In the Matter of Probert

411 Mich THE OF PROBERT IN MATTER 1). (Calendar 2, Argued No. October No. 61331. Docket Decided June 1981. Probert, V. who Commission found Charles The Judicial Tenure Municipal Wyoming his in the Court until been a had judicial guilty of of office ended on December term permanently enjoined that he be misconduct and recommended begun holding judicial while The were office. expired. judge, completed term after his was a but were Probert argues judicial then. that the has office since He He held jurisdiction the matter Tenure Commission lacked Judicial longer is because he no holds that the issue moot and office. Ryan, joined by opinion Justice Chief Justice Cole- In an Williams, Fitzgerald, Moody, Su- and man and Justices preme Court held: specific of the Judicial Tenure Com- recommendations implemented this case because Probert mission cannot expressly presently the Court is not not a and because However, permanent injunction. empowered to enter a he Court, beyond disciplinary reach of the and he is conditionally suspended years; publicly for five censured time, during regain he will he office never- should exercising theless be debarred from that office. question argues 1. that once a leaves office Probert judicial discipline jurisdiction is rendered moot Implicit him Tenure Commission over is lost. Judicial argument is the view that the constitution authorizes imposition recommendation and for incumbent Indeed, judges only. does it is difficult to conceive how one who retired, suspended, not hold could be removed office Nevertheless, at least three from office. on suspensions conditional that would have fore- occasions issued References for Points in Headnotes 2d, 18-20,50, Judges 46 Am Jur §§ [1-27] 2d, seq., Employees 177 et 222 et §§ 63 Am Jur Public Officers seq. suspend judge. 53 ALR3d 882. Power of court to remove or Matter any judicial disciplined closed the exercise to which person might appointed been have elected or in the future. therefore, suspension, appropriately Such a conditional is not Further, against judges only. taken incumbent one who does judicial light office hold could be censured. In the of purposes discipline, judicial judge of of the censure a former may expedient. entirely be arises, 2. When a of case misconduct in office the Court is obliged judgment concerning respondent’s the to make a fitness misconduct, light judge to be a in the of his and must thus respond to individual the considerations. But decision must also responsive significant consideration, be to a institutional the preservation integrity system. judicial the of of the When a judge charged judicial with misconduct removes himself from notoriety ignominy disciplinary pro- office to avoid the of sanctions, ceedings possibility censure, deserved, and the of if may preservation integrity be of essential the of the alternative, silence, system the because be con- public strued as an act the of condonation. possibilities suspen- 3. Because the of censure and conditional remain, discipline sion a case become moot does not the instant judge granted; the office. can still leaves Effective relief be a rule, therefore, controversy exists. of a still Establishment of proceedings of immediate termination of the Judicial Tenure judge Commission a is both when leaves office unwarranted and good unwise. There is reason for to continue until completed, notwithstanding judge’s resignation the or to failure filing complaint. the re-elected after of a policy declining 4. The Tenure Judicial Commission’s to respondent’s judicial act a further after termination of doubt, developed, office no from its estimation of the most incompe- effective allocation of its an unfit resources. Once separated greatest power, danger tent is from passed, but the Court should will not not and transform the fast, policy preclude into a inflexible rule of law would contrary commission, judg- when the action its considered discretion, Furthermore, appropriate. ment and deems it to power hold that the Court has no a to former power integrity would mean that the vindicate Court’s to judiciary negated wholly could be irrelevant occurrences pending, expiration judge’s while a case is such of the as the resignation, length term of his or the of time the Court takes to decide the case. types expressly The four that the constitution empowers appear impose comprehend a the Court do not Mich However, separate a injunction. also has permanent Court power superintending It is an control. extraor- constitutional hampered by specific rules or means dinary power which is exercise, power with the it invests Court its for unfit that a determine exercising judicial power prevent in this state for as him Court, is, judicially long judgment of the unfit. The in the as he control, constitution, power superintending granting judge. prohibits power remove explicitly of that a the use cognate prohibition prohibi- specific does not have But permanent injunction against in this recommended tion "permanent permanent injunction truly form case. If a removal”, require consistency prospective that the then would upon provision to "remove” which authorizes Judicial Commission also Tenure the recommendation permanent permits injunction; but that is the Court to enter a clearly not the case. superintending to remove does not lack of 6. The unavoidably superintending lack of entail a similar deprives judge of enjoin permanently. a more Removal interest, existing judgeship, significant tangible and the than permanent injunction, impinged upon a the interest the problematic potentiality attaining judgeship, is more of a which However, might impli- permanent injunction a and uncertain. right of to choose those who would hold cate the the voters suffrage judicial is the office. That bestowed constitution. power superintending should con- of control be The Court’s strued, provi- possible, with other constitutional if to harmonize Therefore, comprehend power enjoin it to a does not the sions. holding judicial person permanently office. from Probert judicial longer of the holds office.The recommendation Judicial moot, officeis and Tenure Commission that he be removed from enjoined permanently from the recommendation that he be Nevertheless, holding judicial be the office cannot carried out. possibilities suspension of censure and conditional remain. 7. The Judicial Tenure Commission found that Probert habit- canons, statutes, rules, willfully disregarded ually and court jus- responsibilities ethical of and other the administration tice; improperly judicial to benefit his friends used his office employees; engaged giving impro- and court in conduct rise to appearance gross priety impropriety; and the of and a exhibited judicial temperament impartiality. lack of and A of the review findings amply shows that of record the the commission are supported, objection filed no to the and Probert has master’s actions, report upon they which are based. Probert’s taken as In the Matter of Probert whole, clearly prejudicial the constitute conduct administra- justice, persistent tion of and misconduct failure to perform duties, judicial proscribed by all constitution the and Certainly egregious the General Court of 1963. such Rules judicial imposition perfidy misconduct and warrant the of disciplinary ignore acts, measures. The Court cannot Probert’s important integrity because is that the of the preserved judiciary appearance integrity be the of that but that publicly five-year be and a maintained. Probert censured suspension pay imposed. regain conditional without Should he time, judicial during be barred Probert will exercising power prerogatives the of the officeat least until expiration suspension. Levin, joined by Kavanagh, dissenting, Justice Justice would empowered hold the Judicial Tenure Commission is not of, discipline may Supreme recommend nor Court on the on, impose discipline person commission’s recommendation longer judicial who no holds office. provisions 1. The Constitution of 1963 carried forward granting Supreme powers earlier constitutions broad control, superintending expressly but denied Court the judges. remove An amendment to the article adopted in 1968 established Judicial Tenure Commission gave discipline Court the on the recommendation the commission. The function the com- persons charged mission is to monitor the conduct of with the justice disciplinary administration recommend action Supreme provision Court. The focus of the constitutional establishing persons commission with tenure; disciplinary actions which the commission censure, suspension, retirement, or removal recommend — judge”. —are stated actions of "a Accord- ingly, disciplinary against person action cannot be exerted who has left office. Suspension, separa- retirement and removal all involve the judicial authority tion of a from whatever or office he suspension imposed by has. The conditional the Court would again become effective if Probert attains period during suspension; present of conditional has no it effect. Censure was to intended be the least severe form of discipline, where, discipli- reserved for situations while some indicated, nary expected action is to is correct his reprobation. a conduct with minimum It skews constitu- prescribed tionally discipline scheme to construe censure as discipline imposed may person a which be on a determined to 411 Mich judge. who serving Nor can a as a to continue be unfit expected to correct his con- longer judicial office be holds no Further, disciplines in the alternative are listed duct. contemplated severity gradation that it was indicates their according discipline made would be choice of that a impose censure severity both The decision of the misconduct. suspension is thus at for the same misconduct and conditional apparent of the constitution. intent odds with the jurisdiction general is obtained over is that once 3. The rule change party’s by a parties not be defeated will residence, govern status, here. rule does not but that such as autho- the constitution to act is defeated because imposition for in- rizes the recommendation judges only. which defeats It is that lack of cumbent jurisdiction. proceedings against Continuing Probert would serve 4. him, example punish an purpose or make other than public These are not functions of of his misdeeds. inform the merely proceedings, but conse- Commission Judicial Tenure Proceedings quences disciplinary which should function. of the simply to effect should not be continued otherwise terminate prejudi- guilty of conduct If Probert is to be found those ends. finding justice and that is to be the the administration of cial to Attorney disciplinary Commis- action Grievance basis of sion, attorney finding context of be made in the should proceedings disciplinary focus can be his conduct as so that the judicial office. A and not his fitness for a member of the bar taking prior subject for conduct to his regain during previous tenure. Were Probert office or again subject be before he would and, appropriate, discipline if the Judicial Tenure Commission might made in these be recommended based on the record proceedings. resigned possibility that a or defeated 5. There remains the Supreme assigned judicial duties will Judges pursuant powers are to its under the constitution. discretion; they assigned have no exercise of the Court’s except discharge judicial right as and no functions tenure Judicial Communication with the authorized Court. step making an one Tenure Commission should be but confidentiality assignment. provides for The court rule which complaint provides is filed also commission records before assigned information about the commission release judges to the State Court Administrator. public, judges, like education of other Education the Matter merely function, consequence disciplinary a of not the an end itself, pursued disciplinary to be after the function has power ceased. If the Judicial Tenure Commission has the to against longer proceedings person judge, a a continue who is no might proceedings initiate for misconduct which has light judge might come to since the left or it feel obliged power protect employ public to the not to but to the appease public by unearthing the clamor caused the of miscon- duct. The resources of the commission dedicated should be to purpose preventing essential of the constitutional the abuse of power by those who it. exercise power superintending separate 7. The of control is and dis- disciplinary power from tinct the set forth in the constitution. authority power superintending The has no under its permanently enjoin person holding judicial control a power temporarily suspend judge office. To construe the a power from the exercise in the exercise of the superintending equivalent control as the of what was ex- constitution, pressly power withheld to remove from itself, betray placed the office would be to trust convention, Court’s restraint the constitutional and would understanding granted. power violate on which it was The again exercising to forbid the electorate from ever the franchise particular person, greater power in favor of a a much than the granted power suspend judge, remove or a has not been expressly granted others, in this state it has as been in some and should not be inferred. The distinction between superintending authority control and the by using. should not be blurred the Judicial Tenure superintending Commission to fulfill the Court’s duties of con- by empowering investigate trol or the commission to recommend how the Court should exercise en- the discretion to it. trusted cases, suspended 8. judges In some the Court has incumbent periods longer However, than their terms office. there is no indication that those cases considered whether the constitu- imposition suspension tion authorizes of a no which has imme- question diate effect. The case is not how much is appropriate but whether there is at all. opinion of the Court asserts that to end policy argu- when leaves office would be unwise. Such properly ments cannot be the sole basis for a construction of say the constitution unless the Court can without a doubt that meaning language the normal is so absurd unreason- preclude absurd, having able as to its been intended. It 411 Mich disciplinary proceed- even unwise to terminate unreasonable or purpose ings Judicial Tenure Com- the essential where bench, achieved mission, keeping has been unfit off simply leaving office. judicial power against who has 10. Action public’s promote that those who confidence abuse does not power judicial not abuse it. The ordered will do have purpose punishment; primary by not to its is the Court authority prevent judicial to react to abuse of but the abuse procedures for disci- the occurred. The constitutional proclaim displeasure, employed pline should not be of public justified, judicial The interest with misconduct. however maintaining justice and the interest in the administration of by public good judiciary the further the name of are served judicial Clearly, airings allegations proofs of misconduct. of jurisdictional judgeship the is terminated fundamental once the to exist. element ceases prejudice complaint dismissed without The should be ability the Judicial Tenure Commission disci- of recommend regain judicial pline on the record should Probert ever based office. Opinion the Court of Judges Discipline — — 1. Misconduct. judicial discipline Supreme obliged a Court case respond considerations and also an institutional to individual consideration, preservation integrity the of the of the 932). (Const 1963, 6, 30; 1963, system art GCR § Judges Judges Discipline — — — Misconduct. 2. Former deserved, may entirely judge, a if be The censure of former expedient preservation integrity of and essential to the of silence, alternative, system because (Const 1963, public construed as an act condonation 932). 6, 1963, 30; art GCR § Judges Discipline Judges — — — 3. Former Mootness. judicial discipline A case not become moot the instant does possibilities leaves because censure charged suspension mis- conditional remain after with (Const 1963, 6, steps or art conduct down fails be re-elected 932). 30; 1963, GCR § Judges Discipline Judges — — — 4. Judicial Tenure Former Commission. judge charged have A with misconduct should not the Matter simply leaving investigation by office to short-circuit him, proceed- against leaving the

