In Re Servaas

484 Mich 634 In re SERVAAS (Calendar 10). Argued 4, Docket No. 137633. March No. Decided 31, July 2009. (JTC) The Judicial complaint Tenure Commission filed a formal against Judge Court, Steven R. Servaas the 63rd District alleging judicial that he had vacated his office violation of Const 1963, 6, 20, by § changing primary art his residence to a different judicial division his district and comply that he had failed to statutory requirements with notification change when he did not registration his driver’s license information or voter to reflect the complaint alleged respondent move. The also engaged that the had sexually inappropriate employees, conduct toward female court including respondent instances in which the had attached a drawing penis aof and of a woman’s breasts to court files. The Supreme appointed Judge Casper Court retired Circuit O. Grath- hearing, wohl to act Judge as master. After a formal Grathwohl comply statutory dismissed the count of failure to notification requirements, respondent but concluded that the had vacated his judicial August officein § 2005 violation of Const art respondent’s and that judicial sexual communications constituted compromised integrity misconduct and of the court. The objections report filed to the master’s in the JTC. The adopted findings law, JTC the master’s of fact and conclusions of except that it actually found that the changed had early finding residences as as 2000. This was based on documen- tary solely impeachment evidence that purposes, was offered for substantively but was not admitted. The JTC recommended that be removed from officeand assessed fees and costs having engaged misrepresentation. in deceit and intentional opinion by joined In a lead Justice Justices Weaver, Cavanagh opinion and an Chief Justice Kelly Hathaway, 11(A) concurring part in all hut quo and the discussions of warranto in the introduction and conclusion of Justice Weaver’s opinion, Supreme Court held-. concerning conduct the sexual communica- unquestionably inappropriate; however, tions was it did not rise to requiring level of blatant misconduct the severest possible office, may sanction of removal from and it be viewed as In re given long record of unblemished service. Ac- an aberration imposed. cordingly, public a sanction of censure is proper reviewing 1. The forum for whether the actions of the Attorney JTC’s executive director violated ethical rules is the Grievance Commission. inappropri- respondent’s and 2. The sexual conduct was crass judicial ate; however, it did not rise to the misconduct level

beyond requires public that which censure. respondent 3. A review of the record indicated that the seemed numbers, dates, times, regarding specific telephone and confused nearly testified; however, years other events from before he it did respondent intentionally support not a conclusion that the lied under oath. imposed.

Public censure opinion in Justice Weaver stated further the lead that the support respondent did that the record not conclusion lied under only respect appropriate oath with to his residence. The forum to judicial respondent determine whether the vacated his office was a quo Attorney warranto action filed the General the Court of Appeals. authority bypass does not the JTC have submis- quo power sion of the warranto action or the to determine whether judge has vacated his or her office in violation of Const art 20. 6, § joined by concurring, Justice Justice wrote Weaver, Hathaway, separately request Supreme open Court an adminis- investigate trative file to the events and actions of the JTC and responsible others that led to the JTC’s recommendation of this case this Court. concurring part dissenting part, Chief Justice and Kelly, opinion exceptions concurred with Justice Weaver’s lead with the 11(A) part portions and those and introduction conclusion warranto, discussing quo part and also concurred with II of Justice opinion, which stated that the existence of an action for Markman’s quo prevent assessing respon- warranto did not the JTC from misconduct, regardless dent’s of whether that conduct involved improper exercise of a title to office. She would find from the respondent admission that he moved did agreed public vacate his office and censure was the appropriate respondent’s vacating sanction for the his office and inappropriate sexual conduct. joined Corrigan, dissenting, agreed Justice Justice Markman, respon- with the unanimous recommendation of the that the JTC dent’s in this case warranted removal from office. misconduct 484 Mich 634 elected, moving respon- outside the district from which he was Constitution, Michigan dent violated the law and the and he people breached the fundamental bond with the of his district system republican self-government. established our He then engaged pattern practice in a of actions to conceal this misconduct, including providing testimony false under oath. joined dissenting, Justice Justice Markman’s dissent- Corrigan, Young’s ing opinion respects parts in all A and B of Justice dissenting opinion. separately although She wrote to state that employed unnecessarily JTC executive director harsh tactics when confronting respondent, has not established special intolerably high facts and circumstances that created unfairness, required finding process risk of which is a due procedures employed violation. The in this case were sufficient to process: appointed ensure due a master was to find the facts that decision, formed the basis for the JTC’s the JTC’s decision was only Court, Supreme Supreme a recommendation to the and the responsibility Court hears the ultimate on its de novo review to what, any, discipline decide if is warranted. V(A) (C) Young, dissenting, joined parts Justice of Justice opinion adopt and would the recommendation of the JTC Markman’s Young and remove the from office. Justice declined to authority address whether the JTC has the to determine whether the during judicial disciplinary vacated his office the course of proceedings respondent because the admitted that he had done so Young August February from 2005 to 2008. Justice concluded that respondent engaged provided the in misconduct that a sufficient during basis for his removal when he lied under oath the JTC proceedings application carry and for a license to a concealed weapon. Moreover, respondent comply statutory the failed to requirements changes for address to his driver’s license and voter registration fraudulently continued to vote in his election divi- Additionally, respondent gave personnel sion. the court an after- telephone properly hours number his located in his election division, property from which calls were forwarded to his outside his election division. All of these actions were calculated and deliberate appear though respondent effort to make it living was still division, completely the first election and are inconsistent with his reasonably anywhere claim that he believed that he could live within that, the 63rd District. Justice YOUNG would conclude it once oath, only appropriate determined that a lied -under sanctity sanction is represents removal from office. The of the oath longstanding judicial system. judge tenet of our When a lies under oath, necessary he or she lacks the character to be entrusted with judicial privilege judgment and becomes unfit to sit in of others. In re Opinion Weaver, J. Fischer and L. for peti- Paul Thomas Prowse tioner. Muth, (by Brady,

Miller Johnson John R. James S. Inhulsen) for the respondent. Monica C. (JTC) WEAVER, J. The Judicial Tenure Commission recommended that this Court remove 63rd District Judge (respondent) Court Steven Servaas from office office, vacating judicial judicial as well as for involving drawings misconduct a comment and two of a only sexual nature. Because we conclude that ap- forum to determine whether va- propriate cated his office is a action filed judicial quo warranto Attorney in the Appeals, reject General Court of we the JTC’s recommendation as to the of office vacation claim. conduct Respondent’s concerning the comment drawings unquestionably inappropriate; two however, a majority respon- this Court concludes that dent’s conduct did not judicial rise to level of blatant misconduct requiring most severe sanction: re- moval from office. In this respect, we view given years actions as an aberration his 35 of appar- ently unblemished judge service as of the 63rd District Accordingly impose Court. we censure public only.

i Respondent judge Court, is a of the 63rd District Division, Rockford, 1st Michigan. February On 14, 2008, the JTC filed Formal No. Complaint 84,1 alleging that had committed misconduct in violation of Const art 1 17, 2008, 14, 2008, January February On both filed JTC petitions suspension pay pending for interim without final resolution of petitions this matter. Both were denied this Court. 484 Mich 634 Opinion by Weaver, J. 20;2 9.205;4

§ MCR 9.1043 and MCR (MCJC), l,5 Michigan Code of Judicial Conduct Canons opinion. See note 8 of this 9.104(A) part: MCR states in following attorney, individually acts or omissions or person, grounds in concert with another are misconduct and discipline, occurring attorney- whether or not in the course of an relationship: client (1) prejudicial justice; proper conduct to the administration of (2) exposes legal profession conduct that or the courts to censure, obloquy,contempt, reproach; or (3) contrary justice, ethics, honesty, good conduct that is or morals; (4) professional conduct that violates the standards or rules of responsibility adopted Supreme Court!.] part: MCR states in 9-205 (A) Responsibility Judge. judge personally responsible A is judge’s proper for the own behavior and for the conduct and judge presides. administration of the court in which the (B) judge subject censure, suspen- Grounds for A Action. is retirement, pay, sion or with without or removal for... miscon- clearly prejudicial duct in office... or conduct that administration of is to the justice....

(1) includes, Misconduct in office but is not limited to: (c) persistent persons fairly courteously; failure to treat (d) person unfairly discourteously treatment of a because of person’s race, gender, protected personal or other characteris- tic!.] part: 5 Canon1 of the Code of Judicial Conduct states independent judiciary indispensable An and honorable justice society. judge participate establishing, in our A should In re 639 Opinion Weaver, J. ,6 2(A) 3A(3).7 (C) through and the first Specifically, complaint alleged count of the judicial that vacated his office in violation of 6, § Const art 208 when he his changed primary residence Cannon Township, from which is located the 1st Court, Division of 63rd District to Ada is located in the 2nd Township, which Division of the judicial same district.9 The second count of the corn- maintaining, enforcing, personally observe, high and and should integrity independence standards of conduct so that the and of the judiciary may preserved. judge always A should be that aware judicial system litigant public, is for the benefit of and the judiciary. not the 6 part: 2 Canon of the Code of Judicial Conduct states in judiciary by irresponsible A. Public confidence is eroded improper by judges. judge impropriety

or and conduct A must avoid all appearance impropriety.... judge respect times, B. A should and observe the law.At all judge promote public conduct and manner of a should confidence integrity impartiality judiciary. regard in the Without person’s race, gender, protected personal characteristic, a a or other judge every person fairly, courtesy respect. should treat with judge family,social, relationships C.A should not allow or other judgment. judge to influence conduct or A should not use prestige personal of office to advance business interests or those of others. 7 3(A)(3) provides: Canon Code of Judicial Conduct judge patient, dignified, litigants, A should be and courteous to

jurors, witnesses, lawyers, judge and others with whom the deals capacity, require in an official lawyers, and should similar conduct of staff, officials, subject and of court others judge’s direction and control. 8 “[wjhenever 6, 20, provides justice § judge Const art that beyond territory removes his domicile the limits of the from he which was appointed, elected or he have shall vacated his office.” argument complaint Justice Markman’s conflates the of vacation of complaints- concerning inappropriate office with the other sexual con so, doing perfectly appropriate duct. In he it asserts that for the JTC to bring asserting office, along an action vacation of with other Mich Opinion by Weaves, J. failed to alleged comply

plaint he failed to statutory requirements notification when license information and voter change regis- driver’s Township. tration to reflect his move to Ada The third count of the complaint alleged respon- sexually di- engaged inappropriate dent conduct citing rected toward female court three employees, specific instance, In the first it examples. alleged was drew female breasts on a note that drawing attached to a court file. The was made after a clerk revealing female commented on the dress of a appeared woman who in court. The second event con- drawing penis cerned the of a that on a note appeared attached a file. The third to court instance occurred during a retirement for an at the 2nd party employee Division at the party, respondent courthouse. While commented on a university sweatshirt worn a female concerning disciplinary study 1963, 6, assertions conduct. A of Const art 9.205(B) 30(2), argument. Specifically, § and MCR contradicts this authority bringing against judge JTC’s is limited to actions felony, physical disability for conviction of a or mental which prevents performance judicial duties, office, of misconduct in persistent perform duties, intemperance failure to habitual clearly prejudicial justice. conduct that is to the administration of 30(2).] 1963, 6, § [Const art authority complain judge The JTC has no that a has vacated his office. allegation authority An vacation is distinct from the JTC’s of of office judge recommend to this Court that a be censured removal from office. Justice Markman Further, asserts, citing any authority, without it perfectly appropriate quo complaint for a warranto to be combined with complaints judicial contrary, pursuant misconduct. To the to MCR 3.306(A)(1), quo brought an action for “must be in the warranto Court of Appeals.” says nothing any legal MCR 3.306 about whether the JTC has authority bring complaint quo complaint judicial and a of warranto proceeding. allegation quo misconduct in a An JTC warranto is not magically judicial simply by converted into another kind of misconduct linking allegation judicial complaints. to actual misconduct In re Opinion Weaver, clerk employed the 2nd Division. Respondent stated the woman had “an awfully small chest” for the college indicated on the sweatshirt and “should have gone Alma,” to a smaller school like which would have fit her “small chest better.” 5, 2008,

On March this Court appointed the Honor- able O. Casper Grathwohl as master to hear the case. 12, The master’s report, May 2008, issued on concluded judicial vacated his office in violation of 6, § Const art 20 when he changed his principal residence from the 1st Division to the 2nd Division of the 63rd District in August Court 2005. The master recommended that the second count of the complaint dismissed.10 The master further concluded that respon- dent’s “sexual doodles and sexual communication” con- stituted and compromised misconduct the in- tegrity of the court.

Respondent objections filed to the report. master’s The JTC issued its decision and recommendation for an order of discipline on October 2008. The JTC adopted the master’s findings of fact and conclusions of law, with the exception finding that respondent had moved to the 2nd early” Division “as In making 2000. this factual finding, the JTC relied documentary on evidence that solely was offered for impeachment pur poses in the proceedings master, before the but was not 11 substantively admitted. On the findings basis of the of 10 any objections The report, examiner did not file to the master’s required by Despite issue, apparent MCR 9.215. forfeiture of the however, “agree[d] adopt[ed]” the JTC with and the master’s conclusions regarding light issue, count II. In of the forfeiture of the it will not be opinion. further discussed 11 The examiner indicated that he did “not intend to offer” the provided respondent documents into evidence because he had not copies required by pretrial of the exhibits as both the order and MCR 9.208(C) (1)(a)(i).

642 Mich 634 484 Opinion Weaver, J. law, that of the JTC recommended fact and conclusions from office. The JTC further respondent be removed fees and that be assessed respondent recommended $8,364.38 respondent because costs in the amount of misrepresentation.” and intentional “engaged in deceit ii and find- This Court reviews the recommendations The proof of the JTC de novo.12 standard ings preponderance is a judicial disciplinary proceedings the evidence.13

A. VACATIONOF OFFICE “[wjhenever 6, 20,§ that provides Const art justice judge beyond removes his domicile limits territory appointed, of the from which he was elected or that parties agree he shall have vacated his office.” “domicile” refers to respondent’s primary term admits that he Furthermore, residence. respondent residence to the second election changed primary to 2008.14The centers on the dispute division from 2005 meaning “territory.” argues of the Respondent word “territory” that refers to the entire 63rd Judicial Dis- trict, the term limited argues while JTC that Thus, the election division the district. when within primary moved his residence from the first election division to second election division Court, the JTC maintains that respondent 63rd District (1971). 9.225; 320, 323; Somers, Mich MCR re 182 NW2d (1986). 514; Loyd, In re 424 Mich 384 NW2d 9 14Although the JTC found moved from first election division to the second election division in 2000 rather than admissions, light finding weight adds no to the allegations vacated his office. In re 643 by Opinion Weaver, J. office, vacated possessed his no authority to continue to judge, serve as a “nonjudge functioned as a mas- querading judge.” as a

However, this Court need not address argu- which correct, ment nor reach a conclusion regarding whether respondent vacated his office because our statutes, caselaw, and rules that provide court a quo brought warranto action by Attorney the General the Court of is the Appeals only appropriate exclusive to make the proceeding preliminary determination re- whether garding unlawfully vacated or held office.15 MCL provides Attorney 600.4501 that the General bring shall an action for quo warranto “when the facts clearly warrant bringing action.”16 MCR 3.306(A)(1) provides quo that the warranto action must 15 post Justice at that asserts another reason that the Markman, JTC, Appeals, bring and not the Court of can a vacation of office complaint quo statute, 600.4505, implies is that the warranto MCL quo may only brought public actions for warranto be for “claims that a currently exercising official is an invalid title to office.” At time the brought complaint against respondent, JTC its for vacation of office currently support was argument office.There is no for this 600.4505, Kapcia, 306; (1973), in MCL In re 389 Mich 205 NW2d support Rather, does not Kapcia this assertion. the Court in declared that opinion quo its did not consider whether a warranto action the Court Appeals required judge of for a who had lost his to license thereafter judge Wisely, determine whether the had vacated his office. that Court recognized Appeals jurisdiction respect Court initial exclusive with quo proceedings. post warranto n Justice at 670 asserts Markman, Kapcia entity’s establishes that the JTC cannot use other findings, including Appeals. Again, respect those of the Court of quo proceeding, authority a finding warranto the JTC no a has to make judge improperly only a office. vacated his has JTC authority disciplinary to recommend what measure be should exercised right Appeals Court based on the exclusive of the Court of to make quo proceeding. a the determination in warranto Attorney act, private party may bring If the General refuses upon action leave court. MCL 600.4501. 484 MICH Opinion Weaver, Appeals person when the Court brought into, unlawfully holds or exercises

“usurps, intrudes suffers act or if a officer “does or a state office” state quo If a of office.” law a forfeiture the by that works office, judg- the usurpation action claims warranto to hold “may right determine the defendant ment in a warranto Moreover, quo if a defendant the office.”17 unlawfully or exercise the is found to hold proceeding fines18 issue, may be assessed the defendant office at being to ousted from office. damages19 in addition and than has held for more a our caselaw Significantly, try finally to to office century only way “[t]he titles ”20 conclusively byis warranto. quo and asks Court to make the JTC this Notwithstanding, that respondent determination vacated prefatory 1963, 20, 6, § under art and he his office Const “with- longer judge” no a and acted consequently “was removing respon- a basis judicial authority,” as out However, from office misconduct. this dent issue to be resolved a precisely determination this could certainly warranto action. While Court quo the Court appeal by on the decision made review action,21 in a could determine quo warranto Appeals 17 600.4505(1). MCL 18 MCL 600.4515.

