additional informa-
necessary
perform
tion
constitutional
function
[our]
30(2).”
judicial discipline
1963,
6, §
under Const
art
Brown,
Having
at 1291.
supra
promulgated these fac-
tors, and the
having reasonably
commission
considered
them, “proper deference” is
required
part.
now
on our
such deference is that
any
While
which is owed to
agency,
executive or administrative
the constitutional
Dissenting Opinion by Cavanagh, J.
commission,
6,
status of the
30, §
Const
art
necessity
underscores the
of such deference in matters
On the
discipline.
deference,
basis of such
concur with the conclusions of the majority opinion.
J. (dissenting). Viewing all the alleged
CAVANAGH,
here,
conduct at issue
I cannot conclude that respon-
dent’s removal
is warranted. Much more egregious
part
judges
behavior on the
has been met with far less
sanction than permanent
removal.
See
re Hathaway,
(2001)
672;
464 Mich
In In 590; re 441 Mich 495 (1993), NW2d 559 (JTC) on which the Judicial Tenure relies, Commission 1 concurred, writing imposed I I that would have the sanction of nine pay by months without recommended the Judicial Tenure Commission. 472 Mich 1
Dissenting Cavanagh, J. from office at the JTC’s judge removed the this Court easily distinguishable. that recommendation. find case conduct to- Judge Seitz exhibited such unfathomable colleagues years and staff for over ten that it ward his twenty-seven took to delineate it. Id. at pages engaged 594-621. He in felonious conduct in- also at phone. on his Id. 597-599. More- stalling wiretap over, contempt power by deliberately he abused his ignore an administrative order of ordering person Judge contradictory the chief and follow Seitz’s so, do person Judge order- instead. When refused to had him and brought Seitz arrested to the courtroom. There, hearing a mock judge performed devoid process jailed. due and had the Id. at 599-604. person Judge unprofessional personal Seitz also had relation- ships with his staff. Id. at 604-611. Seitz, points paragraph
The JTC to one at supra pertained judge’s that failure to file reports with the State Court Office support Administrative as for its removal recommendation. But Seitz’s failures in that regard paled comparison his other conduct, and it is that impossible believe his failure reports file several alone wоuld have resulted in his here, removal from the bench. Similarly where the two are allegations lied about the accident docket, and failed to properly manage his the JTC’s request extremely removal harsh. cases, Ferrara,
The JTC relies on two 458 Mich 350; (1998), and In re Ryman, NW2d 637; (1975), the proposition NW2d 178 *18 lying, by itself, sufficient to remove from cases, But in cited bench. both more was at issue. instance, Ferrara, For the misconduct charges tapes stemmed from the revelation of eleven on which the judge lashing was recorded horrific racial and ethnic Dissenting Cavanagh, J. and personal at or about both her people slurs found irrespective life. This Court professional Judge surrounding Ferrara’s conduct tapes, instance, For investigation grounds for removal. was Ferrara told the media and the JTC fabricated, and she to admit a tapes attempted were twice, letter time after her first fraudulent second attempt rejected. Additionally, judge’s conduct “ hearing ‘inappropriate, the formal was so during and a lack of unprofessional, respect of] demonstrative ” judicial discipline proceedings,’ for the that this Court Ferrara, found the incidents too numerous to recount. (citation omitted). at 370 supra of the severe and obvious nature of the Because judge’s continuing disrespect lies and her for the judi- warranted, ciary, this Court concluded that removal was stating: adopt the commission’s recommendation and find misleading untruthful and statements to the
public press, attempt and her to commit a fraud on the attempting twice to introduce the Avela Smith letters, unprofessional disrespectful and her conduct during stage proceеdings each to constitute miscon- duct in violation of the court rules and [Id. canons. 372.] at
Similarly, Ryman, involved issues of backdat- supra, deeds, ing improper signing testimony, false duties, a court clerk to a allowing perform magistrate’s a continuing practice becoming of law after my at 642-643. In neither judge. Ryman, supra opinion, Ryman supports Ferrara nor JTC’s assertion that lie suspected judge is sufficient remove from office. sum, support perma- I do not believe there is nently removing respondent from office. It seems that where a has been removed from office at least in *19 Mich 1 Dissenting Cavanagh, J. lies were suspected the fact that lying, for part Here, though, while was uncontroverted. indeed lies undeniably the accident story about respondent’s that lied. proof respondent there is no suspicious, that speculation more than Without denying in that he drank before being untruthful fit- drove, hardly seems punishment the most severe ting.
Additionally, adequately I do not think that the JTC admitted alcohol- finding respondent’s that supported failures. The perceived caused his administrative ism connection was flawed: logic behind the asserted causal alcohol, it does though respondent abusing even admits necessarily shortcomings job that his on the not follow testimony to that did expert are related abuse. link alco- nothing establishing to assist in between If Dr. performance. anything, hol abuse and work the connection testimony pointing Miller’s blurred obsessive-compulsive to a disorder as the cause possible problems. of work-related respondent’s event, had any plausible explanations In And no for at least some his work-related behavior. drinking one has seen or drunk on the ever including attorney clerk. testified job, long-time No court, negatively about behavior delays totally offered for case that were some reasons And respondent. notably, unrelated to the JTC admit- that of these argument ted at oral its inclusion work- “a footnote” to the shortcomings related were but investigation, the accident. gravamen its therefore, I, accept cannot the JTC’s recommenda- I Although finding tion of removal. believe its on the supported the crash was alcohol-related is record, warranted, and the a much lesser sanction is particular tailored to that event. As sanction should be Dissenting Opinion by Cavanagh, J. such, I suspend would respondent, pay, without for a period months, of fifteen until May 2006. my conclusions, light grounds do not see imposing prosecution costs the JTC’s on respon- dent, particularly light of its admission that its request for reimbursement is unprecedented and un- supported by the court rules.