Judicial Tenure Commission (Const 1963, ings subject incomplete to the abrasion time 932). 6, 1963, 30; art § GCR Judges Judges — Discipline — — 5. Former Judicial Tenure Commission. good Tenure

There is reason Judicial notwithstanding completed, to continue until Commission filing judge’s resignation be re-elected after the failure to (Const 1963, 6, 30; complaint GCR art misconduct 932). 1963, Discipline Judges — — — Judges Judicial Tenure 6. Former Commission. policy to act Tenure Commission that it declines A the Judicial respondent’s judicial office further the termination of a after re-elected, resignation, not be to be or death should failure fast, rule of that would into a inflexible law transformed appro- preclude contrary the commission deems action when 932). (Const 30; priate art GCR Judges Discipline Judges — — — Former Misconduct. Supreme hold has no To judge mean that the former after he has left office would integrity power judiciary of could to vindicate the the Court’s occurrences, expi- negated wholly by as the be irrelevant such office, judge’s resignation, the his ration of the term of (Const 1963, length the of time the Court takes to decide case 932). 6, 1963, 30; art § GCR — — Superintending Courts. 8. Control Constitutional Law power superintending constitution The of control conferred the Supreme power separate on the from its other is a being powers original jurisdiction appeal, purpose of its keep the and to ensure the courts themselves within bounds (Const 6, 1963, working judicial system art harmonious the §4). Judges Superintending Discipline — — —

9. Control Constitu- — tional Courts. Law power superintending invests the The constitutional control Supreme person power the that a Court with determine exercising prevent judicial unfit for office and to him from is, judicial long judgment power in this state as he in the for as constitution, Court, unfit, though judicially of the even 411 Mich 210 control, superintending explicitly prohib-

granting power (Const 4). 1963, 6, judge a from art its its use to remove office § Discipline Judges Superintending — — — 10. Control Permanent — Removal Elective Office. superintending give control does not constitutional Supreme enjoin person permanently Court the a holding judicial permanent injunction a office because might implicate right of the voters to choose those who prevent would electorate from hold office and ever again exercising suffrage particu- its in favor of a constitutional 16). (Const 1963, 2, 1; 6, 2, 4, 8, 12, person lar art art § §§ Judges Discipline — — 11. Misconduct. which, whole, Actions taken aas constitute conduct clearly prejudicial justice, to the administration of misconduct duties, persistent perform judicial failure to all proscribed by the constitution and the General Court Rules of 1963, certainly imposition disciplinary warrant the measures (Const 932.4). 1963, 6, 30; 1963, art GCR § — Judges Discipline. 12. important integrity judiciary

It is preserved appearance integrity but that the of that be main- tained, consequently Supreme ignore Court cannot misconduct, though even has left officesince.

Dissenting Opinion Levin, J.