19 MCL 600.4511. 20 (1888) added). Michie, Frey 323, 327; (emphasis v 68 36 NW 184 Mich (1890); People 187, Therrien, v v also Metevier Mich 78 80 45 NW See (1920) (cannot Kongeal, 307, 317, 180 legal attack “the 212 Mich NW 636 in a de facto than direct existence of such court or its officers otherwise 299, 180 warranto”); v by quo Lindsay, Gildemeister proceeding 212 Mich FitzGerald, (1920); 537, Sempliner v 2 NW2d 300 Mich 494 NW 633 Burhans, People (1942); v v (1942); Cook Mich 7 370 304 NW2d General, Russell, Adjutant (1956); Layle v Mich NW2d 603 (1971) 638, 641; (“[Q]uo proper warranto is the 384 Mich 186 NW2d 559 ....”). remedy try to office exclusive title 7.301(2). MCR re Opinion by Weaver, whether the surrounding conduct respondent’s forfei- ture of office of judicial rose the level misconduct warranting judicial an discipline,22 original proceeding Supreme Court23 place is not appropriate determine in the first instance whether Rather, vacated his office. the law this requires question be initiated by the General Attorney resolved as an initial matter the Court of Appeals.24

Consequently, all and testimony evidence obtained during proceeding regarding JTC whether respondent had through vacated his office was obtained process unconstitutional because the JTC no has authority to on proceed quo warranto issue toor determine whether vacated his office. That determination only can be made of Appeals the Court in a warranto quo proceeding, which could then appealed to Court. If quo warranto action has been successfully brought in the Court Appeals, that Court, only decision is affirmed this may then the JTC act on the appellate court decision deter- mine whether there has any judicial been misconduct associated with the determination of the Court of Appeals judge that a has vacated his her or office.

Moreover, had the Michigan Supreme Court decided in a quo warranto appeal that had vacated 22 1963, 6, 30; § quo Const art MCR 9.225. Because no warranto action regarding was filed and no determination was made whether office, vacating vacated his we need not determine whether the act of judicial judicial office constitutes sanctionable misconduct. 23 7.304. MCR 24 By analogy, 6, 30(2), provides may § Const art this Court discipline, retire, judge felony. a remove a conviction of It could however, hardly argued, this the Court rather than circuit court adjudicate judge simply felony should and convict the the because predicate judicial during unresolved disciplin issue arose the course of a ary Laster, proceeding. (1979), In re 404 Mich 742 NW2d cited JTC, simply responsive the is not this to issue. Mich

Opinion by Weaver, power have the office, had Supreme Court would his office, and, hap- had that from to remove miscon- proceeding regarding JTC pened, any been office would have involving duct the vacation of already had exercised Supreme Court moot because had Simply put, the JTC punishment. the most severe cart before the horse. authority has nor Just as JTC neither vacated or her judge to whether a decide power office, does not have constitu- Court Supreme this authority and to authority grant power to tional authority quo to let the only the JTC. The JTC has the legal to a lawfully determina- process proceed warranto her not a has vacated his or judge tion of whether or office. we regard, to our conclusion this regard

With to characterize the reject attempt Justice MARKMAN’s as made a “determination” to which this having JTC authority has the to only Court defer. JTC must disciplinary action. Justice “recommend” MARKMAN’s as attempt “rejection” couch our unbelievable to Indeed, that a ma- Justice MARKMAN asserts improper. errs its review of JTC decision jority this Court to the commis- by “affording] no whatsoever deference added). findings.” (emphasis at 655 sion’s factual Post this precise, duty To be while Court has to review recommendation, to the JTC the deference afforded recommendation, reads the there is no after Court defer, duty any part or to of the JTC’s accept, accept, This has no duty recommendation. Court does part, any even JTC “decision” because the JTC have to how and to power not the decide whether only the recommen- discipline judge; a JTC can make and, regard, in this review of dations to this Court our In re Opinion Weaver, J. Somers, JTC recommendations is de novo.25In re (1971). 320, 323; Mich 182 NW2d 341 30(2): As established in Const § art commission, On of recommendation the tenure censure, supreme may suspend the court with or without salary, judge felony, retire or remove a for of conviction physical disability prevents perfor- mental the which judicial duties, office, persistent mance of misconduct in 25 Contrary assertion, today to Justice Markman’s our decision does not affect standard which this Court reviews JTC recommendations. accepts, As Justice Markman we review JTC’s de recommendations (1971). Somers, 320, 323; novo. In re 384 Mich are NW2d 341 And we give aware of no that mandate this Court deference to the JTC’s Michigan require any give “decisions.” The does Constitution not that we Moreover, any deference to the JTC’s “decisions.” have we held that given contingent upon deference to the JTC’s “recommendations” is us finding analysis “reasonably that the JTC’s was done.” re Chrza (2001). nowski, 468, 488; case, 465 Mich 636 NW2d 758 In this opinion, analysis reasons noted in this we conclude that the JTC’s fell “reasonably below any done” We threshold. have also limited defer regarding findings credibility ence factual to the master’s determina Loyd, supra tions. at 535-536. That deference further was limited to credibility supported by when determination whole record. requirement Id. We have never articulated a deference toward the JTC’s credibility important determinations. This is an distinction in this case accept credibility determinations; because the JTC did not the master’s instead, beyond and, it went the master’s conclusions as Justice Markman states, rightly “decided” had at moved out his division Notably, date earlier than when the master had determined. it was this hinged on Thus, “decision” which the JTC its removal recommendation. credibility apply deference to a determination would the master’s findings, assuming they supported by record; were the entire it apply contrary yet would not to the JTC’s “decision.” This is another “recommendation,” reason for us to conclude that the JTC’s much its less “decision,” granted why no deference in this case. It is unclear Justice required give Markman believes we are JTC’s “decisions” defer Further, assuming ence. Justice Markman is correct that this Court give recommendations, bound to some modicum deference the JTC’s apply analysis rule does not here because the JTC’s was not done, reasonably credibility contrary and its conclusions are to those the master. 484 634 Mich

648 Opinion by Weaver, duties, intemperance or perform to his habitual failure clearly prejudicial of to the administration conduct is justice. if this scenario: comparison purposes, consider

For rob- armed judge a has committed the JTC believes determine proceed it to bery, authority has no robbery. the did commit armed judge whether or not system guided by statutes Only judicial the criminal authority has the to make that and court rules legally If the court determines process determination. robbery, then can the guilty only a of armed judge fact that the recognize legally JTC the determined only can the JTC judge committed the crime and then on bring proceeding a misconduct the judge of the that a committed the ruling basis court’s robbery. crime armed THE JTC

B. CONDUCT OF THE EXECUTIVE DIRECTOR OF On the executive director the January 28-day served with a notice personally respondent JTC 9.207(D)(1).26The director to MCR executive pursuant at chambers accom- arrived unannounced State lieutenant. Michigan an armed Police panied Apparently, unbeknownst to either director, officer police recorded conversation. presented respondent 28-day

The director with the notice, and that respondent’s asserted office was “va- had moved his dis- cant” because outside trict, exemption homestead tax evidenced given days complaint. filing The notice must be before The opportunity apprise “purpose judge of the notice is to afford the commission, judge writing days, may such as the within matters choose, aspects allegations including information about the factual 9.207(D)(1). and other relevant issues.” MCR In re Opinion Weaver, J. notice, affidavit.27 addition to the respondent also with a for interim presented petition suspension pay, without which the director indicated would be immediately filed and mostly likely granted because “not in respondent was office.” then director offered respondent “opportu- nity “shame, quickly resolve” matter without proceedings, perjury” [or] accusations of by resigning “immediately,”28presenting prepared resignation letter on respondent’s court letterhead. The that, director stated although the JTC indicated that respondent had until morning 9:00 a.m. the next to sign the resignation letter, “prefer” the director would to the have resignation signed “right letter so now” he could “take the with” letter him. the respondent protested,

When “time seeking to somebody,” talk to the director replied respondent would be in a of “suspended days” matter and that it all would public” “become at a time when respondent “up was The election.” director the reiterated 9:00 deadline, adding a.m. that respondent also faced allega- involving sexually behavior, tions the inappropriate and the get director would respondent off [the “thrown just bench] for that.” respondent When questions asked regarding the basis of the of allegations sexually inap- propriate behavior, the director that he replied was not any there “to type do of and interview” would not “explain anything else.” told respondent director the that he could “take easy way

the out” sign letter; and resignation the otherwise, the director the “welcome[d] opportunity” 27 that, respondent if The director indicated had not abandoned his office, affidavit, then he must have false filed a which the constituted perjury. crime of “immediately immediately.” The director reiterated that means Mich Opinion by Weaver, J. respondent “engage if chose the to fullest” would

and respondent “fight that criminal observed it.” When given than consideration” “more defendants were responded being him, the director afforded resignation immediately signing letter would the through drag [respondent’s] having name “avoid embarrassing situations,” and mud,” the “avoid having judiciary” of to the state avoid the “stain perjury, [and] judge law, commits who “violates sexually refused to staff.” After harasses meeting spot, sign resignation letter on heard later, the director was concluded. A moment shooting saying ducks a barrel.” that “it’s like proceedings commenced, director’s When these drag name threats to humiliate through realized. The details the mud were soon widely present allegations disseminated were newspapers, television, on the Inter- the local on The contro- net over the course several months. surrounding meeting versy, including the facts subject director, were the between newspaper articles, editorials, and letters numerous director to the editor.29While the actions JTC question, not into need have been called Court any ethical because whether he violated rules address proper for the of the JTC director’s forum review Attorney is Grievance Commission. actions 15, Rapids Press, January District Court? Grand Disorder in the bench, Press, stay 2008, B2; Rapids battles to on Servaas at Grand involving judge, inquiry 16, Al; critical February 2008, Residents at Press, February 2008, Bl; rallies around Rapids at Grand Rockford support Deputies Press, 20, 2008, Bl; judge, February Rapids at Grand bid, February 27, 2008, Bl; Rapids Press, at Servaas Servaas’ Grand ‘reckless’, Press, 1, 2008, called Rapids March at A3. attack Grand re

Opinion by Weaver, c. drawings inappropriate and comment The remaining allegation judicial misconduct con- sexually conduct di- respondent’s inappropriate cerns employees. testimony rected toward female court The separate indicates that on two occasions respondent made lewd of female breasts and one of drawings —one a notes that attached to court files. penis were two —on indicates that testimony further com- mented on the small chest size of a 2nd Division female employee during a retirement at the 2nd Division party Notably, courthouse. even realized he had made a mistake because he called the employee following day to to her. Unfortu- apologize personally nately, calls, finally she would not return his so he left message on her voice mail for the apologizing gaffe.

Respondent’s acknowledged respon- counsel that dent’s conduct was but that “inappropriate,” contended it spontaneous represented “isolated” inci- respondent’s nearly dents from 37-year Respon- career. argues respondent’s dent’s counsel conduct war- rants, most, at This public reprimand. argument JTC, consistent with the recommendations of the which respect respondent’s indicated that with to count sexually inappropriate public conduct merited a cen- sure. agree

We with the JTC that sexual respondent’s however, inappropriate; conduct was crass and we do agree not conduct rises to the level of beyond misconduct censure. requiring public

D. VERACITY OF RESPONDENT’S TESTIMONY appears While Justice Markman to assert authority whether or not the JTC had the to proceed, against appropriate given sanctions are 484 MICH 634 Opinion by Weaver, J. Justice MARKMAN’s conclusion that lied respondent under oath. Having reviewed the entire record closely, we do not agree with Justice MARKMAN’s respondent conclusion that lied under oath.30 On the contrary, agree we respondent’s with counsel that this Instead, not case of arrogance. appears it respondent believed that he was still properly his district and that there was no problem living outside of the 1st Division.

At the time proceedings occurred, these respondent had seven residences. He owned homes in both the 1st and 2nd divisions of the 63rd District Court. He Division, rented a home in the 1st and he also owned Lake, homes in Whitefish Michigan; Ludington, Michigan; Carolina; North and Florida. Respondent testified that he renovates hobby, houses as a that from 2000 to he often spent night at one of the two houses he was renovating in the 2nd Division when he was too tired to drive back to his 1st Division residence. 30 fact, respondent’s moving admissions of to the 2nd division house respondent establish nothing because, believed he had to hide under law, interpretation his simply- he did not “vacate his office” if he Further, lived in another division of the same district. change weapons failure to permit address on his concealed does not anyone. establish that instance, he intended to deceive In the first renewing permit. 13, 2001, was his Since November the date applied permit, first for the his address remained the fact, by succeeding safety same. In as inspection demonstrated certifi testimony succeeding years, respondent cates and his own did not pay even already completed attention to the address line itas had been for him sign the Rockford Chief Police. All he had to do was permit. Again, attempt rather than a deliberate to deceive officialsabout change address, respondent’s explanation very credible. Specifically, change simply oversight: the failure to his address was any corrections, did not think read the form and make he just put gun admitted that he did not read the form—he and the renewed certificate under the bench. In re Opinion Weaver, J.

Thus, during five-year period, respondent tes- tified he back and forth between the houses that went remodeling Certainly he necessary projects. as to have to expected subsequently provide cannot be in residing that he was one house or establishing facts much time had passed two houses after so reason to being prompted by any particular without regard in Again, respondent’s so do. actions didn’t matter support perception his that it whether spent night he at the 1st Division house or house, residing 2nd Division because he was still the 63rd District. on, that from 2005 he resided

Respondent admitted home, record reflects that he the 2nd Division Indeed, did to hide this fact. nothing name, address, and number for the 2nd telephone phone home were listed in the local book. Division late Specifically during meeting approximately March 2006 between the State Court Ad- respondent, ministrator, director, and the JTC executive the State Administrator, respondent, Court said to “You’re not living in district.” In said “I your response, respondent am too.” note that even Importantly, though respon- we dent first accused office in vacating judicial was his 2006, it early appears again that no assertion was made until ambushed on respondent January was 2008. Again, respondent try deny did not the fact that he time, in the 2nd Division at that he living was because he could in that as he was thought long live division running not for reelection. not

Consequently, we do conclude lied under oath. At times he seemed confused and could not of different numbers telephone remember series (until recollection), dates specific he later refreshed times, years nearly and events occurred Separate Opinion 484 MICH 634 Weaver, fairness,

before he testified. we cannot conclude that intentionally lied under oath.

III. CONCLUSION Because conclude only appropriate we that the forum to determine whether vacated his office a quo warranto action filed by Attorney General in the Court of Appeals, reject we the JTC’s recommendation respect to the vacation of office claim. Because the JTC lacked legal authority bypass submission of the quo warranto action the Attorney General, the finding respondent vacated his office is null and powers void. The held JTC do simply not include the power by the JTC to determine the existence vacancy of a in judicial office.