See headnote 10. — — Judges Discipline

13. Constitutional Law. empowered The Judicial Tenure Commission is not to recommend of, discipline Court, Supreme nor on the commissions recommendation, impose on, longer who no (Const 932). 6, 30; 1963, holds art GCR Judges Discipline — — Censure. Censure was intended to be the least severe form of judge, where, disciplinary reserved for situations while some indicated, expected action is to correct his conduct (Const 1963, reprobation 30; with a minimum of art GCR 932). Judges Discipline — — 15. Censure. constitutionally prescribed discipline

It skews the scheme of judges discipline to construe censure as a which be im- In the Matter serving person posed to be as on a determined unñt to continue 932). (Const 1963, 1963, 6, §30; GCR a art Judges Discipline — — 16. Censure. Supreme may impose disciplines on the The which guilty by are the constitution in who are of misconduct listed alternative, gradation severity indicates that it their the contemplated discipline choice of would be made that a was misconduct; according severity a decision the of the suspension impose for censure conditional Court to both apparent with intent of at odds the same misconduct is 932). (Const 6, 30; 1963, 1963, art GCR constitution Judges. Discipline Judges — — Former 17. making example punishing judge, an a former The interests him, informing public of his are not functions or misdeeds Commission and do not warrant continu- of the Judicial Tenure longer proceedings against a of the who holds ation (Const 932). 6, 30; art GCR Attorney — Judges Discipline — — Grievance Commission 18. Tenure Commission. Judicial investigate Attorney Commission has The Grievance discipline lawyer for a which and recommend conduct subject proceedings in the Judicial Tenure Commis- been sion, the tenure record of commission is hearing Attorney admissible into evidence at of the Griev- however, Commission; Attorney Grievance Commis- ance discipline ñnd itself and sion must the facts recommend appropriate thinks even where conduct which is the basis of (GCR 965). is the same — Judges Discipline Attorney — — 19. Grievance Commission Judicial Tenure Commission. Attorney Commission Judicial Grievance and the Tenure operate independently protect distinct Commission interests standards; professional judge’s and maintain distinct a conduct might prejudicial justice to the administration of while be, lawyer might person’s identical not and a conduct might judi- temperament or unñt to hold conduct render him substantially affecting cial oíñce his ñtness be a while (GCR1963, 932, seq.). 950 et member State Bar Judges Discipline — — Time Misconduct. taking subject prior to his A conduct tenure; during previous if who accused of oíñce disciplinary hold ceases to office before misconduct 411 Mich 210 regains judicial proceedings course and then run their may inquiry the Judicial Tenure Commission reactivate the Supreme judge’s may conduct and recommend that the into the (GCR 932). 1963, impose discipline for that conduct Judges. Judges Assignment — — 21. Former judges assigned judicial pursuant Former who are duties to the Supreme assigned power of the Court are in the constitutional discretion, exercise of the Court’s and have no tenure and no right discharge judicial except functions as authorized the Court; assignments power in exercise of constitutional the review, should be made after individual those ex- judges judiciary past who have enhanced the in the and who expected can be to do so in the future should be recalled to the 23). (Const 1963, 6, bench art § Judges Discipline — — 22. Judicial Tenure Commission. Discipline judge of a which is not intended to rehabilitate the protect punishment the officeis mere and not power disciplinary the of the within Judicial Tenure Commis- (Const 932). 1963, 6, 1963, 30; art GCR sion § Judges Discipline — — 23. Public Interest. public’s judicial discipline assuring The interest is in justice properly, preserving integrity is administered the judicial process, maintaining public the courts and the and in judiciary by assuring judges conñdence the conduct (Const beñtting 1963, themselves in a manner office 932). 6, 30; 1963, art GCR Judges — Discipline Judges Attorney — — 24. Former Grievance Commission. The termination of of the Judicial Tenure Commis- against longer sion because he no holds preclude operation attorney disciplinary pro- does not ceedings against judge; if his misdeeds as a were such Bar, as to render him unñt to be a member of the State Attorney Grievance Commission recommend (Const 1963, 6, 1963, 30; seq.). art GCR 960 et Superintending Discipline — — 25. Control Constitutional Law — Judicial Tenure Commission. Supreme power superintending separate

The Court’s control is disciplinary powers and distinct from the the Court exercises Commission; on recommendation of the Judicial Tenure convention, compromise, granted constitutional as a in effect power temporary suspension judges being the Court the as the Matter op Opinion the Court courts, proper superintending but ex- essential to the supervisory power

pressly withheld from 30). (Const 1963, art §§ from office remove — — Judges — Removal Law Permanent Constitutional Elective Office. exercising again from ever to forbid electorate permanently particular person by en- favor of a franchise in holding judicial office has not been joining Court, Supreme expressly granted and should 932). (Const 6, 1963, §30; GCR art inferred Judges. Judges Discipline — — Former suspension judicial is not a from office of a who The not, conduct is and censure which cannot correct sense, provided by judicial discipline; procedures any proper not be for should the constitution displeasure, justified, judi- employed proclaim with however primary purpose should be the because the cial misconduct judicial process public integrity protection of the of the and the persons judicial authority by by preventing who abuse of (Const 6, 30; position it art GCR are in a to abuse 932). Joseph Regnier, Executive Director and Gen- F. Stanley Dobry, Co-Examiner, T. Counsel, and eral Christopher Boyd, Staff L. S. Thomas Prowse Tenure Commission. for the Judicial Attorneys, Cholette, Richard D. Perkins & Buchanan (by Benson) A. Ward and Robert respondent. with presented are in this case

Ryan, J. We questions pertaining findings and recommenda- and the of the Judicial Tenure Commission tions power of this Court as relates to questions The are judiciary. members of the state respondent impression of first and arise because Probert, proceedings of the subject Charles V. us, longer is no a judge. before departure from Respondent maintains that his formal disci- office since the institution 411 Mich Opinion of the Court plinary divested the commission over him and this jurisdiction precludes follows, It imposing discipline. from effective he contends, that we should the commission’s reject discipline. argu- recommendation We find this unpersuasive. ment to the conduct detailed in Part III of response opinion, the commission recommended respondent "be removed from permanently enjoined holding such office

in the respon- future”. We conclude that because dent not a presently because we are not expressly empowered injunction to enter an here, sought implement nature we cannot specific recommendations of the commission. further, however, hold

We respondent our beyond disciplinary reach and conclude that he should be censured and sus- conditionally pended for five years, regardless possible of any election intervening appointment to judicial office. and procedural facts history case are

fully delineated in Part I of Justice opin- Levin’s ion.

I In people of Michigan amended the state constitution and established the commission. "(1) judicial A tenure commission is established con- sisting persons of nine three-year selected for terms as follows: Four judges by members shall be elected serve; of the courts in which they one shall be a appeals judge, court of judge, pro- one a circuit one a judge bate judge and one a of a court jurisdic- of limited tion. Three shall be members of the state bar who shall be elected the members of the state bar of whom one the Matter op Opinion the Court judges. shall be a shall not be Two shall two appointed by governor; appointed members governor judges, judges or shall not be retired staggered of the Terms shall be as members state bar. provided supreme court. shall by rule of Vacancies appointing power. be filled "(2) judicial tenure com- On recommendation censure, mission, suspend with supreme court remove a for convic- salary, or without retire or disability felony, physical tion or mental which duties, prevents in ual to the administration of performance misconduct the persistent duties, perform his habit- failure to prejudicial intemperance clearly or conduct that supreme court justice. provid- implementing rules this section and shall make ing confidentiality privilege proceedings.” 30). (hereinafter 1963, art Const § § 30(2) discipline: kinds of four prescribes

Section (with censure, salary), or without re suspension tirement, avers that Respondent and removal. question leaves office the once a discipline is rendered moot and the commission’s Implicit argu him is lost. in the jurisdiction over 30(2) ment befits in is the view is the judges only. position espoused cumbent This by Justice who concludes that autho "§ Levin, of disci imposition rizes the recommendation Thus, judges only”.1 for incumbent pline upon term, judge’s resignation expiration or the of his holds, colleague our commission must cease and this Court’s 30(2) read evaporates. under We do not

that provision so narrowly.

Indeed, one conceptualize is difficult how office could be sus- who does hold retired, office. pended, or removed from Neverthe- less, on three occasions issued we have at least added). (emphasis opinion, p 245 Justice Levin’s 224 411 Mich 210 Opinion of the Court suspensions conditional that would have foreclosed inhering prerogatives any exercise disciplined might office to which the judicial party future, in the appointed have been elected or course, being, appoint re-election or condition Mikesell, office. In the Matter of ment judicial In 517, 549; (1976); 396 243 86 Mich NW2d Rio, Matter of Del 665, 672, 3-4; 400 Mich fns 256 Bennett, In the Matter of (1977); 403 NW2d (1978). 178, 200; 267 Mich NW2d 914 The effect of suspensions disengage those would have been to from disciplined party judicial power, but person occupy judicial had that come to office again during suspension, the term of the and only to the extent that suspen terms office and Clearly, sion coincided. is immaterial to a sus pension of nature whether or not disci plined office party suspen holds when the imposed. sion is A conditional suspension, there fore, against is not taken appropriately incumbent judges only.3

Furthermore, it is not at all difficult to conceptu alize how one who does not hold judicial Respondent could be censured. himself concedes In possibility. light purposes of judicial discipline,4 the censure a former judge may entirely expedient. Mikesell, Rio, respondents The fact that Del and Bennett sitting judges imposed discipline respondent were when we is not is a distinction without a difference insofar as this Court’s

impose power suspensions the conditional is concerned. If we lacked the the suspend held, persons those offices not then suspensions power. However, nobody in those cases exceeded our claim, made that then or now. contending moot, respondent implies case it is impossible suspend, person position retire or remove a from a he agree. entirely does not hold. We of a conditional This is consistent with the issuance suspension operative, ever, only that will become if against presently the office. occupy future who does not description purposes, For a concise of these see the statement quoted the American Bar Association in fn infra. 225 op In the Matter Probert op Opinion the Court case miscon a of When we are confronted with question judicial of

duct in office and the judgment obliged arises, concern to make a arewe light judge ing respondent’s fitness to be a Thus, an a to enter decision of his misconduct. responsive judicial must be order of encom But our concern considerations. individual passes judicial miscon commits more: when one potential only marks himself as a duct he discipline, denigrates subject judicial an he of Accordingly, a decision on institution.5 discipline responsive significant to a must also be preservation consideration, of "the institutional judicial system”.6 integrity of the Institutional integrity, all, after is at the core institutional effectiveness. charged judge removes a with misconduct When notoriety judicial office to avoid the

himself from and and the served, the disciplinary proceedings ignominy incident possibility sanctions, censure, if de preservation may to "the essential be integrity judicial system”, especially if of the integrity critically undermined, be has been alternative, silence, cause the be construed public as an of condonation.7 act respondent stated, that be- As earlier asserts longer judge cause a the case moot. he is 5 relationship judiciary judiciary The and the public expressed 1 Code of are in the words of Canon of our Judicial Conduct: Uphold Judge Integrity Indepen- and "A Should op Judiciary dence indispensable justice independent judiciary “An and honorable establishing, society. participate our A maintain- should observe, ing, enforcing, high standards of and and should himself judiciary may integrity independence conduct so that system preserved. always A should be aware litigant judiciary. public, not the is provisions the benefit applied to further of this Code should be construed objectives.” those 6 (1977). Rio, 665, 725; 256 400 Mich NW2d 727 the Matter Del Hammond, Judge Inquiry Relating Harold L See In re to District 411 Mich 210 Opinion of the Court possibilities Because the of censure and condi- tional suspension remain after a judge charged with misconduct steps down or fails to be re- elected, discipline case does not become moot the instant the judge leaves office. Effective relief can granted; still be still controversy ex- Rio, Del ists. See supra, 685-686; Mc- generally Carthy v Wayne Judge, Circuit 373; Mich Detroit v Killingsworth, (1940); NW 683 181, 183; (1973). Mich App 210 NW2d 249 Estab- rule, therefore, lishment of a calling for immediate termination of commission upon a judge’s leaving office is unwarranted.

Such a rule would also be unwise. A judge charged with misconduct should not have the power, simply by leaving to short-circuit investigation allegations against him, leav- 745; (1978) (public 224 Kan 585 P2d 1066 censure of who had disabilities). resigned physical due to Moreover, preclude censure of a former would not on double jeopardy grounds discipline, removal, additional such as based on the same future. As 243 NW2d 86 regain misconduct judicial were that to office in the Mikesell, 517, 528; we noted in In the Matter of 396 Mich (1976), proceedings commission are not criminal nature: " proceedings 'The investigatory of the Judicial Board are advisory binding upon Supreme and are not Court. No determina made, guilt tion of criminal merely but a determination of the Judicial Board’s to the state conformity subject view of the investigation judicial constitutional Similarly, standards for office. resulting for criminal Supreme operate Order of the Court does not as a sanction guilt judgment judicial most, but as a on ñtness. At proceedings of the quasi- Judicial Board could be characterized as judicial hearings, Supreme administrative and the Order of the ” as a disciplinary (Emphasis original) (quoting order.’ Bell, 608, Supp Pa, Keiser v 1971]). 332 F 616 [ED Thus, Graham, we 104, 109; held in Ransford v 374 Mich 131 NW2d (1964), 201 to vote grounds, Michigan that the Representatives refusal of the House of judge’s preclude, for the removal jeopardy did not on double subsequent suspension our of him because "[n]either proceedings in this legislature Court nor those in the were criminal”. Accordingly, provisions, they designed constitutional insofar as are rights defendants, afford proceedings. pare inapposite criminal are to commission generally 12[a], pp See 53 ALR3d 912-914. Com- fn infra. the Matter Opinion of the Court ing proceedings incomplete subject pertaining alleged abrasion of time.8 Events the recommendation of misconduct and respect those events should the commission with good possible. There is be as close in time as reason, therefore, for commission notwithstanding completed, continue until judge’s resignation after or failure to be re-elected filing complaint. of a policy, a matter of "the

We are advised that as after [commission to act further has declined respondent’s judicial of a termination resignation, re-elected, failure developed light policy doubt death”.9 This the most effectual the commission’s estimation of an unfit or incom allocation of its resources. Once power, petent judge separated may, greatest danger passed. Be that as it and will not transform Court should not following Supreme To the same effect is the statement of the Court of North Carolina: travesty the full would indeed be a if a could avoid "[I]t consequences proceedings by resigning removal of his misconduct from officeafter against Concerning brought Inquiry had been him.” In re 109, 150-151; Judge Peoples, 250 SE2d No Linwood T 296 NC (1978). 890, 914 Moreover, Justice Levin concedes as much: ability recognize “We to the Judicial Tenure Commission’s might discipline prior be recommend embarrassed if based on misconduct in office inquiry by judges were able to shield themselves resigning and could wait until evidence of misdeeds has faded with time, regain impunity.” Justice and then and hold officewith opinion, Levin’s fn 15. recognition my qualify against contin- This leads brother to the ban uing proceedings judge after a leaves office: * * * might appropriate "There it would for be situations where be proceed Court to direct Tenure Commission to Judicial ex-judge testimony.” against point preserving an to of Id. the commission’s limitation on that such a are not convinced We range prudent. of action is Minority Support Dissenting Opinion and Brief of [Commission] Recommendation, p 2. 411 Mich op Opinion the Court fast, into a inflexible rule of law that policy would preclude commission, action when the contrary discretion, its considered deems it judgment appropriate.10