Finally, with respect to the claim against respondent judicial for misconduct involving a comment and two drawings manner, of a sexual while respondent’s con- duct unquestionably inappropriate, believe, we under unique circumstances of this case that only public censure is required. Accordingly, this opinion public stands as our censure. 7.317(C)(3),

Pursuant to MCR we direct the Clerk of the Court to issue judgment order immediately. JJ., CAVANAGH and concurred with HATHAWAY, J. Weaver, J. {concurring I separately). join authored and WEAVER, however, the lead opinion; I separately write to request that this Court open administrative investigate file to unfolded, how this matter including the events and ac- (JTC) tions of the Judicial Tenure Commission and/or responsible others leading up to the JTC’s recommenda- tion of this case to this Court. J., concurred J.

Hathaway, Weaver, In re Opinions Markman, Kelly, and J. C.J., dissenting in and in (concurring part C.J. KELLY, opinion except I in Justice lead for concur part).* WEAVER’S 11(A) the introduction and con portions and the part warranto. discussing quo clusion of an with Justice MARKMAN that the existence agree I Ten- prevent warranto does not Judicial quo action misconduct, assessing respondent’s ure Commission from that conduct to in volve the regardless happens whether I Accordingly, exercise of a title to office. concur improper part opinion. Judge II of Justice MARKMAN’s Given that he moved outside his election Servaas’s admission division, I find that he did vacate his office. case, I find unique public

Under the facts of this appropriate censure is the sanction for violations office) I III (vacating judicial (inappropriate counts and conduct). sexual (dissenting). today rejects The Court MARKMAN,

unanimous recommendation of the nine-member Judicial (JTC) Tenure Commission to sanction respondent, Judge Servaas, for moving Steven misconduct involves outside of the district from which he was elected in direct Constitution, violation of Article 20 of the Michigan § thereby fundamentally breaching and MCL and 600.8201, constituents; engaging faith with his then misconduct, pattern practice of actions to conceal this including providing testimony false under oath. Based on below, I findings Commission’s and on the record JTC, agree disagree majority with the with the its directly imph- refusal to sanction for conduct eating integrity judiciary. I therefore dissent.

Moreover, in the JTC’s unanimous determina rejecting oath, majority tion that bed under aff ords no deference whatsoever to the Commission’s factual 1 Instead, in findings. majority engages 11, 2009, September * Amended order entered 485 Mich 869— Reporter. 1 duty Justice Weaver asserts that this Court has “no to ... defer ... Mich 634 Dissenting Opinion by Markman, superficial analysis that not accurately does reflect the record established in this case.

Perhaps remarkably, most in asserting that the JTC jurisdiction lacks respondent, sanction Justice WEAVER (albeit in her lead opinion majority not a opinion this regard) concludes that the JTC lacks even the authority to investigate a judge breaching his or her constitutional obligations, grounds on the that the JTC is forbidden even to undertake actions regarding judicial misconduct if such misconduct could “in the first instance” have been ad- dressed an alternative legal proceeding, this case quo action for warranto. Justice WEAVER’S assertion is a profoundly distorted interpretation of the JTC’s author- ity and significantly would circumscribe the commission’s ability to effectively investigate and address instances of judicial misconduct.

I. FACTS In January 2008, the JTC initiated proceedings against respondent, asserting that he had moved out side the 1st Division of the 63rd District Court located in Kent County, and from which he had elected, been violation of the constitution and statutes of this state. (em- the JTC’s recommendationfs]... or... decisionfs]... .” ante at 646 omitted). phasis may noting It be worth this statement of firm directly contrary Brown, conviction (2000), Into re 461 Mich Court, including in which this Justice “[w]here stated that stan- Weaver, promulgated [by dards ... have been reasonably applied Court] cases, individual this Court owes considerable deference to the JTC.” Further, Chrzanowski, 468, 488; in In re (2001), 465 Mich 636 NW2d 758 again majority, with Justice Weaver in the “[w]e this Court stated that find analysis reasonably [the JTC’s] to done and therefore accord the recommendations of the JTC considerable deference.” 2 The 63rd District Court has two divisions. The 1st Division includes Rockford, Springs the cities of townships Tyrone, Cedar and the Solon, Nelson, Spencer, Sparta, Algoma, Courtland, Oakfield, Alpine, Cannon, Plainfield, Grattan, 600.8130(4)(a). judge.” and “has 1 MCL encompasses township Ada, 2nd Division as well as the cities re Opinion by Dissenting Makkman, J. having on moved premised respondent This belief was Avenue, property Creek Honey residence to 201 his January in District’s 2nd Division. On located the 63rd examiner, by an officer 16,2008, accompanied the JTC’s Police, respondent’s State went Michigan from The examiner commu- charging papers. to deliver office that had moved respondent nicated the JTC’s belief and, therefore, vacated his his had outside division resign by he could respondent office. The examiner told subject disciplinary proceed- day the next or else immediate for interim sus- ings, including petition resign. did not pension pay. Respondent without 17, 2008, filed a January petition On the JTC that ground interim with this Court on the suspension residence was outside the 1st Division. day, supplemental petition, The next the JTC filed a had created a “dangerous that arguing a loaded his bench. by keeping pistol situation” behind on unanimously petition Court denied this Febru This ary 2008. 14, 2008, filed a second February petition

On the JTC the additional setting for interim forth suspension, from had removed himself argument inappropriate also in engaged his elected division and against complaint respon- The JTC also filed a behavior. day. The complaint alleged dent on the same by moving office his had vacated Lowell, townships Rapids, Rapids East Grand and and the of Grand Bowne, Cascade, Lowell, Byron, Gaines, Vergennes, Caledonia and 600.8130(4)(b). Respondent regularly judge.” has been also “has 1 MCL to, in, maintained his courtroom the 1st Division elected and has Rockford, Michigan January 1973. since 16, 2008, January Michigan During State the examiner’s visit on pistol behind the confiscated the from an unlocked box Police officer complaint allege any did not misconduct bench. examiner weapons pistol, respondent possessed a valid concealed based on the permit. 484 Mich 634 Dissenting Opinion by Markman, residence from the 1st Division, Division to the 2nd registered he was not a elector of the division from which he was an judge. elected The complaint also alleged that respondent engaged misconduct directed toward female employees. court This Court unani- mously denied the petition second April on 2008. 9.210(B)(1)

Pursuant to MCR we appointed a master to hold hearings and make findings of fact and law.4The master held a hearing 28, between March 3, 2008, April to determine the merit of allegations contained in the complaint. JTC’s The master found that respondent had moved to 201 Honey Creek in 2005 in violation § of article 20 of the Michigan Constitu- By doing so, tion. he was also no longer a “registered elector” of the 1st Division as required by MCL Thus, 600.8201. the master concluded that respondent had failed to comply with the constitutional and statu- tory requirements necessary to hold a judicial position, 2(B) in violation of Canon of the Code of Judicial Conduct.5 The master also concluded that certain inap- propriate drawings and comments on part constituted misconduct and compromised the integrity of the Respondent court. then filed objections with the master’s findings to the JTC in accordance with MCR 9.215.6 Casper Grathwohl, The master was judge O. a retired from the 2nd County.

Circuit Court in Berrien 2(B) Canon of the part: Code of Judicial Conduct states in judge respect A times, should and observe the law. At all judge conduct and promote public manner of a should confidence integrity impartiality

in the judiciary. part: MCR 9.215 states in respondent may [T]he examiner or the file with the commis- original copies sion an objections and 9 of a statement of to the report master, along supporting with a brief. In re Dissenting Opinion IVLurkman,J. 17, 2008, On October the JTC unanimously agreed with, and adopted, findings, except master’s had, the commission found that fact, to 201 Honey moved Creek Ada in 2000 Township rather than finding 2005.7 This was based primarily on telephone logs the examiner had introduced during hearing. logs master’s These contained telephone numbers that respondent had to the provided district indicating hours,8 court where he could be after located and showed that respondent provided Honey his 201 Creek telephone exclusively number almost as his after- hours contact location from 2000 until 2008. From these logs, the JTC concluded that respondent’s consis- listing Honey tent of 201 Creek as his after-hours eight-year location for an period he, indicated that fact, had lived at 201 Honey during Creek time. Moreover, the JTC found that respondent’s assertion that he had not moved outside of his prior division 2005 demonstrated a “lack of candor and honesty,” which amounted to “false testimony” as to his residence from 2000 to 2005.

Based on these findings, the JTC recommended that respondent be removed from challenges office. He now argues recommendation and that this Court lacks 9.220(B)(1) adopt findings MCR authorizes the JTC to the master’s in part, provides: whole or in findings The commission must make written of fact and along conclusions of law with its recommendations for action with

respect proceedings, may to the issues of fact and law in the but adopt master, findings part, by the in whole or in reference. part judicial duties, respondent required As of his to be “on call” nights per respond police requests several week order to to warrants, emergencies. Judges magistrates and for other rotated call, being required provide on and were to an after-hours contact they number at which could be reached. 484 Mich 634 Dissenting Opinion by Markman, misconduct judicial sanction him for authority to constitutes quo

because an action for warranto his title to office legal proceeding exclusive to evaluate reelection. before his November 2008 II. WARRANTO QUO and asserts agrees Justice WEAVER allegations that this Court need not decide whether the our complaint set forth in the are true “because stat- utes, caselaw, and rules that a provide quo court war- Attorney action General in the brought by ranto and exclusive only Court of is Appeals appropriate determination re- preliminary to make proceeding whether vacated or held garding unlawfully judicial (emphasis original). Ante at 643 office.” view, my misapprehends Justice WEAVER the nature Court, is a of the action now before this which disci- the JTC and this Court are plinary proceeding constitutionally to Const art empowered pursue, 6, 30(2), § directly not an action concerned with respon- dent’s current claim to his office.9 Most importantly, authority judicial this Court’s sanction misconduct is restricted, not affected in any way, by otherwise warranto, only existence of an action for which is quo removing available for the from purposes public currently office an official who fails to hold valid title to 9 Although quo altogether an action for unrelated warranto disciplinary here, respondent, action at issue Justice set WEAVER, theory suggesting forth what I view as an erroneous that the JTC has no authority support disciplinary to use facts that could action Because, quo proceeding. if those facts also used in a could he warranto my judgment, theory preclude considering would this Court from necessary fully facts that are address misconduct and to proportionate sanction, necessary determine a I believe it is to refute this theory. reiterate, however, theory, although that Justice set Weaver’s I opinion, majority support. forth in the lead have does not In re Dissenting Opinion Markman, J. Justice assertion that the Finally, that office. WEAVER’S JTC, in the of a disciplinary proceeding context which office, rely title to must validity judge’s involves the of the factual of the Court of in a findings Appeals quo on directly contrary this Court’s own warranto action is 306; guidance In re 389 Mich 205 NW2d Kapcia, (1973), duty and would undermine the JTC’s to make findings factual independent individualized misconduct regard judicial whether has occurred. constitutionally entity, The JTC is a established 6, 30(1), § Const art created to assist Court, people Michigan, evaluating conduct and behavior of judges currently holding office 30(2) throughout 6, § this state. Article of the Michigan relationship Constitution describes the between the JTC and this Court as follows: judicial commission,

On recommendation of the tenure censure, supreme may suspend court with or without salary, judge felony, retire or remove a for conviction of a physical disability or prevents perfor- mental which judicial duties, office, persistent mance of misconduct in perform duties, intemperance failure to habitual clearly prejudicial conduct that is to the administration of justice. supreme implementing court make rules shall providing confidentiality privilege this section and for proceedings. [Emphasis added.] 9.205(B), In MCR this Court has provided guidance to the JTC determining what constitutes judicial “mis- conduct in office”: censure, judge subject suspension

A with or with- pay, retirement, felony, out or removal for conviction of a physical disability prevents performance or mental duties, office, persistent misconduct in failure to perform judicial duties, intemperance, habitual or conduct clearly prejudicial justice. that is to the administration of imposed, judge may In addition to other sanction 484 MICH 634 Dissenting Opinion Markman, costs, fees, pay expenses by ordered to incurred prosecuting complaint only judge commission in if the engaged involving fraud, deceit, in conduct or intentional misrepresentation, judge misleading or if the made state- commission, investigators, ments to the the commission’s Supreme the master or the Court.

(2) Conduct in of the violation Code of Judicial Conduct or the may Rules of Professional Conduct constitute a ground regard for judge, action with to a whether the conduct occurred before or after the became a judge or was related to office. (3) deciding regard whether judge action with to a is

warranted, the commission shall consider all the circum- stances, including age allegations possi- and the bility prejudice judge of unfair to the because of the allegations delay staleness of the pur- or unreasonable suing the matter. 9.220(B) In addition, MCR expressly authorizes the JTC to make both factual and legal determinations regarding whether judge a has committed misconduct that warrants an sanction, official may which range private from a office, censure to from and, removal noted at note 7 it supra, allows the JTC adopt findings master’s in whole inor part.

Although the JTC and this Court are constitutionally vested with the authority to address all matters judicial misconduct, Justice WEAVER concludes that this authority is implicitly limited by the existence of an quo action for Quoting Michie, warranto. Frey v 323, 327; Mich (1888), 36 NW she notes that only “determination can be made ... in a quo warranto proceeding. . . .” Ante at 645. matter,

As an initial Justice Weaver’s discussion of quo warranto fails to acknowledge that an action for quo warranto an entirely legal distinct proceeding In re Dissenting Opinion Markman, a action initiated the JTC.10 As disciplinary from 3.306(A)(1), in MCR provided against usurps, quo person a who [a]n action warranto into, office, unlawfully intrudes or holds or exercises a state against officer who does or suffers an act that state office, brought [by law works a forfeiture of the must be Attorney Appeals. General] in the Court of quo pursued Because an action for warranto can be against person” unlawfully “a who holds “state office,” action, sense, including a in one judgeship, has a much broader than a JTC application disciplinary action, only against judge. which can be initiated However, proceeding, unlike a JTC an action for quo only narrowly warranto is available to address a cir- misconduct, range judicial cumscribed of which is re- stricted to that into a calling question judge’s title to extent, office. To that an action for warranto has a quo application disciplinary more limited than a JTC action. Perhaps importantly, most the fact these two actions may applicable sometimes to the same set of facts, each, does not alter the distinctive nature of certainly viability does not indicate that of one is somehow restricted the existence of the other. Although conduct did call question into his title to office between 2000 and there is no statutory or constitutional restriction on the JTC’s authority to proceed with an action based upon fact, misconduct that represented by his actions. In the fact an despite quo action for warranto and a light proceedings, expressly nature distinct of these as recognized opinion, in this it is remarkable that Justice Weaver could legal authority assert that I somehow claim that “the JTC has .. . bring judicial complaint quo complaint warranto and a of misconduct added). proceeding.” badly (emphasis in a JTC Ante at 640 n 9 This is a stated, wit, interpretation plainly distorted is that the can what JTC pursue quo never an action for warranto under circumstances. 484 Mich Dissenting Opinion by Markman, J.

JTC disciplinary may overlap applicabil- action their ity judicial misconduct, to some instances of did they here prior respondent began to the date serving new term of office Justice WEAVER has supplied no warranto, rationale as to why quo an action for which Legislature Court, was created and this should constitute the exclusive means to address such miscon- duct, especially in view of the fact that the JTC is the only entity that is constitutionally empowered to ad- dress all matters of misconduct.

In addition to the fact that an action for quo war- ranto is altogether distinct from a JTC disciplinary proceeding, there are three supportive arguments for why an action for quo warranto has application no First, the instant context. an action quo for warranto is only applicable to public claims that a official is cur- rently exercising invalid title to office.11This obser- vation is supported by 600.4505, MCL which describes the nature of a quo warranto action:

(1) brought against persons In actions usurpation office, judgment may right determine the of the defen- party dant to hold the If plaintiff alleges office. that he is office, may entitled to the the court decide which of the parties is entitled to hold the office.