Furthermore, to hold that this Court has no judge to a former would work mischief, undue apparent, which would be most example, judge in a case in which a leaves office after case his is submitted to us and question holding of remains. Such a would mean that at a time when the commission completed its work and we have before us all information materials to render necessary judgment, our vindicate the integrity could judiciary negated nonetheless be wholly irrelevant occurrences such as the expira- affecting proceedings Considerations the decision to continue against judge include, a after he has left office but are not to, gravity limited the confidence and trust in the the likelihood of re-election to misconduct, importance reprobation public and the of official integrity Michigan judicial system. regard, charged supervising In this those must with the task of the conduct judges always of our bear mind the functions of discipline: major purpose judicial discipline punish judges, "[T]he is not to protect public, preserve integrity judicial process, but to maintain awareness of of the and create a public judiciary, greater confidence in the proper judicial part judges behavior on the them Relating selves.” ABA Retirement Discipline Disability Standards to Judicial (Tentative Draft, 1977, approved by ABA House of Dele added). gates, 1978), February, p (emphasis might argued permitting proceedings It against to continue during a require pendency proceedings who leaves office would permit begin proceedings against us to the commission to a however, reasoning, cogent. after he leaves office.This is not To filing complaint forbid the simply of a after a has left officeis give underlying effect to considerations our various statutes of limita- tions. It would pursuant acting also tend to ensure that the commission proper Finally, motives unrelated its mission. a distinc- purpose tion between related to the of commission can be drawn filing complaint against sitting judge judge: and a former complaint may encourage sitting judge, well-founded who is guilty misconduct, resign or not run for re-election. These pressures, germane purpose which are to the essential of the commis- keeping unfit off the bench—have no relevance to a sion— former judge. In the Matter 229 Opinion of the Court

tion of the judge’s term of his resignation, length of time we take to decide the case. II question whether empowered this Court to permanently enjoin respondent holding the future remains. authority Our to discipline members of the state flows judiciary sources, from two 30 and 4 of article 6 §§ Michigan Constitution.

The four types empowers 30 impose censure, suspension, removal, — and retirement —do not appear comprehend permanent injunction sought here.11 4

Section embodies general grant more power, power of superintending control. supreme "The court general superintend- shall have

ing courts; issue, power control over all hear and prerogative determine writs; and appel- remedial jurisdiction provided late as supreme rules of the supreme court. The court shall power not have the (hereinafter 4). judge.” remove a Const art 4§ in Huff, re explained As 418; Mich (1958): NW2d 613 "The superintending control conferred Constitu-

tion on power this Court is a separate, independent and distinct from its original jurisdiction other appel- powers, late purpose being its keep 'to the courts them- selves "within bounds” and to insure the harmonious 11"Suspension” stoppage is defined as ad interim "[a]n or arrest of pay; synonymous official nates —not with 'removal’ which termi- wholly incumbency employment”. of the office or Black’s (4th ed), Dictionary p Law rev "Retirement” pertaining refers to divestiture of office for reasons physical infirmity, misconduct, or mental rather than and is not in Relating issue here. ABA Discipline Standards to Judicial and Dis- Retirement, ability supra, 6.7, Commentary pp 52-53; to Standard No. 8.1-8.8, pp Standard Nos. 60-63. “suspension” Neither permanent disqual- nor "removal” connotes a ification from office. Mich op Opinion the Court having Such system.’ working our Court, it also upon by Constitution conferred been control make that necessary to power received all (Cita- effective.” and writs orders implementing its and omitted.) tions of great breadth Huff also outlined power: " is an extraor- control superintending power 'The of specific rules hampered by no It is dinary power. comprehen- general and It is so for its exercise. means and use have full extent complete and its sive that completely fully and not been hitherto practically unlimited, being bounded exemplified. It is known and its exercise. As call for exigencies which only by the occur, found able it will be these instances of new Moreover, required, the tribunals if them. cope with it, will, by of it virtue to exercise having authority invent, frame, new and formulate power possess it means, writs, processes whereby and additional and of limited forms power is not This may be exerted. procedure or Further- for its exercise. by the writ used tribunals, and more, inferior primarily to it is directed ” Id., 417-418. only incidental.’ litigants is its relation to this Court prohibits 4 explicitly It true that § control utilizing power superintending its from Nevertheless, purpose "for the to remove a judge.12 and processes protecting purity in the administra confidence maintaining public enjoined indefinitely tion of we justice”, duties of exercising powers "from [his] superintending power to our pursuant office” 108; Graham, 374 Mich 104, control. Ransford v 12 contrast, power 30 to remove § utilize the conferred In we 30, in our resides judge. to remove a Aside from § (for 6, Legislature. "reasonable art 25§ Const Governor cause” (impeachment grounds impeachment); 7 art short of for officers, corrupt including judges in office or "for conduct of civil crimes or misdemeanors”). In 231 Matter Probert Opinion of the Court Graham, In re 131 (1964); NW2d 201 366 Mich (1962) 280-281 fn of 114 333 NW2d Reporter; (same case); accord, Mussman, In re 99; 112 NH DeSaulnier, the Matter of (1972); A2d 403 (1972). 787; Mass NE2d important opinion

It is to stress that our today a retreat signal principles does the sound Huff, Graham, supra, supra. enunciated in As judiciary, head of the state is this Court’s " * ** keep [Michigan] 'to duty courts "within working bounds” and to insure the harmonious Huff, supra, ”. system’ our 418. That sys good tem is as as its constituent judges. Accordingly, invests this Court with the to determine is unfit for judicial prevent office and to him from exercising ever judicial power is, in this state for long as as he in our judgment, unfit.13 judicially

Section 4 does not bar us from explicitly perma- nently enjoining holding one from judicial office. however, provision, The does declare that we have to remove a power We judge. do not find 13This, course, say empowered is not to that we are to act arbitrarily always capriciously. judicial A determination of unfitness must accompanied by safeguards procedural process. due See, e.g., Graham, 268, 275; (1962); In re 366 Mich 114 NW2d 333 Heideman, 630, 632; (1972); re 387 Mich 198 NW2d 291 In the Matter Rio, 665, (1977). 682-689; of Del gener- 400 Mich 256 NW2d 727 See 1963,930, ally GCR judicial discipline provisions Most cases of are handled within the question power of 30. The § of this Court’s under 4 to § however, judges, independent is of that fact. Rio, 665, 679; In In the Matter of Del 400 Mich 256 NW2d 727 (1977), Judge enjoined the commission recommended that Del Rio "be holding judicial separate concurring office in the future”. In a opinion, enjoin I serving any stated that I "would him from state added). judicial Rio, p (emphasis officein the future”. Del As we case, right people reaffirmed in that "the of a circuit to they subject express the service of a and distinct limitations and whom have elected is qualifications provided the Consti- added) 685, (emphasis (construing tution and statutes”. 400 Mich fn 6 Huff, 402; [1958]). In re 352 Mich 91 NW2d 613 411 Mich Opinion of the Court against cognate prohibition a specific prohibition here. If a recommended permanent injunction of "re truly were a form injunction permanent compel judgment would moval”, consistency a judge, to "remove” 30, us which authorizes § but, permanent injunction, a to enter permits us the case.14 this is not clearly, permits 4 neither nor forbids language of against injunction a permanent us to issue superintend lack office. The holding itself unavoidably does not to remove ing of superintending a similar lack entail deprives Removal permanently enjoin. interest —his exist tangible significant

a more upon impinged the interest ing judgeship —than potentiality of attain permanent injunction —the problematic more ing judgeship —which uncertain.15

Nonetheless, might im injunction permanent Michigan right of voters plicate office. As our who would hold choose those observes, correctly recom Brother Levin "prevent the electorate injunction mended would effectively exercising the franchise again from ever person”.16 suffrage That particular of a favor 2, art constitution. Const by our bestowed 2, 8, 1; 16. Section should be art §§ construed, with possible, if to harmonize other therefore, agree, We provisions.17 constitutional 11, supra. See fn * * * 15 intangible opportunity too much to be re-elected "[The] process.” Gruenburg protection due v an interest to invoke the (ED 1976), Mich, quoted Kavanagh, Supp F in In 413 1136-1137 (1977). Rio, 665, 685; 256 the Matter of Del 400 Mich NW2d 727 opinion, p 259. Justice Levin’s primary importance are of constitutional "Of two basic rules construction. interpreted Every in "1. statement in a state must be constitution light whole document. equal principles “2. are of Because fundamental constitutional Matter Opinion of the Court perma power comprehend 4 does not holding judicial from person

nently enjoin office.18

Ill longer judicial holds Charles V. Probert that he "be recommends office. The commission [(2)] perma- office and [(1)] removed from in the holding such office from nently enjoined future”. is moot. first recommendation carried

The second recommendation cannot be II. out for the reasons discussed Part Nonetheless, possibilities of censure con remain,19 and, therefore, our suspension ditional recommendation deny decision to commission’s question discipline. does foreclose findings into four The commission divided its general categories:

"(1) disregarded Respondent habitually willfully statutes, rules, responsi- court canons and other ethical justice; bilities the administration of "(2) Respondent his office to improperly used benefit his friends and court employees;_ dignity, impair nullify substantially none must be so construed as to Blachura, 326, 333; People 212 NW2d another.” v 390 Mich (1973). 18This coordinate is consistent with the fact that neither of our government constitutionally permanently branches of authorized to enjoin most extreme civil sanction that can be inflicted holding judicial in the case of the office. Even upon judge— impeachment penalty further than removal “shall not extend 11, —the from office”.Const art 7.§ control, deciding superintending Aside from that our 6, 4, permanent Const art does not enable us to issue a injunction against holding question we reserve the properly whether and to what extent we could this case. exercise 411 Mich Opinion "(3) giving rise to engaged in conduct Respondent impropriety; and appearance impropriety and "(4) gross judicial Respondent exhibited a lack temperament impartiality.” and findings as

The commission elaborated its fol- lows: "(1) adopt, fully as general category, As to the first we record, findings respondent supported by the right

wrongfully: to of criminal defendants thwarted appointed counsel; right denied defendants the perverted process the bail to unsuit- reasonable bail and able purposes; improper and denied defendants right statutory appeal bond; to an routinely denied the clear right post percent of misdemeanants to a ten bond; habitually contempt power. abused his Re- spondent’s ever well lessness. refusal confiscation extrajudicial weapons, how- motivated, constituted an act of law- general respondent’s category, Under the same obey superior an order of a court was an act prejudicial of insubordination and conduct clearly justice. administration of See In the Matter of (1978). Bennett, 178; 403 Mich NW2d allegation paragraph

"Concerning the proofs respondent’s acceptance in the showed unlawful plea felony on an guilty Jacobs case of a to a written appearance diction or any juris- ticket. This is an action without disregard of

justification and is a serious proper procedure. pales comparison respon- It records, subsequent police dent’s alteration of court and records, perjury his in the court and his falsification of records, up his miscon- all an effort to cover duct. foregoing "We find that the evaluated in misconduct totality clearly prejudicial its administration of sistent failure to constitutes conduct justice, per- misconduct perform judicial proscribed duties as 6, 30, by Const art and GCR 932.4. "(2) regard general category, With to the second we following respondent improperly make the used his observations: court office to benefit his friends and court, employees. ing processes includ- He abused the contempt power, his a material benefit for obtain Matter Opinion of the Court nephew manner, of his court In a constable. similar procured friend, he employment an test his preparing assisted her in answers in advance of the * * * test. "We find that this constitutes misconduct in office clearly prejudicial and conduct to the administration of justice purview 1963, 6, 30, within the of Const art and GCR 932.4.

"(3) general As to the third category, giving conduct impropriety appearance rise to and the of impropriety, respondent’s public we find intoxication and associated grave responsibilities. * * * misconduct to be a breach of his "Respondent’s proven drunkenness as did not involve However, notorious, his activities on the bench. his flagrant, and boorish behavior in Wyo- the bars around ming, Michigan, public spectacle, created a and doubt- community. Thereby, less scandalized the he violated * * * behave, his 'in duty though a sense as he is Bennett, always supra. on the bench’. "We find that his behavior failed to avoid impropriety appearance and clearly prejudicial its and was conduct justice meaning administration of within the 6, 30, Const art and GCR 932.4. We find respondent’s further that to conduct aforesaid was such as bring disrepute. his office into "(4) respondent’s gross As to judicial tempera- lack of ment and impartiality, general there are two areas of respondent’s misconduct. The first is ior examples injudicious behav- during arraignments sentencings. and The concrete legion of misconduct fully are and are and adequately in report discussed of the master. Fre- quently, respondent interjected extraneous matters into proceeding appear and made it that his determina- tion badg- case rested on them. He bullied and ered defendants. In proven, a number of cases as peculiar conceptualization brandished his relationship to appears police, referring between the court and the 'my police Particularly shocking officers’. conduct People Bouwhuis, Joseph compan- v and its There, ion cases. he told the defendants that there were 'pimps, murderers and at homosexuals out the Kent 411 Mich Opinion op the Court would be 'some fresh County Jail’ and the defendants Respondent’s frequent statements at meat for them’. case, particular that the defen- arraignments, as in that attorney, need an but need a miracle dants 'don’t suggested respondent necessarily worker instead’ prejudged their case. had Schultz, respondent referred to People Gary

"In v In People defendant as a 'little bastard’ from the bench. Sharpe, respondent’s demeaning, v Charles sarcastic admitted homosexuality remarks about the defendant’s Judge made it Probert sentenced him not obvious did, for what he but for what he was. aspect respondent’s partiality unju- "Another temperament during prelim- dicial inary manifested itself Bolot, People Gary examinations trials v Selkirk, McKellar, People People v Scott v Thomas People Metzger, People v Alan v Nicholas Busser. overbearing way, respondent In the most crude and with the normal interfered course of these sought to obtain the desired result without circumstances, formality respon- of a trial. Under these dent, Rio, Judge improperly like Del himself coerced Rio, guilty pleas. Del find in "We this be misconduct office and conduct clearly prejudicial to the justice, administration of in 1963, provisions 6, contravention of the of Const art 30, 1963, and GCR 932.4.”

A review of the findings record reveals that the Further, of the commission are amply supported. respondent has filed no to the master’s objection report upon which they are based. We therefore adopt the findings of fact and conclusions of law in the quoted portions of the opinion. commission’s find,

To sum up, commission, we as did the that actions, respondent’s whole, taken as a constitute conduct clearly prejudicial administration of justice, misconduct persistent and failure perform duties, proscribed all Const 1963, 6, 30, 1963, art and GCR 932.4. the Matter . Dissenting Opinion by Levin, J. egregious and

Certainly, misconduct perfidy imposition warrant the mea- disciplinary acts, sures. ignore Court cannot respondent’s This not only they because violate the laws of this state, because, but as Rio: also stated Del preservation real issue in this case "[T]he [is] integrity judicial system. "The functions and of a an decisions have impact community large. incalculable on at A citi- experience zen’s tact with with the law confined con- is/often Therefore, important courts. integrity judiciary preserved that be but that appearance integrity be maintained.” Del Rio, 725. The foregoing with analysis applies equal force to respondent.

Accordingly, light the nature and extent commission, his misconduct as documented pursuant and 932.25, GCR we hereby censure Charles V. Probert and impose five-year conditional suspension pay without effective the date of this decision. he regain judicial Should time, during Mr. Probert will neverthe- less debarred from exercising prerogatives of the office until at the expira- least tion of suspension. Pursuant to GCR the clerk of the Court is ordered issue final process upon immediately opinion. release of this

Coleman, C.J., Williams, Fitzgerald, Moody, Jr., JJ., Blair J. Ryan, concurred with (dissenting). J. Levin, The Judicial Tenure Com- Probert, mission has recommended that Charles V. longer who no judicial office, holds "be removed from office enjoined and from permanently holding such office in the future”. 411 Mich Opinion Dissenting Levin, J. a can- person majority agree

We with holding judicial from permanently enjoined not be office. Probert "conditionally suspends” majority

The him. date and censures We for from this years five not empowered the commission dissent because of, nor is this Court to recommend recommendation, on the commission’s empowered, longer no holds a who office.