(2) judgment If party rendered in favor of a who is office, entitled, averred to be entitled to the he is after taking office, the oath of executing any official bond law, required by which is party to take the office. Such shall 11 Justice support [my] “[t]here asserts is no for Weaver argument,” quo ante at n may only 643 that “actions for warranto brought public currently be exercising for ‘claims that a official is an ” apart invalid title to office.’ from the law that Quite has been cited section, in this judge Justice seems to be unaware that a who WEAVER previously subject quo held unlawful title to office could never be to a necessarily warranto action because the issue would be moot. In re Dissenting Opinion Markman, J. custody given papers in the of the be all the books and defendant, belonging power, or within his to the office. language MCL 600.4505 uses written ex- Significantly, clusively voice, suggests in the active which the did not intend for this action to be initiated Legislature currently holding a official is not against public who office or has exercised title to his or her previously who in Indeed, office as indicated MCL improperly. 600.4505, and further MCL 600.4511 and supported 600.4515, quo MCL an action for warranto is most frequently procedure employed to resolve conflict- provides: claims to office.12MCL 600.4511 ing brought against person usurping When an action is for person rightfully office entitled to the office is a it, party right judgment and avers his is rendered in favor, any damages he is entitled to sustained because usurpation by the defendant of the office from which damages may been The for defendant has evicted. claim joined warranto, brought quo be with the claim for or year separately judgment within 1 in the action after quo warranto. MCL 600.4515 provides: quo proceeding

Whenever defendant warranto adjudged guilty usurping intruding is found or or into or unlawfully holding office, franchise, exercising any or only apparent exception quo to the rule that a warranto action only may brought currently exercising he to oust an officer who is authority claim under an invalid to office is described Osterhous ex rel Duren, 464, 466; (1912), Vander Veen v Van 168 Mich NW which Court stated: Ordinarily try proceedings public title to a office cannot be

brought expired, nearly expired after the term has or when it is so effect; inquiry that the would be of no but an action commenced during may prosecuted judgment the term of office to final after expiration term, recovery damages for the or costs wrongful assump- incurred which relator has sustained or authority. tion of 666 484 MICH634 Dissenting Opinion by Markman,

privilege, judgment shall be rendered that the defendant be altogether office, franchise, ousted and excluded from that privilege. awarding or against addition to costs defendant, may, discretion, impose the court in its a fine upon guilty, exceeding $2,000.00. the defendant found not Thus, 600.4511, again using voice, MCL the active suggests that an action quo for warranto constitutes a procedure intended to resolve conflicting claims to an office, regardless involved, of whether misconduct was by determining party which has the superior current claim.13Because there is no as to dispute 13Although quo competing warranto is most often used to determine office, Ellis, 146, 161; claims to an Lamoreaux v 89 Mich NW (1891), quo may nonetheless clear makes that an action for warranto used to competing oust a current “intruder” from office even without a claim. Lamoreaux stated: attorney general ought The proceedings by quo not to institute upon having warranto the relation aof citizen no claim of title to office, showing unless is such as to afford reasonable grounds for the belief that the incumbent of the office is an therein, competent

intruder or one not under the Constitution to [id.] it. hold Indeed, purpose originally is the employed which the writ was England. Although reign King the writ dates back as far as the of Richard (1189-1199), notably I during it reign King was most invoked of (1272-1307). I Edward “ appear judges ‘Claimants were to riding [itinerant before them circuit], they actually franchise, and if it was found that held a writ of them, requiring Warranto would Quo be served on them to show what they liberty wreck, warrant gallows, claimed to have the or or view of ” frankpledge, writs, might Frohnen, return of or whatever it be.’ The one many: rights, corporate rights and the diversity Individual and the (2005) (citation omitted). groups, 107 W LVa R If the claimant successfully by could not showing proper answer the writ exercise of title, the franchise could be confiscated the Crown. Id. at 819. The writ King was then carried unsuccessfully over to America in 1685 when James II attempted quo proceedings to use warranto “revok[e] the colonial proprietary EnglandD” charters of the colonies in New as a method of maintaining Gitelman, separation control over the colonies. law and equity chancery and the Arkansas courts: Historical „ In re SERVAAS Opinion by Dissenting Markman, J. office, an action for has quo current claim warranto application present no to the facts.

Second, provides remedy MCL 600.4515 that the sole “judgment for a warranto action is that a shall be quo contrast, a By rendered that defendant be ousted... .”14 action initiated the JTC can result disciplinary simple from a censure to range spanning of sanctions 30(2), office, 1963, 6, § art and removal from see Const ultimately the JTC and this Court must determine or relationship,” “pro- what constitutes a “reasonable portionality,” particular between misconduct and these Brown, 1291, available sanctions. In re 461 Mich 1292 (2000). Thus, the inflexible “one size fits all” remedial aspect quo why of a warranto action also demonstrates disciplinary being pursued by action the JTC is the in proper proceeding which to address misconduct.

Third, this in Mich at Kapcia, Court concluded 389 on, the JTC is from prohibited relying adopting, another entity’s findings factual conclusions as a (1995). realities, political anomalies Ark 17 U Little Rock L J Thus, historically currently, quo both warranto actions have been never previously used to ascertain whether an officer or franchise-holder exercised office, proper title to and never has the writ been invoked to discern whether misconduct, engaged previous the one who claims valid title has much less misconduct. General, 108; Attorney Burhans, ex v See rel Cook 304 Mich 7 NW2d (1942) (“The attorney general,... by quo information in the nature of warranto, regent seeks ouster of defendant from the office of University Michigan ground legal right on that he has no to the office usurper having usurped and is a mere therein.... Defendant the office of regent, barring in defiance ofthe mandate of the constitution him under holding rendering circumstances from such office and all votes cast for him void, attorney general bring proper proceeding in it was for the this quo office.”); Layle Adjutant nature of warranto to oust him from such v General, 638, 642; (1971), citing 384 Mich 186 NW2d 559 Sobocinski v (1951) (“[P]laintiff Quinn, 386; quo 330 Mich 47 NW2d 655 instituted office[.]”). proceedings warranto to oust defendant from 484 MICH634 Dissenting Opinion Makkman, J.

basis for recommending that this Court impose a sanc- judicial misconduct; tion for rather, the JTC must make independent findings factual regard. this In Kapcia, the Attorney Grievance Commission revoked the re- spondent’s practice However, license to law. shortly thereafter, was elected as a probate judge. JTC, The citing the revocation of the respon- license, dent’s law argued that the respondent had 6, § violated article 19 of the Michigan Constitution, which requires all judges this state to have a valid law Thus, license.15 the JTC concluded that the respondent had vacated his office and had therefore committed judicial misconduct. rejected This Court that argument, stating: Manifestly, begs question; contention presup- it

poses that the removal from office which the [JTC] seeks proceedings accomplish these already has occurred. presentation proceeds [JTC]’s on the erroneous assumption that [JTC] had no choice once it was Judge Kapcia established that suspended had been from practice of law but to recommend his removal and that Court, likewise, him; that, has no choice but to remove truly indeed there nothing is before us to consider because professional consideration of whether the misconduct charged against Judge Kapcia proven and what to do about it ended when the order of the Grievance Board became final. discipline judges is confided to the discretion of

the [JTC] and this § Court under 30 of art 6. It left [a] is to case-by-case exercise of discretion to decide whether a justice or judge presumably duly practice licensed to law — qualified justice when he judge as a or a conduct —whose results in right [the] loss of practice law should disciplined by removing him from [Kapcia, office. 389 Mich 314.] at “justices § Const art judges 19 states that of courts of persons

record must be practice who are licensed to law in this state.” In re Dissenting Opinion by Markman, Ultimately, Kapcia concluded that the JTC must investigate underlying Attorney the facts Grievance Commission’s decision to suspend if judicial license in order to determine misconduct had occurred.

Thus, proceeding had the Commission commenced a against Judge Kapcia charging him with misconduct based gave grievance on the acts which rise to the State Bar proceedings, obliged the Commission would have been deciding consider all the circumstances whether disciplinary respon- recommend action. The Commission’s sibility regard by viewing in that cannot be avoided we, accompli. matter as a Nor can total reliance on fait grievance proceedings, the decision reached in the escape responsibility judgment. our to exercise an individualized [Id. 312.] at holding that the JTC escape cannot its responsibility

to “exercise an individualized judgment” based on “all circumstances,” to determine disciplinary what action appropriate, Kapcia indirectly observed that the JTC and this Court must possess authority to examine a judge’s misconduct for actions that may also serve as the basis for a quo warranto action. Specifically, Kapcia distinguished relied, cases on which the JTC had judges which had losing been ousted from office for law, their license to practice thereby amounting to a office, vacation of because those all cases involved actions for quo warranto. Id. at 313-314. There is simply no reason for this Court to have discussed the proper for procedure pursuing disciplinary actions against judge Kapcia, expressly while recognizing that other cases for quo warranto have resulted in ousting judge losing license, from office for his or her if empowered the JTC is not to make recommendations actions, disciplinary which this Court is then free to 484 Mich 634 Dissenting Opinion by Markman, based on conduct that also form

accept reject, could quo the basis of a warranto action.16 holding In contrast to this Court’s Kapcia, majority states: certainly appeal this could

While Court review on by Appeals quo decision made the Court of in a warranto action, and could determine whether the conduct sur- rounding respondent’s forfeiture of office rose to the level warranting judicial discipline, misconduct original proceeding Supreme appro- in the Court is not the priate place to determine in the first instance whether Rather, requires vacated his office. the law question Attorney be initiated General and Appeals. resolved as an initial matter [Ante Court 644-645.] at

Justice Weaver’s assertion that a quo warranto action prerequisite JTC’s, Court’s, is a to the ability and this to make determinations respondent committed misconduct, including specifically office, vacation of by stating original that “an in the proceeding Supreme Court is not the appropriate place to determine in the occurred, instance” that misconduct is exactly first counter to counsel that Kapcia’s “responsi- the JTC’s bility in that regard cannot be avoided viewing the matter Rather, the JTC accompli.” must make fait independent findings occurred, of fact that misconduct irrespective of entity’s findings another and conclusions Kapcia support” Justice states that “does not the assertion WEAVER quo may only brought “actions warranto for ‘claims that a ” public currently exercising official is an invalid title to office.’ Ante at However, Kapcia proposition. Rather, 643 n 15. I do not cite for such a I Kapcia only proposition prohibited cite using for the that the is JTC from findings entity engaging of another as a substitute for in its own Thus, inquiries. Kapcia pertinent by establishing factual here that the simply adopt Appeals’ findings quo JTC cannot the Court of of fact in a making independent warranto action as a substitute for its own factual findings regarding judicial misconduct. In re Dissenting Opinion Markman, J. Therefore, if regarding the same issue. even the Attor- had ney successfully pursued quo General a warranto term in against respondent during prior action office, the would had make JTC still have to its own factual that office in a findings respondent vacated his current disciplinary proceeding precondition as a to the conclusion that such a vacation of office constituted judicial misconduct.

Justice WEAVER demonstrates her confusion in this regard by stating: 30(2)

By analogy, 6, § provides Const art that this may discipline, retire, judge Court a remove convic- felony. hardly argued, however, tion of a It could that adjudicate this Court rather than the circuit court should judge felony simply and convict the of the because the predicate during unresolved issue arose the course of a judicial disciplinary proceeding. [Ante 24.]. 645 n at This judge felony” Court does not “convict a of [a] simply because the same facts support felony the are presented “during judicial the course of a disciplin- Rather, ary proceeding.” a disciplinary proceeding a against judge may properly lead to a of facts finding a preponderance of the evidence miscon- occurred, Noecker, 1, 8; duct has In re 472 Mich (2005) (holding NW2d 440 that the examiner has “the proving burden of a allegations by preponderance of evidence”), which might otherwise constitute a felony if found the circuit beyond court a reasonable example doubt.17 Justice WEAVER’S of the circuit court 17 This observation also seems to have led to confusion on Justice part, whereby hardly argued, “[i]t she

ranto is not one of the specifically enumerated situa- tions that would allow the JTC to bypass responsi- its bility to make judgment” an “individualized based on circumstances,” “all the is required which before the JTC can recommend that this Court sanction a judge for misconduct. sum, Justice WEAVER’S failure recognize to the

distinction a quo between warranto action and a disci- plinary action importance. is of critical She is correct that an action quo for warranto constitutes the “exclu- felony,” “by preponderance judicial but rather finds a of the evidence that occurred,” directly misrepresents misconduct has Justice WEAVER proposition being 8, supra. asserted. See also note Neither this Court nor judge However, felony. consider, the JTC can convict a of a the JTC can recommending judge sanctioned, a basis for underlying that a judicial example, judge actions that constitute misconduct. For a who person, ultimately assaults another but who is not convicted for one of culpability, may subject number of reasons unrelated to his still be disciplinary a JTC action on the basis such conduct. Does Justice truly disagree proposition? Weaver with this same Does she believe that judge a under these circumstances would be immune from a JTC disciplinary action? Kapcia, listing specifically See 389 Mich at for a of these enumerated situations. Dissenting Opinion by Markman, In re office,” trying sive method for title to Gildemeister v 299, 303; (1920), 212 Mich Lindsay, 180 NW 633 but the regard exclusive nature of such an action would exist in judge only to a if no misconduct was involved. a actions judge’s Where constitute misconduct and a office, warranto, vacation of both an action for quo General, Attorney initiated and a disciplinary JTC, proceeding, may Here, initiated be pursued. the JTC has initiated a action based on disciplinary which, misconduct as a inter- result of his vening reelection in November now pertains office, term in respondent’s previous which in turn means an action for quo longer apposite. warranto is no Further, warranto, unlike an action for quo disciplin- ary action initiated JTC can address a judge’s misconduct that occurred before his current term in office, 9.205(B)(2), MCR and may result in an appropri- ate office, sanction short of removal from MCR 9.205(B). Because an action quo warranto cannot lie where the term of office for which the title being contested has expired, Layle, 642,19 384 Mich at which 19 Indeed, Attorney pursues if proper quo General action for warranto, but, resolved, judge subsequent before that claim is awins reelection, the action becomes moot and must be dismissed. As we stated Layle, 384 Mich at 645: abolished, proceedings try if Even the office has not been public brought expired,

title to a office cannot he after the term has nearly expired inquiry or even if it is so the would be of no Duren, effect. Osterhous ex rel Vander Veen v Van 464; 168 Mich (1912). generally try 134 NW 456 The writ will not lie to abstract title an office. Although initially may anomalous, quo such a result seem the fact that a ongoing dispute regarding warranto action cannot survive without an an simply emphasizes point quo individual’s title to office action for fundamentally disciplinary warranto is of a different nature than a action quo only initiated the JTC. Whereas an action for warranto is viable so long dispute regarding judge’s office, as there remains a current title to 484 MICH634 Opinion by Dissenting Markman, is correctly exactly Dissenting Opinion by In re Markman, even question his current title for office if the Attorney General, an officer, executive-branch independent unwilling any for reason to action for pursue quo This, my judgment, significant warranto. is a limitation upon JTC’s, Court’s, and this constitutional preroga- 30(2). 6, § tives that is found within nowhere article Equally important, such a result would undermine the very i.e., of purpose provision, this constitutional to foster public in the integrity confidence of the judiciary.