I 1978, 17, Judicial Tenure Commis- On April Charles V. complaint against a sion filed formal municipal City then for who Probert was complaint was filed supplemental A Wyoming. appointed hear 24. A master was May hearings intermit- were held charges public 21. September 11 to tently July Municipal Court was abolished Wyoming 1, by replaced 1979 and January statute effective court. Probert was defeated in district two-judge of the new in positions his efforts at election to one November, His December expired office since that and he has held time. report January was filed on

The master’s 1979. The found misconduct.in office.1 master defendants; indigent appoint set Probert refused to counsel for provide court with to coerce defendants to excessive bail information; order notwithstanding appeal cash on insisted on bonds surety bond; provides denied traffic and misde- statute offense bond; right post percent statutory ten meanor defendants freely their contempt imprisoned persons for indirect without fined contempt charges, opportunity employ counsel or formal notice guns hearing upon charges; turn forced defendants to rifles bond; court, setting as refused to case a condition for one obey preliminary to conduct a examina- an order the circuit court tion; beyond accepted plea guilty felony, his of a which was 239 the Matter by Dissenting Opinion Levin, J. objection report.

Probert filed no to the master’s 18, On he filed in this Court a January motion to jurisdiction and dismiss lack mootness. We the motion to denied dismiss "without to prejudice his raising question of mootness in a petition reject or modify commission’s recommenda- 932.24(a)”. 1963, tion under GCR Probert by was informed letter that since he had filed no objections report, the master’s the Judi cial Tenure report Commission would consider without hearing argument.2 and oral On April 1979, a five-member majority the commission adopted findings the master’s fact and conclu sions of law and recommended Probert be from judicial "removed office and permanently enjoined holding such office the future”.3 Three members of the commission recommended complaint be dismissed because the com- mission’s jurisdiction is limited to recommenda- tions concerning persons holding judicial when the recommendation is made.

The record was transmitted this Court jurisdiction, and later falsified court records show that the defen- arraigned charge; dant was on a lesser ordered a defendant before contempt charge him on a to vacate his home 48 within hours and possession nephew employee deliver to the niece and of a court who purchased notwithstanding posses- had the house that no action for pending him; provided copies sion was before with a friend of a typing written examination and a test so that she would be able to pass his actually eligible the tests when administered and be to become clerk; deputy public became intoxicated in attention to called about, staggering speaking loudly himself about his au- thority, soliciting activity stranger openly sexual from a female with, engaging ered, activity woman; argued badg- in sexual with another suggested police and belittled defendants and to them that the independently law; impose attempted would induce sanctions forbidden guilty pleas by coercion; with involved himself witnesses concerning prosecutorial court; readily matters before the assumed the dealing role in with criminal defendants. GCR 932.16. persons. persons partici Eight The commission consists of nine pated in the decision in this case. Mich Opinion Dissenting Levin, J. 932.23, and Probert GCR with accordance recom- the commission’s reject petition filed mendation.

II con prior forward 1963 Constitution carried The Court broad granting provisions stitutional However,: control.4 of powers superintending expressly office was to remove a by action of denied;5 removed could be by impeachm or Legislature and the the Governor ent.6 6) (art 1963 Constitu- article judicial

The 30, ratification of in 1968 § was amended tion Commission, Tenure the Judicial which establishes and method of selec- qualifications forth the sets members, provides: of its tion tenure commis- recommendation of the "On censure, suspend or sion, with supreme court for or remove conviction salary, without retire prevents disability which felony, physical of or mental office, duties, performance of misconduct duties, habitual intem- persistent perform his failure clearly perance prejudicial or is conduct make justice. supreme of court shall administration rules The confi- implementing providing for this section and dentiality proceedings.” privilege 1963, imple- GCR promulgated This menting § 30._ 6, 1963, art § Const 5 Id. impeach cause, ground for "For reasonable which not sufficient

ment, governor any judge on resolution shall remove a concurrent serving in house of to and each two-thirds of the members elected length legislature. at in the The shall be stated cause for removal 6, 25. resolution.” Const art § Impeachment provided 7.§ art In the Matter Dissenting Opinion by Levin, J.

A The function of the Judicial Tenure Commission is to monitor conduct persons charged with of justice administration and to recommend action to disciplinary this Court. focus is on the discipline of persons § indeed, tenure;

with judicial the commission is denominated Judicial Tenure Commission. suggests This 30 is concerned with the persons who have judicial tenure— persons who currently hold office.

Further, the four types of disciplinary action censure, suspension, listed retirement § 30— removal —are stated to be actions in discipline of A judge”. "a who left judicial resignation, retirement gain or failure to re-elec- tion, longer is no a judge. Accordingly, by reason of the specific language disciplinary action cannot against be exerted a person who has left judicial office; only judges subject are to discipline under 30. § reading

This of supported 30 is also an by analysis of the types of disciplinary action autho Suspension, rized. retirement all in removal volve the separation of person a from whatever judicial or office authority he has.7 may One char acterize an order which bars person a who no is longer judge a holding from judicial office in the future as a "suspension” (or, matter, for that as a "retirement” "removal”), or but such a characteri zation is a strained meaning of those words. The 7 judges Removal is guilty the means which of serious miscon- who, duct are divested of office. Retirement is intended for although guilty misconduct, of no perform are nevertheless unable to judicial Suspension office; duties. merely is not a divestiture of is separation judge judicial of powers from his and duties. It is appropriate disability where misconduct or is serious but the situation thought require judge is that the be removed. 411 Mich 210 Dissenting Opinion Levin, J. we are which meaning "suspension”, normal the present which has is an act accept,8 bound au from separating judge effect of suspen The "conditional office he holds. thority or effec would become imposed by majority sion” again attains judge if the former only tive suspension” "conditional period during office he does so—it has ineffective unless totally and is effect. present longer holds held but no A who has indeed, if "cen censured be may, as an utterance generic meaning its given sure” is directed to which can be strong disapproval, not, than its more rather ex-judge anyone, of discipline 30 as a level meaning under specific misconduct, seeks to cause a which, identifying "Cen in the future. to correct his behavior as intended to have should not be read sure” specific the more meaning when generic to correct the behav meaning discipline intended — consistent with ior of an incumbent —is three of disci meaning types of the other normal lan accompanying modifying pline with censure, discipline, including guage any be known meaning of a word judge”. "a it.9 It to be con accompanying words context, not in the abstract.10 strued severe intended to be the least Censure was where, discipline, form of reserved for situations indicated, some action is disciplinary while with a to correct his conduct expected 8 See, Lansing Dep’t e.g., v Production Credit Associations (1978). 301, 312; Treasury, 404 Mich NW2d Levenburg, Wayne Prosecuting Attorney 8; Mich v State ex rel (4th 455, 466-467, (1979); Dictionary Law fn 280 NW2d 810 Black’s ed), p 1209. 10See, System, e.g., County Employees Retirement Dussia v Monroe (1971). 244, 248; 386 Mich 191 NW2d 307 the Matter Probert Dissenting Opinion Levin, J. reprobation.

minimum of Censure is appropriate where, engaged while the in some mis- conduct, he fit serving is nonetheless to continue retirement, as a and therefore judge, suspension or appropriate. removal is not

It skews the constitutionally prescribed scheme discipline to construe "censure” discipline as a which on a imposed person determined to be unfit to continue serving judge. as a Nor consonant with that of discipline scheme to cen- who, sure a since he longer holds judi- cial cannot be expected to correct his con- duct.