Additionally, Justice WEAVER would apparently extend her quo novel warranto to analysis judicial misconduct alternatively a gives potential felony charge. rise to By doing this, she would prohibit the JTC from recom- mending action disciplinary against a based judge on the underlying for charge actions such a unless there awas felony formal conviction. This remarkable proposition would judges allow in this state to commit criminal for behavior which JTC no authority would have to address. Under Justice Weaver’s misapprehension of the JTC’s authority, constitutional the underlying conduct forming felony charge, assault, theft, whether arson, fraud, could not then form the basis for a of finding office,” “misconduct in only because it [a is “when trial] court process legally determines a judge guilty felony]” [a that the JTC can then “bring proceeding judicial misconduct,” based on the necessary facts to support conviction. Ante 648.21 at Justice analysis apply extent which Justice would her to other Weaver judge engages contexts such when a in acts that could form the basis conviction, penalty, imposed by a misdemeanor or even a civil a trial agency, court may or administrative is unclear. That such circumstances course, not, not be involved in instant case does make it less irresponsible propose upon open a new constraint and leave JTC question the extent to which this constraint will carried out to its logical certainly, unprecedented ends. Almost if Justice Weaver’s under standing authority prevail, of the JTC’s was to it would ensure that subject judges discipline routinely “Weaver-defense,” to JTC raise the 484 MICH 634 Opinion Dissenting Markman, J. in the support find no arguments absolutely

WEAVER’S this state.22 or constitution of law sum, quo of an action for warranto existence assessing respondent’s from prevent not the JTC does conduct misconduct, hap- of whether that regardless to exercise of a title office. improper involve the to pens place taken and a recommen- that assessment has Once made, here, fully as this Court is authorized to dation recommendation, I do so. that and would consider

III. EXAMINER’S CONDUCT visited noted, the JTC’s examiner previously As resign he and demanded that respondent’s chambers regard in this I with the facts position. from concur that, by majority, agree present, forth at as set review of JTC director’s proper “the forum for the Attorney Ante at is the Grievance Commission.” actions 650. however, disagree, majority’s impli-

I with the do examiner, engaged the tactics in cation i.e., scope authority, beyond their the JTC’s at conduct fell body “in first least until a trial court or administrative had instance” a decision. rendered worth, theory her it is also contradicts For what Justice Weaver’s own (2003), Gilbert, dissenting opinion cf. in In re 469 Mich 1234 note “judicial disciplinary proceed- opinion, opined 2 of this which she Gilbert, ings quasi-criminal In neither nor in nature.” are criminal majority imposing a more Justice Weaver criticized the not severe Judge marijuana, smoking on Gilbert for id.—an action sanction Thomas been, not, criminally Judge could have for which Gilbert but convicted. 22 theories, whether, of concern is under Justice JTC Also Weaver’s legal findings this Court would be bound factual and trial agencies in and administrative cases of misconduct. This courts question negative, Kapcia conclusively answered in the but Court precisely suggests required what of the JTC and this is Justice Weaver is this Court. re 677 Dissenting Opinion by Markman, eventually they prove wrongful if to

even have been inappropriate, any particular have relevance to the cannot, matter now before us. This Court a func- responsibil- behavior, tion the examiner’s avoid its ity to address misconduct. To do so adopting, be would tantamount in the context of judicial discipline, “exclusionary some variant of the requires rule,” which “the exclusion of evi- reliable dence when the constable Powell, blunders.” Stone v 465, 496; 3037; US S Ct L Ed 2d (1976). Here, there no claim that the examiner obtained evidence this case unlawful means. Moreover, if we were to allow the examiner’s trou- bling respon- behavior influence our evaluation of by failing impose dent’s misconduct a sanction solely respondent’s misconduct, based on our decision contrary 9.200, would to MCR which states: independent judiciary An being and honorable indis- justice pensable society, our subchapter to in 9.200 shall be preserve integrity judicial construed to system, the of the public system, to enhance that protect confidence in and to public, courts, rights the judges and the of the who are governed by these expeditious rules the most manner practicable is that and fair. disregarding judge’s sum, misconduct out of

disdain for examiner’s is behavior not a rational response designed “preserve integrity to of the judicial system,” public nor does it “enhance confi- system.” keeping Thus, dence in that with this responsibility uphold integrity Court’s of judiciary, appropriate the Court should determine solely sanction based on misconduct, irrespective conduct, of the examiner’s which re- subject mains the of administrative consideration at this time. 484 634 Mich

678 Opinion by Dissenting Markman, OF REVIEW IV STANDARD findings and factual reviews the JTC’s This Court Noecker, 472 novo. de recommendations disciplinary must be of misconduct finding at “The JTC’s Mich 8.23 In re the evidence.” of preponderance supported (2006). 180, 189; NW2d 246 Mich 720 Haley, 476 However, we the JTC’s recommen- “[although review to the will defer novo, generally this Court dations de sup- are they adequately JTC’s recommendations when Chrzanowski, Mich In re 465 See also ported.” Id. (2001); Brown, 461 Mich at 1293. 488; 636 785 NW2d V RESPONDENT’S CONDUCT A. LAW AND CONSTITUTION VIOLATING issued a decision recommendation JTC has concluding, among other discipline in this case outside the division things, moved 6, § of 20 elected in violation article from which he was registered he was not a the constitution of elected, as he was elector of the division from which JTC, these According required by MCL 600.8201. that also of the and constitution are violations law Can- misconduct sanctionable under constitute article 1 and 2 the Code of Judicial Conduct and ons 30(2) agree. §§ 20 and constitution.241 6, § Article Constitution states: Michigan JTC’s, master’s, “[I]t not the conclusions and recommenda is the Chrzanowski, ultimately subject by this to review Court.” tions are Mich at 481. Conduct, part: Canon 1 states Code Judicial judiciary indispensable independent and honorable An establishing, society. judge participate

justice in A our should observe, high enforcing, personally maintaining, and should independence integrity and of the of conduct so that the standards In re Dissenting Opinion by Markman, J. justice judge Whenever a or removes his domicile be- yond territory limits from which he was elected appointed, or shall vacated his he have office. “territory

The from he necessarily which was elected” means the geographic location from which received the requisite number of votes to obtain his i.e., judicial office, 1st Division the 63rd District Additionally, Court.25 “domicile” is as “[t]hat defined true, place fixed, permanent where a man has his principal which, home and establishment and to when- absent, ever he is he has the intention of returning.” (5th ed). Dictionary Black’s Law A domicile is “that place a person voluntarily where has fixed his abode not for a mere special temporary but with a purpose, present making home, intention of it his perma- either or for nently an indefinite or unlimited length of time.” judiciary may judge preserved. always be A should aware judicial system litigant public, is for the benefit of the judiciary. not the 25 Respondent argues: territory The from which he was elected is the 63rd District. 600.8130(4). district, one This is with two divisions. MCL The fact fact, has it two divisions not does make it two districts. legislature, creating court, explicitly of a divisions district stated, provision judicial “The for election divisions of a district have no effect on the administration of a district.” MCL [Respondent]’s Honey 600.8102. residence at 201 Creek Drive in undeniably always

Ada within the 63rd District. He has main- principal his tained residence one of the divisions of the 63rd District. Contrary argument, respondent dispute to this does not that he was exclusively Therefore, elected from votes cast within 1st Division. it “territory is the 1st Division that constitutes the from which he was elected,” Indeed, not the District. 63rd as stated the JTC: sincerity respondent’s proposed interpretation broad provision question by explanation is called into at the hearing that he believed he had to be domiciled within the 1st [only] “running” Division when he was for re-election. 484 Mich

680 634 Dissenting Opinion Markman, 85, 101-102; 106 570 362 Mich NW2d Henry Henry, v omitted). (1960) (citation “One marks quotation and than place; located in more one permanently cannot be 1 one place; in than one cannot domiciled more an of time period to for extended cannot intend remain Estate, Mich in 1 In re 336 place.” Scheyer’s more than (1953). the 645, 651-652; “Generally, 59 33 NW2d However, a of fact. question determination of domicile is where, here, underlying dispute, the are not in facts law court.” Fowler v question domicile is a for the 362, 364; Ass’n, Ins 254 Mich 656 NW2d App Auto Club (2002). 856 “a

Further, requires MCL 600.8201 that candidate to district court shall be licensed judge for and a the and be a registered law this state shall practice he and division in elector of district election which seeks to hold office.” hearing, respondent to

During master’s testified his 2000 following regarding facts domicile between 2008, rendering used decision. which the JTC its Respondent stated that from 1984 until he owned Street, a Divi- house on South Monroe within the 1st sion, purportedly he lived until 1999. In he where in Ada purchased Honey a home on 201 Creek Avenue an area Division from which Township, outside 1st he He that he was not domiciled was elected. claimed year there 2005. testified Respondent until Honey Creek, he bought after he at 201 property he Property sold the Monroe because “needed money,” then sister’s house at 260 moved his Street, Division, I Oak within the 1st “where was tenant, was basically specifi- a and that in 2000.” More “[Wjhen cally, stated, bought Honey I Creek, me, why I money that’s lot Property] my sold the and moved sister’s [Monroe re . Opinion by Dissenting Markman, J. Street], enough [at house Oak who was kind not to charge Respondent changed rent[.]” me his license registration and voter to reflect this move. He claimed he this living arrangement maintained until began when he Thir- renting apartment located on Mile, which Respon- teen was also the 1st Division. again changed voting dent both his driver’s license and address However, Thirteen Mile property. during time, respondent “signifi- admits that he spent Honey cant” amount of time at 201 slept Creek and words, there “a lot.” In other testified that he sold his in primary residence 1999 so he could fix up Honey 201 Creek and live his sister at no cost until 2002, living when he at Thirteen began Mile. 2002, respondent purchased property, another 109

Honey Creek, yet and then purchased another property Belding Road, Division, on which is within the 1st and to testified, of, as which he “I bought that I June 2003, think and I didn’t move early there until 2004. IAnd lived at in, [Thirteen until I but Mile] moved it wasn’t I bought when it.”26 Respondent changed his registration 11, 2004, voter on March and his driver’s 23, 2004, license on March to the Road Belding address. However, he registered mailing his address with the Secretary being as State the address of the 1st In regard Division courthouse. the period to immedi- ately following respondent’s purchase Honey of 109 Creek, he testified to the following: Honey get [109 Creek]

That house I to had done because person it, buy there that I was wanted to and so was down 26 Respondent daughter purchasing that testified his to contributed Belding property an Road as investment but she never lived there. Additionally, respondent property actually testified that was — also, place for [him] [his] “investment but it’s [he] where living at the time.”

682 634 484 Mich Opinion Dissenting Markman, night, and a number I late into there a lot and worked [Honey just slept 201 If up Creek]. I at times went late, Lake, to I went back the Bostwick I didn’t work that Belding Road address. Belding Road continued to

Respondent stated December, 2005, he moved to when until his domicile his Creek, further confirmed Honey which was Honey for 201 Creek exemption a homestead filing of admitting that he was domiciled However, despite 2006. 2005, Honey after testified at 201 Creek (a) 2007, using the 1st Division that, in he voted within (b) for a concealed Belding address,27 applied his Road 2007, Belding his February using on weapons permit (c) address,28 registration his changed never voter Road (d) Creek,29 driv- Honey changed to never his Honey Creek address.30 He also license er’s his knowing change admitted he had voter license, and, despite driver’s consis- registration move from 2000 to he tently doing during every so 201 Honey do so he Creek. failed to once moved testimony, admits to respondent expressly From Honey 1st to 201 moving outside the Division Creek He that he intended for that of 2005. also admits to be domicile. Both of these admissions are location findings master’s and the JTC’s fact. reflected 27 Honey respondent: moving [after “And to 201 The examiner asked you using Belding you actually your Creek] address while were voted Honey Creek; right?” Respondent living answered: in is that “Yes.” 28 February regard respondent in to his 2007 The examiner asked your Belding weapon application, you permit: “And list concealed on residence; your Respondent primary an correct?” address “That’s swered: correct.” 29 your respondent: change examiner “You didn’t voter The asked Creek]; Respondent Honey right?” registration [201 answered: “No.” your respondent: change “You driver’s The examiner asked didn’t Honey Secretary [to Creek] with the State record or information either, you?” Respondent “No.” did answered: In re Dissenting Opinion Markman, These admissions alone are sufficient to demonstrate “the respondent territory moved outside of from elected,” which he was which is a violation of article § Similarly, respon- 20 of the constitution. the fact that him dent moved outside of the 1st Division made division, to be “a of that ineligible registered elector” of the fact that regardless improperly voted in that division after 2005 violation of MCL 600.8201. Thus, 6, § comply failed to with article 20 of 600.8201, the constitution and MCL which is also 2(B) of Canon violative Code of Judicial Con- law,” requirement judge duct’s that a “observe the as a result Canon l’s that a maintain requirement judge “integrity” judiciary.” Additionally, respon- dent’s conduct runs afoul of MCR 9.104:

(A) following attorney,[31] acts or omissions individually person, inor concert with another sire miscon grounds discipline, occurring duct and whether or not attorney-client relationship: in the course of an (2) exposes legal profession conduct that or the censure, obloquy, contempt, reproach[.] courts to or There can be no question judge’s obey that a failure to law, which he has taken an uphold, “exposes oath to legal profession obloquy, [and] the courts to con- censure, tempt, reproach.”

B. FAITH BREACHING law, Beyond acting dereliction of the very fundamental sense has broken the bonds with judges Because all elected within state must be licensed attor neys, attorney governing apply equal the court rules conduct force judges. 484 Mich 634 by Dissenting Opinion Markman, J. By acknowledgement, of his district. his own people knowingly departed political

he has from their commu nity to become of another part political community. may artificiality While there well be some to these communities, economic, political while social and cultural circumstances of the 2nd Division not may markedly Division, different from those of the 1st system republican government our of nonetheless is predicated upon people” idea the “we the are entitled, and are obligated, to assert their control over government through the actions of the selection of local representatives. By process, people communi cate their the kind concerning they views of leadership public desire from their in Particularly institutions. case of the selection of judges persons who do not — ordinarily make public policy, and who cannot be con “representative” sidered officers in the same sense as persons elected to the legislative executive branches government32 of must be some further —there (1871): See, e.g., People Royce Goodwin, 496, 499-500 ex rel v 22 Mich functions, [judges’] When we consider the nature of their inde- pendence apparent. Judges of local affairs becomes still more differ public having representative from all other servants no duties. The

judicial department eveiy government of civilized is one of the three parts sovereignty co-ordinate of the which acts for the state expounding departments the laws and enactments in which the other people legislators approvers legisla- have acted for as and the of represents only have, people tion. It the law which the their proper agents, cannot, therefore, bound themselves. It of its duties, circuit, any counfy, be said to serve or district. Its services performed state, sovereignty are all behalf on as the from emanates____[T]he only object having which all the law local bring justice people, courts is to home to the to but not have cases people might shape decided as the desire of the the decision. is, judges presumed speak, That are not on behalf of their constituen- cies, particular constituencies, or on behalf of concerns within their but only represent law, speak the interests of the for the rule of law. This why is one reason the Framers of the United States Constitution did not provide popular judges they see the need to for the election of did for re Dissenting Opinion by Markman, J. why state, all judges rationale for our are exception Supreme justices, Court elected 8, 11, §§ art “districts” or “circuits.” See Const and 16.33 explanation certainly

At least of this must part judges the are entitled to select as their people values, judgment, sense of whose whose persons whose life are in some sense a function of their experiences, that community, persons roots within who have shared tangible way day-to-day some the trials and tribula- tions, influences, and of citizens within that community. the Although experiences persons shared within the may 1st and 2nd divisions not be as dissimilar as those communities, geographically far-flung between more it outgrowth respect is nevertheless an of our for the integrity government, specifically peo- of local and obligation ple’s right engage local self- government, seriously that we must take the matter of public a official who has breached faith with his community that required by our constitution from it. departing Congress people Michigan

members of President. have judgment made a different in their constitution. provisions applicable analy In addition to the constitutional to this sis, Legislature 168.467f(l), has enacted MCL which makes clear that judges respective district court must also be elected from their divisions 168.467f(l) or districts. MCL states: section, Except provided judges as otherwise in this of the judicial district court shall be in each elected district and election judicial general division of district at the election to fill vacancies

in office!.] Thus, regardless why people of the rationale for have chosen to require judges that district court be elected from the district and division serve, they people unmistakably in which will have decided that such requirement exist, respected by should and that must be decision JTC and this Court. 484 Mich 634 Dissenting Opinion by Majrkman, J. sum, acknowledgement that he effectively

moved outside of the 1st Division after 2005 acknowledged both a violation of the law and constitu- tion, and a breach of faith with the of his people community, both of threaten “public which confidence 2(B), in the . . integrity judiciary,” . Canon “exposing] risk the courts to obloquy, contempt, cen- 9.104(A)(2). sure, reproach,” Thus, MCR I agree with the JTC that respondent’s vacation of his electoral district constitutes misconduct and warrants an imposition of sanctions.

C. FALSE TESTIMONY In addition to the period which during after from, acknowledged moving and living out- side, Division, determined, the 1st the JTC on the basis telephone logs produced during the hearing, master’s respondent had, fact, in moved outside of his 2000, electoral district in rather than 2005. Specifically, these logs 2004, indicated that from 2000 to provided Honey his 201 telephone Creek number as his exclusive after-hours contact for where he could be police reached when officers needed him to make “prob- able cause” determinations and issue warrants. Be- situation, cause of a medical respondent was not re- quired to on call from June 2004 until sometime in and, thus, he did not provide an after-hours during contact number that period. Once respondent 2005, resumed this in responsibility he briefly provided the telephone number for the Belding Road in property However, the 1st Division. calls to the Belding Road address were Honey forwarded Creek.34From the 34 appears respondent provided It Belding telephone his Road response number in to a visit from the State Court Administrative visit, During Office. this was informed that he was in Dissenting Opinion Markman, In re beginning year, again of 2006 until June of that he only number, his 201 Creek provided Honey telephone 2007, beginning and from June 2006 until re- spondent Belding his Road number provided telephone In again Honey with calls forwarded to 201 Creek. only Honey resumed his 201 providing Creek number. telephone logs, respon-

From these the JTC concluded that dent’s listing Honey consistent of 201 Creek as his he, contact from information 2000 to 2008 showed that fact, Honey beginning lived at 201 Creek basis, rather than 2005. On that the JTC concluded that respondent’s assertion that he had not moved outside his district before 2005 evidenced a “lack of candor and honesty,” testimony” regard- which amounted to “false ing during period. residence Although generally “this Court will defer to the they JTC’s recommendations when are adequately sup- ported,” Haley, re 476 Mich at the JTC’s use of telephone logs these is not its without difficulties. Of particular concern is the produce examiner’s failure to these logs accordance with the master’s discovery specifically, order. More did the examiner not make respondent aware that in possession of, he was use, logs intended to these until respondent was actu- ally testifying during the master’s hearing. Once the began examiner questioning respondent about these documents, respondent’s objected counsel that the ex- produced logs aminer had not these and that the master should not them allow to be used for substantive responsibility violation of his to remain domiciled within the division immediately from which he It was elected. was after this visit respondent temporarily changed his after-hours contact information to Belding property, Honey Road with calls forwarded his home at 201 Creek. 484 MICH634 Opinion by Dissenting Markman, J. Agreeing respondent, with the master ruled purposes. only impeach these documents could be used to respondent.

However, called during hearings, these the examiner the 63rd employee Donna Gillson—an District Court testify, and, and an on acquaintance respondent —to personal knowledge, independently the basis of her she had her all respondent provided established that in the telephone logs. the numbers contained She also only changed testified that reason his respondent after-hours contact information to the Beld- telephone ing Road address in 2006 was because the State Court (SCAO) notify Administrative Office had threatened to the JTC that he was outside of the living 1st Division.35 that, although noting respondent It is also worth he now admits that 2005, likely only moved outside the 1st Division it seems he after fihng exemption made this admission based on a homestead form in 2006 Honey primary that fisted 201 Creek as his residence as of which impossible denying made it him to continue that this was his home filing. specifi once he discovered that the JTC was aware of this More cally, respondent when was confronted SCAOofficials in 2006 about living district, initially living Honey outside his he denied at 201 Creek. district, living When these officials asserted he was not inside his respondent replied, Shortly thereafter, respondent began “I am too.” having Belding property his calls directed to the Road with calls for Honey countywide warded to 201 Creek. He also voted in a election using Belding his Road address. The inference that originally attempted misleading to continue SCAOabout where he lived supported by February 1, 2007, further is the fact that on after respondent application weapon filled out an to renew his concealed permit and, application, Belding property in that also fisted the Road majority, viewing his actual residence. The rather than this as additional engaging attempt evidence that was in “a deliberate change address,” deceive officials about his ante at 652 n claims change simply oversight: respon that “the failure to his address was any corrections, dent did think not to read the form and make as he majority’s willingness admitted that he did not read the form ... .” The ignore “oversight” especially troubling in view of the fact that form, required during testimony, which to read stated, specifically application “I understand that this is executed under In re 689 Dissenting Opinion by Markman, J. Ms. Gillson then stated that had his calls Belding forwarded from the Road to 201 property Honey Creek. Significantly, explained she that the rea- son respondent changed telephone number back to Honey 201 Creek 2006 was because his call- made it forwarding impossible for him to receive faxes at his home at 201 Creek. Honey testimony This also lends finding credence to the JTC’s that respondent provided testimony false because the examiner asked if he “ever had [his] calls forwarded from penalty oath and swear or affirm under of law the above answers are true my knowledge. intentionally and correct to the best of I understand that making application felony punishable by a false statement on the is a imprisonment years of not more than four or a fine of not more than $2,500 respondent’s signature or both.” Given verifies that he signed subject “penalty law,” this form “under oath” and the “ majority’s attempt light simply [a]ll to make of this falsehood because he sign permit,” entirely unpersuasive. had to do was n ante at 652 majority’s respondent’s responsibility The minimization of for read- ing signed a Rowady sworn document that he seems inconsistent with v Corp, 54, 60; App (1988), K Mart 170 Mich 428 22 NW2d which then-Judge joined opinion stating, plaintiffs “Nor is failure to Weaver agreement signing read entire before it relevant. It is well established person ground cannot avoid a written contract on the that he did not terms, it, terms, supposed attend to its did not read it was in its different added.) (Emphasis or that he believed it to be a matter mere This form.” proposition century. See, basic has been settled in our caselaw for over a e.g., Rory Co, 82; v Continental Ins 473 Mich n 703 NW2d 23 (2005). explain, requires For reasons she does not Justice Weaver less personal responsibility experienced judge read, understand, anof seriously legal take document to which he swears under oath than she requires regard of all other citizens of this state to their own written contracts. respondent provided years That a false address two after he allegedly Honey Creek, strongly suggests respon- moved to 201 dent would have continued with his “deliberate effort to deceive Yet, sanctioning respon- officials” about his true address. rather than conduct, majority repeatedly dent for his makes excuses on his majority being similarly empathetic behalf. I look forward to the when appellants judges criminal and civil who are not raise the “all I had to sign permit” do was defense. MICH Dissenting Opinion by Markman, another[.]” address to contrast to Ms. one home I “No, not that testimony, respondent replied, Gillson’s know of.” following day, respondent again called to

testify. During testimony, respondent stated that he logs. through had The examiner then went reviewed logs each number contained telephone verified that all numbers contained him the Fur- belonged during therein listed times. ther, decision, after the JTC rendered its which was substantially logs, respondent challenged based on the However, the use of those documents in this Court. in so, made in doing respondent following the statement his brief:

Assuming, arguendo, duty logs presented that the were copies accurate of the ones that were created in the business, ordinary surprise it course of should come as no [respondent] phone Honey that listed a number at 201 place Creek a where he could be found when not on the testified, [respondent] spent significant bench. As he renovating Honey amount of his free time two homes on Creek.

Thus, although respondent’s challenge to the JTC’s use terms, in telephone logs “arguendo” framed he notably logs, does not contest the of these validity it indeed admits that should “come as no that surprise” he Honey listed the 201 Creek number for where he could be contacted after hours. her personal

Because Ms. Gillson testified from own knowledge about telephone after-hours numbers respondent that had and because provided, numbers, respondent later verified all these can hardly in question good logs faith the information contributed to the JTC’s that respondent conclusion provided testimony claiming had false when that he did Dissenting Opinion by Markman, J. In re Thus, not move outside of his district 2005. before the examiner’s failure to despite properly produce before the telephone logs hearing, information contained those records nonetheless affords an alto- gether proper basis from which the JTC could conclude truthful. respondent’s testimony was not

Further, stated, as the examiner initially logs were intended to impeach respondent regard to his testimony that he had not moved outside the 1st division before 2005. Although respondent’s relocation part constituted of the substantive claim levied against him during the this same infor- disciplinary proceeding, mation ascertaining credibility is also relevant and, in service purpose, suggests strongly of the latter truthful, that respondent being primary was not purpose logs employed. Accordingly, which were the JTC properly evaluated these documents in deter- had mining provided testimony. false The JTC’s conclusion that respondent moved outside the 1st division before 2005 is further supported by Ms. Gillson’s testimony that she delivered mate- campaign Creek, rials to 201 Honey where appar- ently planning his 2002 reelection campaign.36 Ms. Gillson stated that she had dropped respondent off at 201 Honey 2005, Creek on a number of occasions before 36 Respondent also admitted that [at before 2002 he “intended to live Honey And, frankly, why working Creek]. that’s I was on that. I working Although, wasn’t on that to resell it.” this statement could be evidencing respondent’s Honey viewed as intent to live at 201 Creek at date, interpretation substantially some later such an undermined “significant” spent amount of time he there from 2000 until 2008. It disingenuous respondent, despite admitting being present would be for Honey frequent basis, simultaneously at 201 on Creek so a while providing an exclusive after-hours contact number at that same address during time, this to now claim that his intention to be domiciled there was directed toward some future date. Mich 634 Dissenting Opinion by Markman, J.

and that it known to thought “fairly she was well everyone he Because “one cannot where lives.”37 1 place, domiciled in more than one cannot intend to period remain for an extended of time in more than 1 Estate, 651-652, place,” Scheyer’s respon- 336 Mich at actions, light dent’s of the information he especially to the district court his provided concerning exclusive after-hours contact number at 201 Honey Creek from 2004, 2000 to indicate that for an “extended period (2000-2004), Honey time” he intended to remain at 201 Thus, Creek. respondent was domiciled outside of the 1st division before and his testimony contrary was not truthful. evidence, direct,

Given this circumstantial and both it is puzzling majority, how the after “[hjaving reviewed the entire record closely,” can now assert that it does oath,” “not conclude that lied under that it “agree[sj counsel that this is arrogance,” not case of but one of confusion.38Ante at Specifically, majority 652-654. respon- asserts that dent once more was “confused and could not remem- (un- ber a series of different telephone numbers 37 During police Honey- 2004 incident which were summoned to 201 Creek, respondent’s pet present the officers observed that cat at was property. To the extent that Justice believes was “con WEAVER required him, i.e., respondent “thought fused” about what law he long running [outside his] could live division as as he not reelection,” argument First, ante at is belied the record. there proposition, is no statute or caselaw even hints at such a and neither anything Justice nor has called relevant in this Weaver Second, regard importantly, to the attention of this Court. and more respondent’s prolonged living arrangement pre- efforts hide his post-2005 credibility respondent genu undermine the claim that inely long believed he could live outside his district so as he was not currently “running” respondent genuinely this, for reelection. If believed engage there would have been little need to in such an extensive effort to having residency avoid detected. Dissenting Opinion Maekman, J. In re recollection), specific til he later refreshed his dates and times, nearly years and events that occurred before Ante By suggesting he testified.” at 653-654. that re- initially was “confused” when the examiner spondent logs, confronted him with the telephone majority why any leaves this initial confusion had unanswered i.e., day testimony, on second impact respondent’s day presented telephone logs, he with the was after especially after admitted that he had re- logs by viewed those that time and had confirmed that belonged the numbers contained therein to him. In- deed, majority recognize seems to that respondent was not confused at regarding telephone logs that by stating only that he point confused “until he later refreshed his recollection ... .” at Ante 653. Nor majority does the so much as attempt explain how testimony, Ms. Gillson’s refutes directly respon- which dent’s claim that he did not live outside of his division prior bears relation to respondent’s alleged concerning “confusion” facts as to pertinent the tele- phone logs. Specifically, majority overlooks com- Ms. Gillson’s pletely testimony that respondent began forwarding Honey his calls to 201 Creek in the first place as of a deliberate effort part to avoid detection the JTC.

Additionally, by that did stating “respondent try not to deny the fact that he was in the 2nd at living Division time, because he thought he could live reelection,” as long running division as he was not majority ante at implies respondent was also confused as to he whether could live outside his By suggesting district. that respondent was “confused” in this regard, majority misunderstands what is at issue. Respondent’s testimony pertains false to his he did assertions that not live outside the district from when, fact, which he was elected before 2005 484 MICH634 Dissenting Opinion Markman, is, the evidence shows that he did. That little did lack of candor has to do with what the law him. did require not of most is the

Perhaps troubling majority’s willingness to respondent’s being overlook lack of candor as due to his “confusion,” alleged very when the nature of his responsibilities properly ascertaining facts, include ensur- ing accuracy testimony, and correcting inaccuracies may during that arise fact-finding proceedings. Signifi- cantly, respondent opportunity had the to do exactly that Court, but, instead, when he to this appealed he stated that “it should come as surprise no listed a [he] Honey Creek, number at 201 telephone place where he bench,” could found when not on the since “he spent significant Thus, amount of his free time” there. rather than supporting majority’s assertion that respondent confused, was his own statements to suggest this Court strongly contrary to the that he Indeed, was not confused. it is unbelievable that a judge respondent’s experience would allow initial confusion may have caused the JTC to conclude that he lied under oath persist to go uncorrected his appeal Finally, this Court. regardless of the majority’s claim that respondent was “confused” regarding numbers, telephone dates and times, events, and prior 653-654, ante at Ms. Gillson was not, and the substance testimony clear, of her power- ful, and damaging to respondent’s credibility.

Therefore, apparently on the sole grounds respon- “confusion,” dent’s alleged and with almost no explana- result, tion of it majority how reaches its summarily concludes that respondent has neither violated the Michi- gan provided Constitution nor testimony false under oath. process, the majority gives no credence to the following evidence, and thereby utters not a hint of disapproval, any sanction, and avoids for behavior that In re Dissenting Opinion by Markman, question integrity judi- calls into fundamental of our (a) ciary: nearly years respondent’s continuously spending “significant” periods of his after-hours time at (b) Creek; Honey admission that before Creek,” Honey 2002 he “intended to five at 201 which is (c) why “working property]”; [the he was on Ms. Gillson’s unequivocal “fairly statement it is well known to (d) lived”; everyone [respondent] where the fact that respondent’s pet living Honey cat was at 201 Creek before 2005, as noted in a from a 2004 police report stemming (e) incident; directing telephone logs police officers reach at 201 Creek as sole after- Honey (f) 2005; hours contact testimony Ms. Gillson’s before in the verifying telephone logs information that re- spondent’s sole after-hours contact before 2005 was 201 Creek; Honey (g) actually the fact that ran his respondent (h) campaign Honey Creek; 2002 reelection from 201 Ms. that, testimony shortly Gillson’s after was respondent vacating by confronted SCAO and accused of his office district, living purposefully outside his he misled SCAO his true regarding residency by manipulating his tele- (i) lines call phone through forwarding; telephone logs testimony that Ms. Gillson’s that support attempted having to avoid his true residence being de- by forwarding calls; tected his telephone (j) respondent’s response untruthful answer in to whether these telephone logs were ever his in forwarded from home the 1st division “[n]o, Honey of,” to 201 Creek of not that I if know as he were unaware of how his own telephone being calls were (k) directed; respondent’s initial false statement “I [living am too in the proper despite district]” admitting afterwards that he lived outside his district as of 2005 and thereafter when he was confronted two SCAO officials alleged who that he had moved outside of (1) district; his respondent’s false address that was pro- vided for a he applying gun permit when stated was 484 MICH634

Dissenting Opinion Markman, (m) law;” true and “under penalty “under oath” finding, personally taking respondent’s master’s after testimony, that he was “less than truthful” this testi- mony, and the JTC’s unanimous that respon- conclusion dent was in candor” in this same “lacking testimony. sum, respondent’s testimony because and actions Honey demonstrate that he was domiciled at 201 Creek 2005,1 before the JTC agree was being not truthful when giving testimony. sworn Thus, respondent’s statutory constitutional and viola- longer tions were of duration than he admitted— effectively constituting “pattern and practice” of necessarily means, misconduct —which as the JTC con- cluded, that he showed “a lack of candor and honesty,” which amounted to providing testimony” “false before the master. In vacating addition to his electoral district before and after this lack of independently candor justifies imposition of sanctions.

D. OTHER MISCONDUCT The remaining allegation misconduct con- cerns respondent’s inappropriate conduct directed to- ward female employees. court The JTC found that engaged three distinct acts of miscon- instance, duct. In the first he drew female breasts on a note that was attached to a court file. drawing made after a female clerk commented revealing on the dress of a woman appeared who in court. The second event concerned the of a drawing penis on a note that was attached to a court file. The third instance occurred during a retirement party for an at the 2nd employee Division courthouse. at party, While the commented on a university sweatshirt worn a female employed clerk in the 2nd Respondent Division. stated the awfully woman had “an small chest” for the Dissenting Opinion by In re Markman, sweatshirt, have college indicated on the and “should Alma,” to a smaller school like which would have gone fit her “small chest better.” acknowledged respon- counsel

Respondent’s dent’s conduct but contended that “inappropriate,” and “isolated” inci- spontaneous represented it was I 36-year agree dents from career. respondent’s counsel, and believe that conduct war- respondent’s rants, most, censure, public at consistent with the JTC, and the of the recommendations of the conclusions majority.

VI. BROWN FACTORS Haley, In In re 476 Mich at this Court stated: sanction, determining appropriate When the Court this punish judge, integrity the seeks not to but to maintain citizenry process protect of the and from corruption and abuse. conduct,

Based on the JTC has recom- office, mended that removed from recommendation to ordinarily which Court will defer if “adequately the JTC has the bases articulate[d] findings for its and demonstrate[d] there is a reasonable relationship findings between such and the recom- Brown, discipline.” mended 461 Mich at 1292.1 believe findings supported JTC’s recommendations are record, agree that respondent’s misconduct by my warrants removal from office. This is confirmed factors, Brown, review of the Brown Mich see at 1292-1293, as follows:39 totality “[w]hile [its] The JTC stated that conclusion based on circumstances, primarily alleged [it is]

of the motivated conduct [moving elected] I he was Count outside division from which Complaint by Respondent’s honesty lack of candor and with the 484 Mich Dissenting Opinion by Makkman, J.

(1) part pattern Misconduct that is practice of a is more serious than an isolated instance of misconduct. The JTC found that “weighs this factor heavily favor of a sanction,” severe because had engaged in “a long pattern of deceit” to hide that he was living outside the 1st Division from 2000 to 2008. I am in agreement with finding. Respondent moved outside his district in 2000 and continually changed his driver’s license and registration voter’s to other addresses Division, within the 1st engaged other actions that served no purpose other than to prevent detection. Further, during SCAO, a visit from respondent was accused of not living within the division from which he was elected. In response, falsely stated, he “I am too.” Respondent then changed his telephone number on two separate occasions Belding to his property, Road calls forwarded to Honey Creek, again to prevent his relocation outside his electoral district from coming light. It only was after respondent was confronted with a homestead exemption form, clearly which showed that he living was at 201 Honey Creek after 2005, that he finally admitted he living outside his division after 2005. These actions demonstrate pat- a tern and practice of conduct designed to I conceal. believe that the JTC correctly concluded that this factor weighs favor of a more severe sanction. I also conclude that respondent’s inappropriate drawings and comments, which consisted of three incidents over 36-year period, cannot be viewed as a part of the same pattern or practice. Therefore, this conduct does not increase the severity of the first Brown factor. Accordingly, master and the analyze Commission.” the JTC did not V(D) part misconduct set forth in in the context of the Brown factors. Instead, “standing it only stated that alone” such conduct would “merit public censure.” In re Opinion by Dissenting Markman, J. (2) usually Misconduct on the bench is more serious than the same misconduct off the bench. found that conduct correctly

The JTC bench, that a suggests occurred off the which less severe appropriate. sanction is

(3) prejudicial Misconduct to the actual admin- justice of is than misconduct is istration more serious only prejudicial appearance propriety. to the of conduct, that respondent’s JTC concluded which 2008, his title to office question jeop- calls into before every ardized that he has from the judgment imposed so, because, This is it without argues, bench. lawful authority judgments, judgments to render those are at being risk of I respectfully disagree invalidated.40 legal this in People conclusion for the reasons stated v Russell, 193, 196-197; 603, 347 Mich 79 NW2d 605 (1956). I nonetheless the JTC that this agree with factor in Although militates favor of a more severe sanction. 40 frivolous, Although argument this all I is not at believe this Court generally addressed, rejected, argument People has a similar in v (1956): Russell, 196-197; Mich 79 NW2d stop question We are not inclined to and examine the of magistrate authority whether such had to hold the officehe in fact occupied authority, and to which he had color of but content applying magistrate ourselves with the rule that if the was a de public officer in this matter in his act cannot be attacked this facto proceeding high ground passed upon. Upon nor title to the officebe here public policy prevent public failure of office,

justice, salutary public is in we follow rule while one law, cannot, exercising authority under thereof color of we office, except proceeding right pass in a direct to test his to the raised, upon question defen- here and besides it would avail nothing dant because there is no difference between the acts of de officers, jure public and de so far as the are interests facto adversely point is ruled to defendant in concerned. The Gildemeis- [(1920)].... Lindsay, 299; ter v 212 Mich 180 NW 633 Even creating judicial though the law officebe declared void the acts of upheld an officialthereunder will be as the acts of a de officer. facto quotation [Citations omitted.] marks 484 MICH Dissenting Opinion Markman, may decisions remain valid and binding decisions, I do legal believe that the propriety these legitimate decisions raises concerns. In I particular, losing believe that the in parties these decisions —who above all participants legal process must be genuinely persuaded legitimacy and integrity of process may this understandably feel embittered or — resentful concerning the decisions their own cases.

(4) implicate Misconduct that does not the actual ad- justice, appearance impropriety, ministration of or its less serious than misconduct that does.

For the factor, reasons set forth in the previous I believe conduct, that respondent’s at least in retrospect, did create an appearance of impropriety weighs in favor of a more severe sanction. it Because views factor largely duplicative of the considerations set out in the previous factor, concludes, the JTC and I agree, that this factor does not significantly assist determining an appropriate sanction.

(5) spontaneously Misconduct that occurs is less serious premeditated than misconduct that is or deliberated. I Although acknowledge respondent’s initial false in statements response to the unannounced visit from SCAO officials were made spontaneously, his conduct thereafter, including his continuing efforts to keep actual prior residence to 2005 being discovered, from demonstrates that he engaged prolonged effort to SCAO, mislead the master, JTC, the and this Court living about his arrangements. Therefore, I agree with the JTC’s conclusion that respondent’s actions to avoid detection were deliberate and ongoing, and warrant imposition of a more severe sanction.

(6) ability Misconduct that justice undermines the of the system to legal discover the truth of what occurred in a In re Dissenting Opinion by Markman, controversy, just case, or to reach the most result in such a merely delays is more serious than misconduct that such discovery.

The JTC concluded that lack of authority to hold impaired judicial system’s ability office I just respectfully disagree reach result. with the JTC regard to this factor and do not believe respondent’s conduct undermined the ability of justice system legal to discover the truth in disputes coming Indeed, before this Court. I do not believe his conduct affected the substantive determination of case or I controversy, assuming, do, that respondent during period controversy continued to act as a responsible judicial decision maker as his record sug- gests he has done for the past years. That his conduct may ability have undermined the of the public, and the systems Court, administrative of this to identify his misconduct in moving his domicile is a factor that appropriately more taken into account in the first and fifth factors.

(7) application Misconduct that unequal involves the justice race, color, on the basis of such considerations as background, gender, religion ethnic are more serious justice than disparage integrity breaches of that do not system citizenship. on the basis of a class of JTC, As concluded this factor does not apply to respondent’s conduct, and thus suggests that a more imposed. severe sanction should not be VII. SANCTIONS having factors, This Court promulgated Brown the JTC having case, evaluated them in this “proper deference” required Noecker, is now on our part. Mich (MARKMAN, J., at concurring). Of (2005) significance foremost determining appropriate 484 Mich 634

Dissenting by Opinion Markman, particular sanction for misconduct are the respondent’s and fifth Because in a respondent engaged first factors. SCAO, and effort to mislead prolonged deliberate this master, JTC, Court, as described opinion, including especially testifying falsely un- oath, I reasonably der believe the JTC has concluded should be removed from office. Although respondent’s years of honorable service bench, on the and his excellent reputation, evidenced both statements contained within the record and his reelection in 2008 after the people of his district had made at partially been least aware of the circumstances of the JTC investigation, constitute sub- stantial factors in determining favor sanction, in the proportionate analysis final these fac- not, my tors do judgment, outweigh his serious Noecker, misconduct in this case. See also As supra. “ dissent, Justice YOUNG offered in his miscon- ‘[s]ome duct, lying oath, such as under goes very core of ” (citation omitted). judicial duty[.]’ too, Post at 717 So I believe, does respondent’s conduct in knowingly va- cating “go very his district to the core of the represen- duty” tative in our system self-government. Accord- ingly, agree with Justice Young’s dissent in this I regard, as well as with the JTC’s unanimous recom- mendation, that respondent be removed from office.

VIII. CONCLUSION Pursuant to the JTC’s recommendation, unanimous I believe that respondent’s misconduct in this case war- rants that he In moving be removed from office. outside elected, district from which he vio- constitution, lated the law he violated the fundamen- tal bond with the of his people district established our system republican self-government, and he testified re Dissenting Opinion by Corrigan, J. falsely regard to these actions. For the reasons set forth this I would hold that opinion, respondent should now be removed from office. J., J.

Corrigan, Markman, concurred with CORRIGAN, J. I (dissenting). join Justice MARKMAN’s dissenting opinion all I A respects. join parts also and Young’s B of dissenting Justice opinion, including the discussion of respondent’s untruthful testimony and the conclusion that removal from office is the appropri- ate sanction for respondent’s lying under oath.

I write separately only observe that advances a far more compelling argument for a due than I process violation have seen in any prior Judicial (JTC) Tenure Commission case. The JTC executive direc- tor engaged unnecessarily harsh tactics he when con- fronted and surprise to obtain attempted his resignation by 9:00 a.m. the next day. Although the purported executive director to speak for the JTC during meeting with respondent, the record does not establish the JTC all approved of the executive director’s Moreover, tactics. an impartial master appointed this Court a hearing conducted and found the facts in this matter, the merely JTC’s decision is a recommendation to Court, and the ultimate disciplinary decision is ren- dered Thus, this Court after a de novo review. I conclude has not demonstrated an intol- erably high risk of required unfairness that is to establish process a due violation. Larkin, 35, 47; 1456; Withrow v 421 US 95 S Ct

L Ed 2d (1975), the United States Court Supreme held that the combination of investigative adjudica- and single tive functions in a entity necessarily does not violate process: due 484 Mich Dissenting Opinion by Corrigan, investigative contention that the combination of

The adjudicative necessarily an unconsti- functions creates adjudication has a risk of bias in administrative tutional carry. persuasion of It must much more difficult burden honesty integrity in presumption overcome a those that, serving adjudicators; and it must convince under a appraisal psychological human realistic tendencies and weakness, adjudicative conferring investigative powers poses a risk of actual bias or on the same individuals such prejudgment practice must forbidden if the guarantee process adequately implemented. of due is to be “very that it Supreme explained typical Court agencies to the members of administrative receive the results of investigations, approve filing charges or formal enforcement complaints instituting proceed- and then to in the ings, participate ensuing hearings. This mode of does not procedure violate the Adminis- Act, trate and it does not process Procedure violate due at Although law.” Id. 56. the combination of investi- gative adjudicative and functions does not itself violation, a due process may establish court nonethe- less determine “from the facts and circum- special present stances the case before it that the risk of is intolerably high.” unfairness Id. at 58. Rio, 665; (1977),

In In re Del Mich 256 NW2d 727 in holding this Court followed Withrow that the combi- of investigative, adjudicative, disciplinary nation and roles of the JTC did render incapable ensuring not it due process. emphasized This Court that the JTC’s role is limited to submitting its recommendations to this Court, what, and that this Court alone decides if any, disciplinary action should be taken. segregate

This Court has made a conscious effort to investigative adjudicative within the Commission the 1963, 932.10, specifically require functions. under We GCR independent appointed by that an master be this Court to In re Dissenting Opinion by Corrigan, preside adjudicative process over once the Commission complaint. files a formal It is this master who also makes findings upon of fact and conclusions of law which the Commission makes its recommendation and this Court ultimately Therefore, Court, bases its decision. like the Supreme Withrow, United supra, States Court in does investigative not believe that the combination of adjudicative roles in the Judicial Tenure Commission cre- process guarantees ates even a risk that due could be violated. [Id. 691.] at Chrzanowski,

In In re 465 Mich 486-487; 636 (2001), Withrow, Rio, NW2d 758 we followed Del other Michigan authorities to hold that the JTC’s procedures afforded sufficient due process protections, and we found no special facts or circumstances suggest an intolerably high risk of unfairness: first, procedures, pursuant

As to the to MCR 9.207(B)(3), preliminary investigation the JTC conducted a respondent’s alleged to determine whether conduct war- Second, ranted determining further action. after that suf- existed, ficient evidence of misconduct the JTC filed a complaint pursuant Third, formal to MCR 9.208. a master appointed, given, was hearing notice was and a was then 9.210(A) 9.211, afforded under MCR and MCR with the JTC’s serving prosecutor- executive director 9.201(6).. examiner under Finally, MCR .. the JTC’s con- Judge clusion that disciplined Chrzanowski should be ultimately just a recommendation to this Court that we are charged pursuant to review de deciding novo what discipline, any, appropriate. Withrow, if inAs the JTC’s investigative adjudicative procedures functionally and are separate; additionally, Withrow, as distinct from in which investigation and the decision were undertaken Examining Board, master, same Medical here the examiner, panel separate and the JTC are entities. If the board in process rights by Withrow did not violate due investigating, claims, adjudicating hardly and then it can argued procedures be process. that the JTC’s violated due Further, majority judges, a of the members JTC are 484 MICH634 Dissenting Opinion Corrigan, ultimately discipline recommend

and all the members who then that impartial. and We conclude are assumed to fair It had actual bias in the JTC’s decision. there was no novo, authority findings de and to review the master’s determined, reasonably preponderance the evi- dence, respondent had in fact made false statements. adequately separated the procedures find these JTC’s We investigative adjudicative functions. authorities, I do not find a due

On the basis of these very in this case. The JTC followed the process violation concluded in Del Rio and procedures same we process. were sufficient to ensure due Chrzanowski is, find the facts that appointed That a master was decision, formed the basis for the JTC’s the JTC’s Court, only decision was a recommendation this the ultimate on its de responsibility this Court bears what, any, to decide if is war- discipline novo review ranted.

Nonetheless, a question presented regarding close created special whether facts circumstances an intolerably high risk of unfairness. The JTC’s executive warning without in his director confronted chambers, armed accompanied by police escort who surreptitiously meeting. recorded executive alleging director with documents provided respondent misconduct and indicated that he would obtain respon- if he did not suspension resign by dent’s interim 9:00 day. presented a.m. the next The executive director also resignation already prepared letter that had been on stationery. own The executive direc- office represented speaking tor that he was on behalf of JTC, stating: offering you opportunity

The Commission is bring any quickly possible this matter as and not resolve shame, proceedings, peijury against you. accusations of immediately resign immediately. And means im- You can In re Dissenting Opinion by Corrigan, J. mediately. I right you have a letter sign. here can Commission give you has said that I can until tomorrow morning. prefer I to take the right letter with me now. When respondent stated that he would like to talk to someone “who knows this area much better I that [sic] do,” the executive director responded, “Yeah. So here’s a letter already prepared for you. If I have that letter — faxed to me my fax number is on that card that I just

gave you. If I have that letter faxed to my by office a.m., and I mean by 9 a.m.”

Respondent stated that he could not make a decision then, to which the executive director replied: filing Then I’ll petition be suspension for interim you tomorrow and will suspended be days. in a matter of complaint And a formal So, will issue with this. this will all ... up . You’re So, year. election this this is all going public to become no later than March. You’llbe off the bench before then. You have until morning tomorrow at 9. And I haven’t — even touched I haven’t even touched the sexual harass-

—ment you draw, little notes that you the comments mean, make to the staff. I we haven’t gotten even .... Oh yeah. gotten We haven’t even there. may You think that you because were born in 19 forty whatever it something other, you’re was— from enough generation an old get away can saying things, certain just but it’s not true. “ The executive director repeated later [i]f the Commission your has resignation letter of by tomorrow a.m., this matter will gone. Nobody will hear about it. You’ll have a retirement party. Everybody will 484 Mich 634 Opinion Dissenting Corrigan, stated, if director But, executive happy.” home

go “I almost welcome allegations, fought way out and easy take the youOr can the opportunity. resignation.” take into one to see a file referred asked

When the executive direc- drawings that alleged sexual stated, “I’m not executive director tor the provided, I’m not you. interview with any type do here now to asked else.” When explain anything here to allega- the basis for the formed what other evidence stated: tions, executive director the provided Sir, the court rules. The rules are I’ve followed complied the court following. in 9.200 and We’ve you give this to personally [sic] to to rules. I’ve come here embarrassing here situations. I’ve come perhaps avoid through having drag your the perhaps to name to avoid hearing going a formal mud to come out at with what retire give you opportunity to obviate all that and to you. the matter with quietly. I’m not here to discuss stated, “If this all push later we The executive director why you left be- going to know way, everybody’s the bench.” thrown off you got cause reflect, the executive director’s excerpts As the above harsh. The executive direc- unnecessarily tactics were in his ambushed chambers essentially tor resigna- immediate demanded his allegations, with the refused to answer day, the next tion 9:00 a.m. the bases for the regarding questions respondent’s allegations. however, the JTC not, reflect

The record does the executive Although all these tactics. approved itself giving that “the Commission” was director represented resign, morning a.m. the next until 9:00 approved the JTC indicate whether the record does not confrontation, the refusal nature of the surprise In re Dissenting Opinion Corrigan, answer respondent’s questions, abrasive disre- gard of request for more talk time to someone.

I am extremely concerned for grounds about JTC’s decision to exclude from the record the audio recording of executive director’s confrontation with respondent, gives possible because it rise ato inference Respondent collaboration. submitted recording as one of several attachments to his brief in support of his objections to the report. granted master’s The JTC the examiner’s motion to strike the attachments. The JTC chairperson explained the basis that decision: presentation of additional con- evidence after the public hearing governed by

clusion [sic] of a MCR 9.218. provides may That rule the Commission order hearing days’ process with at least 14 notice. That not was Accordingly, [sic] found this case. the motion to strike granted. hereby The court rule 9.218, cited the chairperson, MCR provides: may hearing

The commission order a before or the itself taking master the any for of additional evidence at time complaint while pending the is it. before The order must set place hearing the time and of and indicate the matters about copy which evidence to be taken. A of order the must respondent days be sent to the 14 at least the before hearing.

Regardless of striking whether the of the audio recording 9.218, was a correct decision under MCR I have no real evidentiary basis to conclu- question the sion that the JTC decided the on of motion the basis its stated than rationale rather because of any effort to conceal the audio recording.

Therefore, I conclude that the executive director’s punitive do not special tactics alone rise to level of 484 MICH Opinion Dissenting Young, J. an intolerably that would create or circumstances

facts The record not show that of unfairness. does high risk or prejudgment, members exhibited bias the JTC presumption overcome the of has not and adjudicators. serving and in those honesty integrity Moreover, master Withrow, impartial 47. supra at hearing and by this Court conducted appointed facts, merely the JTC’s decision was found the relevant Court, Court, it is this recommendation to this and review, that the de now renders decision after novo discipline, any, if should regarding appropriate Chrzanowski, Rio, Del supra. imposed. supra; Accordingly, my regarding serious concerns despite his confrontation during director’s behavior executive I am not convinced that has respondent, rights. his due process a violation of established V(A) (C) I and join parts of (dissenting). YOUNG, Like Justice opinion. Justice MARKMAN’s MARKMAN (JTC), I conclude that the Judicial Tenure Commission proceedings lied the JTC during provides misconduct alone sufficient basis re- him I write because I moving separately from office.1 authority the JTC has the decline address whether if respondent vacated his office violation of determine during § art Const the course because disciplinary proceedings respondent admitted first changed residence from the primary that he from 2005 to Feb- August the second election division admission that he ruary 2008. Given I am aware of the exhibited the executive director behavior However, January propriety Tenure Commission 2008. Judicial Commission, Attorney his actions is best addressed Grievance Rather, today. sole issue before Court is is not before Court judicial respondent’s actions constitute misconduct. whether In re Dissenting Opinion by Young, division,2 moved outside his I election believe that a formal determination of the power JTC’s to decide such a question independent respondent’s admission is and unnecessary in this case do not reach a conclusion in the question debated Justices MARKMAN in respective opinions. their WEAVER

A. LIED OATH RESPONDENT UNDER fully agree I analysis Justice MARKMAN’s V(A) (C) in parts record regarding respondent’s testimony. untruthful startling What is that majority accepts question without respondent’s prof justification fered for vacating his office—that respon “thought dent he could live in second [the election] division as as he was not long running for reelection.”3 justification true, Were one expected would have live respondent openly notoriously at his legal residence, wherever that residence happened he However, located within the 63rd District. review of the record reveals quite opposite respondent’s actions — during the period completely relevant were inconsistent with one honestly who believed he freely that could live his territory. outside election

Respondent acknowledged that he his legal moved I believe that admission he establishes that violated 6, § art Const 20. Because law forbids abandonment of office office, while the office holder continues function in it is sanction- any judge able serving misconduct for to continue in an office that However, light my he has vacated. conclusion lied oath, removal, under and that this misconduct alone warrants his I do necessary appropriate not believe it to address the sanction either the sexually inappropriate abandonment of office violation or the misconduct the JTC also concluded committed. However, Ante at yet 653. in his asserted brief different justification brief, claiming “only required his that he was to live within the district in which the court sits” and could principal “make division within that district." (Emphasis residence in original.) 484 634 Mich

712 by Dissenting Opinion Young, J. in 2005. division of the 1st election residence out he knew acknowledged that respondent Significantly, after change his address by law to required that he was However, changed never he moved. to the reflect move driver’s license to his address on his Additionally, acknowl- despite second election division.4 so, do legally required that he was edging from information registration his voter changed never fact, respon- division. In the first to the second election he still though to vote as fraudulently dent continued lived in the 1st election division.5 1st elec-

Moreover, to list his respondent continued his address” on address his “residential tion division (CCW).6 carry weapon a concealed application 2007 egregious because particularly This latter act is an affidavit that states: application CCW is and, you sign following agree, if Read the statements at with the clerk. below the time of submission secretary “immediately notify requires person to The law a address,” do is his failure to so state of or her new residence 257.315(1) (3) (emphasis by punishable infraction. a civil MCL added). place Voting associated with one’s a district other than that 168.932a(d). Nevertheless, respon prohibited law. residence is MCL in a district he did not claimed that he was entitled to vote where dent “paid a house in first election division and reside because he owned However, any voting provides, and citizen the taxes.” as our constitution knows, “require qualified meeting in this state well elector is residence,” by paying simply taxes. art of local not Const ments Moreover, “place at § is 168.11 as the 1. “residence” defined at MCL personal person habitually sleeps, keeps her effects and a his or which ” fraudulently regular lodging. place At voted has a the time division, respondent property in the first testified his in the election buy “guy occupied leased to a wants to first election division was who voting in his former electoral it.” I find that continued legal entirely changed admitting he after had residence district credibility and defense. undermines his falsehood, prohibited by being MCL this act is law. In addition to 28.425b(3). re Dissenting Opinion Young, J. I application understand that this is executed under oath penalty and swear or affirm under lawof my above true answers are and correct to the best of knowledge. intentionally I making understand that a false felony punishable by imprisonment statement for not years $2500, more than 4 a fine of not more than or both. Consequently, by signing in- application with the residence, correct address of respondent again lied this, under oath. Despite respondent’s defense is that he did application not read the before This signing it. has never been a valid defense to false on a swearing an document requiring attestation of truthfulness.7 majority’s acceptance excuse is as shameful as respondent’s attempt to minimize the consequence of dishonesty. his Wejudges demand more ordinary citizens who us in appear before court. Thus, it is hard to understand the “free pass” the majority has given a fellow member of the who judiciary ought to be held at to least the standard of we honesty require of others.

Respondent’s intentional gov- violation of the laws erning voting, licenses, driver’s and CCW are licensing independently troubling, inadvertent, not and form a pattern of intentional misdirection. If respondent truly believed that he free was to live in the second election division, then would why great he take such to pains make it appear though legal his residence in was still the 1st election I division? think the answer is clear. 7 fact, “I cognizable the read it” didn’t is not a defense defense for Michigan, written document requiring in much less a document Associates, attestation See Otto Baedeker & v Inc of truthfulness. Bank, 435; (1932); Hamtramck State 257 Mich 249 NW Int’l Transportation Bylenga, 236; (1931); Ass’n v 254 Mich 236 NW 771 Stebbins, 147; (1926); Collier v Johnson, 236 Mich 210 NW 264 Gardner v (1926). 258, 236 Mich 210 NW 295 MICH Opinion Dissenting Young, his true residence took to conceal

Respondent pains not in living know he was had to that he reason because filed a respondent After election division. proper the election division for his second exemption homestead increasingly impossible for 2005, it home in became legal the his regarding to maintain lie his election division. being outside residence Additionally, testimony indicated between the provided court the end of 2004 2000 and in property number his telephone a to staff with duty after-hours court’s second election division 2005, However, in beginning January log.8 in the 1st telephone property a number provided division, indicated that calls testimony but the election to his address were placed to this number forwarded in January Beginning division. second election testimony indicated that the after-hours tele- number changed telephone number phone was respondent “was election division because second he thought his fax machine and having problems phone forwarding call from the other was However, in July with the fax machine.” problem providing court staff with respondent again reverted telephone again 1st number election division 2nd election division. to his telephone forwarded testimony respondent provided the indicated that While administrator, the at the numbers to court telephone telephone claimed that the hearing respondent the to be “didn’t from and claimed [him]” numbers come number, despite recognize telephone unable to his own provided number was to telephone the fact that eighteen mere months before court administrator a intervals, provided logs, prepared law enforce in three-month The judiciary contacting District after a member of the 63rd ment a means regular hours. business In re SERVAAS Dissenting Opinion by Young, J. if had calls hearing.9 When asked he ever had forwarded another, respondent evasively from one address to an- “no, I I reject swered not that know of.” the ridiculous respondent recognize notion that could not his own did telephone number and not “know” whether he had calls one to the telephone property forwarded from truly if fundamentally, respondent other. More believed legally that he was free to live in the second election office, division and maintain his there would calls at all. been telephone have no need forward his Thus, I completely agree with Justice Markman that the that respondent repeatedly record establishes lied un- der The majority incredulously oath. claims that “re- nothing did hide the fact” that spondent respondent 2005; resided his second election division home from however, plain facts contained the record indicate otherwise.10 deception place Because maintain of his need to about the of his legal residence, things problematic even small became extraordinarily testimony

to admit. He was evasive in before following example testimony: I offer JTC. evasive

Q: July, August, September So it’s 2006. Right.

A: Q: phone With a number that’s listed there that ends in a 30 you’ve you recognize phone read. Do number one your phone home numbers?

A: No.

Q: phone You don’t know what number is? — — isn’t, saying A: I I I’m I don’t mean not it but and I don’t there, got give anybody. know how it because I didn’t it majority cites as conclusive evidence the fact that telephone proving nothing was listed in the local book as he “did to hide However, the fact” that he resided in the second election division. listing telephone merely in the book indicates that had an 484 Mich 634

716 Dissenting Opinion by Young, J. b. SANCTION determined that the record Having fully supports oath, only lied under I believe that the 11 I sanction is removal from office. As noted appropriate in In re Noecker:12 purpose proceed-

The of Judicial Tenure Commission ings punishment judge, the the is not but to maintain the integrity judicial process protect citizenry of the and to the such, corruption primary from and As abuse. this Court’s determining appropriate concern in the sanction is to dignity impartiality restore and maintain the judiciary protect public. and to judicial system long recognized sanctity

Our has importance act, significant of the oath. An oath is a establishing promises that the oath taker to be truthful. As telephone listing address and number in the A second election division. telephone legal book does not indicate one’s residence. One’s voter registration and, legal and driver’s license are indicative of residence stated, support majority’s these indicia do not or the position. forget respondent affirmatively Let us not attested to application. incorrect residence address on 2007 CCW license 11 generally judge This Court has removed a from office when it has determined, part, judge provided been in whole or in that a has false testimony proceedings. Ryman, or evidence in JTC In See re 394 Mich 637, 232 (1975); Loyd, 514; (1986); 178 424 NW2d re Mich 384 NW2d 9 (1998) Ferrara, 350, 372; (“Judges, In re 458 Mich 582 NW2d 817 occupying system justice, preserve, the watchtower of our should if not uplift, truth, trample shady the standard of not it underfoot or hide in its why precisely judges exemplars respectful, recesses. This is should be forthright, conduct.”); Noecker, appropriate 1; In re 472 Mich (2005); Nettles-Nickerson, 321; NW2d 440 In re 481 Mich 750 NW2d 560 (2008). only exception Thompson, I can discern is In re 470 Mich (2004), plea agreement where the JTC and reached a 90-day suspension, complaint allegation and the included an respondent “demonstrated a lack of candor” before the JTC. (2005). 472 Mich 691 NW2d 440 In re SERVAAS Dissenting Opinion by Young, J. point justice,” judge the “focal of the administration of public responsibility entrusted and has to seek justice by evaluating testimony given truth and under judge oath, oath. When a lies under he or she has failed to justice internalize one of the central standards of judgment becomes [S]ome sit others. .. . unfit of misconduct, oath, lying goes very such as under to the core judicial duty and demonstrates the lack character person judicial privilege [13] such a to be entrusted with reasons, these I adopt For would the recommenda- the JTC and tion of remove from office. added). (emphasis Id. at 16-17 notes could he Weaver’s however, adjudicate that this Court rather than the circuit court should judge felony simply convict because the unresolved predicate during judicial disciplinary proceed issue arose course of a ing.” again, despite express Ante at 645 n 24. Once statement contrary, judge in this instance that “this Court does not convict a of a 484 MICH634 Dissenting Opinion by Markman, having felony actually to find that a occurred before the judge JTC can recommend that be removed for felony a not committing does address issue now 30(2) 6, § before this Court. Article of the Michigan explicitly sitting judge Constitution allows a to be removed from office if he is found of a guilty felony. This specifically is one of several enumerated situations in the constitution that effectively establish a substituted i.e., Court, process, process allowing the JTC and this something accompli” view without requir- “fait ing an individualized fact-finding process determine judge engaged that a has Kapcia, misconduct.18 Notably, however, Mich at 313. quo an action for war-

Notes

as Justice WEAVER notes situa- tion now before this Court because of only reelection in available to address avenue conduct past very type disciplinary is of proceed- ing that the JTC has initiated a consequence, here. As possess authority, this Court does derived from the constitution, misconduct, to sanction for his findings based on the JTC’s of misconduct and recom- discipline.20 mendation for Finally, Justice Weaver’s misunderstanding quo generate warranto would consequences. several notable matter, As an initial Justice WEAVER concludes that the JTC is precluded bringing from a disciplinary action against the absence of an action for quo is, warranto. That this Court would not be entitled to accept the JTC’s disciplinary recommendation for ac- tion based on a judge’s misconduct that also called into disciplinary arising action from misconduct that undermined one’s title to dispute officeremains available after the title has been resolved or rendered moot. my argument Justice complaint Weaver claims that “conflates the complaints concerning vacation of inappropriate office with the other arguments, sexual conduct.” Ante at

[639] n 9. As with several her other opinion, utterly see notes

[9] and

[16] of this this has no basis in the actual language opinion. quite ordinary reader, of this As should be clear to the quo opinion only the discussion of warranto in this relevant to whether vacating can be sanctioned for his “misconduct” of By very terms, district from which he was elected. its the discussion of quo alleged warranto has no relevance to other incident of miscon duct in this case. regard precision language The lack of is further reflected in rejection Justice Weaver’s characterization that I describe her of the “unbelievable,” JTC’s only recommendations as ante at a word I use entirely in an different context with reference to certain actions of the respondent. My analysis at opinion actual of Justice Weaver’s 694. Infra legally constitutionally unsound, is that it is confused in its under- standing record, by logical consequences, and unconcerned not that it is “unbelievable.”

Case Details

Case Name: In Re Servaas

Court Name: Michigan Supreme Court

Date Published: Jul 31, 2009

Citation: 774 N.W.2d 46

Docket Number: Docket 137633

Court Abbreviation: Mich.