B We do not agree with the Court that it is within the intent of 30 for this Court to both censure and impose some other form at same time for the same misconduct. provides

Section 30 that this Court on may, recommendation of the Judicial Tenure Commis sion, "censure, suspend with or without salary, retire or remove a judge”. The disciplines are listed in alternative, gradation and their severity indicates it was contemplated that a choice would be according made severity misconduct.11 The deci majority’s sion impose both censure and "conditional sus pension” is thus at odds with the apparent intent of 30.§

Ill The commission argues these proceedings should continue because 7, supra. Seefn 411 Mich 210 Levin, J. by Dissenting Opinion

i) complaint was the was a when Probert jurisdiction had therefore and the commission filed attaches it will matter; jurisdiction the once over events, even of a subsequent by not defeated it from prevented have which would character Thus, the commis- in the first instance. attaching although jurisdiction this Court have sion and longer judge. is no a Probert

ii) purpose have a because The still a) re- permanently can be censured Probert b) Com- Attorney the Grievance moved from Court’s have the benefit of this mission should c) determination, the merits a decision on conduct guidance regarding proper provide would Commis- and the Judicial Tenure judiciary the sion.

A general states accurately commission loss That rule of regarding jurisdiction. rule however, govern this case. does jurisdiction, over whom has been person jurisdiction When a state, question obtained leaves properly power the court has to continue arises whether binding the case and a on judgment hear enter because is residency changed whose a power well established that a court has to enter a over whom judgment binding upon non-resident personal it has obtained Since jurisdiction. is not lim- power court’s to enter final judgment obtained, residents, ited its once jurisdiction, to a change not defeated in status by party’s non-resident. is whether case, however,

In issue power of the and this Court to act commission to ex- change defeated status Matter Dissenting Opinion Levin, J. Thus it is the judge. premise general rule regarding loss of jurisdiction court’s —that judgment enter is not affected change party’s question status —which is general cannot, course, here. The rule be cited as authority premise. for its own

Here, recommend and to enter a final order of discipline is defeated because 30 authorizes imposi- recommendation tion of incumbent only. Since the commission has no power to recommend disci- pline and the Court has no power to order disci- pline under neither the commission nor the § Court has power continue to address the merits proceeding. It disciplinary is the lack of power to recommend and to order discipline under 30 which defeats jurisdiction under

B Since, agree, as we all power Court has no to permanently enjoin holding Probert from judi (Part IV, infra), cial office and there no power (Part supra), continu discipline II, otherwise him ing proceedings would purpose serve no other than punish him, or make an example of or inform public of his misdeeds.12 are indepen These dent functions of Judicial pro Tenure Commission ceedings, consequences but merely discipli function. nary Proceedings which should otherwise distinguished Inquiry Concerning This case is thus from In re Judge Peoples, 109; (1978), No Linwood T 296 NC 250 SE2d 890 upon relies, judge’s which the commission where a removal for operated disqualification misconduct under North Carolina law as a Thus, holding grant future office. embraced in the of the grant power and, implicitly, obligation to remove was the to determine whether the should ever hold question Peoples voluntarily future. This remained after left office. 411 Mich Dissenting Opinion Levin, J. simply to effect not be continued terminate should these ends. urges to address the merits us

The commission respon- finding proceeding that in this "[a] because prejudicial to the ad- was conduct dent’s conduct persuasive highly justice would be ministration Attorney proceedings Grievance in the before of stare decisis”. under the doctrine Commission Attorney Grievance Commission has While discipline investigate and recommend subject of Judicial conduct which has been the proceedings and the record of Tenure Commission admis Judicial Tenure Commission hearing,13 Attorney at Grievance sible Commission mend the must find the facts itself and recom appropriate. it thinks This is even where the basis of is the same so kind of misconduct. The two commissions

operate protect independently distinct interests professional maintain distinct standards. might judge’s prejudicial

A conduct justice administration of while identical conduct lawyer might person’s A a not be. conduct or temperament might judi- render him unfit to hold affecting substantially cial office while not his fitness be member the bar. guilty preju-

If Probert is to be found of conduct justice dicial to the administration of and that finding attorney disciplinary is to be the basis finding action, the should be made in the context attorney disciplinary proceedings so that focus can be his conduct as a member of the bar judicial and not his fitness for office.

13 GCR op Matter Probert Dissenting Opinion by Levin, J. argues a disposition commission on the will provide guidance

merits this case for other judges the commission itself. sure, be a judge publicly disciplined

To when for other specified misconduct are informed may discipline what conduct result they be deterred that conduct. But the com- mission cannot properly proceedings conduct for purpose alone when it otherwise lacks the proceed. A prosecutor cannot continue proceedings for against, example, a person who becomes incompetent during dies the pendency on the rationale that although him, the court convict persons cannot other will learn what conduct will be the basis of criminal charges will be deterred from that conduct. The commission stresses Probert not disavowed an intent to seek office future and that reason he is now not is that his old office was abolished and he not was elected to a position. Proceedings new continue, should it is argued, might because he be or, elected as a former judge, assigned elected office the future. A holding that this Court does have author- ity under Probert at this time not, however, would absolve him of responsibility for judicial misconduct.

A subject prior conduct taking to his office or during previous tenure.14 regain Were Probert after Judicial 1963, 932.4(d). GCR 210 411 Mich 248 Dissenting Opinion Levin, J. terminated with proceedings

Tenure Commission again he would be discipline, imposition out and, if appropri proceedings subject to commission based ate, might be recommended proceedings.15 those on the record made part resigned that a or possibility There remains duties assigned judicial be will defeated 6, art under pursuant its this § perform judi- judges former elected to authorize periods. duties for limited cial Tenure Commission Continuation of Judicial im guard against necessary is not proceedings are power. Judges exercise proper recognize ability Commission’s that the Judicial Tenure We might prior misconduct in office recommend embarrassed resigning time, might Court to direct the Judicial Tenure ex-judge initiate ing based on inquiry by if were able to shield themselves of misdeeds has faded with and could wait until evidence impunity. regain and hold office with There and then appropriate be situations where it would be therefore proceed against Commission to an point preserving testimony, or for this Court to to the superintend proceedings pursuant to this to that end Court’s 930, 1963, providing authority under art 4. See GCR for the judiciary Michigan. superintendence of the corollary problem in have dealt court rule with the civil- We perpetu- provides who desires to cases. GCR ate his own action, "[a] commencing testimony may, of another” an or that before authorizing taking depositions. petition for “If an order prevent perpetuation testimony may the court is satisfied that the a failure or describing the shall be taken designating delay justice, or it shall make an order persons depositions specifying may whose be taken and depositions subject matter of the examination and whether interrogatories.” upon oral examination written We need not here decide what action the Judicial Tenure Commis- case, preserve testimony. In this sion Judicial Tenure Commission has take order proceeded past point of well preserving testimony. ter’s hearing transcripts, a mas- We have us before report findings, and the Judicial Tenure Commission’s findings possibly authorize and recommendation. All that we could has been done. today opportunity Nor need we decide what should be afforded ex-judge sion’s proceedings preserve testimony object to himself or to to the commis- point. findings progressed if have pursuant rule with Pro- below were conducted to court participation, objected master’s bert’s and Probert has never findings. See GCR 932.16. Probert Matter of Dissenting Opinion Levin, J. discretion; in this

assigned the exercise of Court’s they right discharge have no tenure and no authorized except functions as this made Assignments Court. should be after individ ual only ex-judges review and those who have in can judiciary past enhanced the the and who be in expected to do so the future should be recalled the bench. Communication with the Judicial in step Tenure Commission should be but one assignment process. provides The rule court which for before confidentiality commission records a complaint provides is filed also that the commis sion may assigned release information about judges State Administrator.16 might It argued that the commission should be permitted to proceed against ex-judges pro- public’s tect the being interest informed. We are persuaded continuing for proceedings purpose would exceed grant authority 30 and distort the intended function Judi- cial Tenure Commission.

Judicial tenure are un- confidential til complaint public is filed and are thereafter. When a complaint hearings has been filed and conducted, been have case, public as in this will have access to all information a part made the record by the Terminating pro- commission. ceedings when or resigns retires his expires will that discipline mean is not imposed public will still have to infor- access —the mation his concerning conduct. a judge

When ceases to hold office at an earlier stage in commission proceedings, pro- or before (d) 1963, 932.22, (e). GCR subds Mich Dissenting Opinion Levin, J. ceedings commence, will be avail- less information through public Educa- the commission. able to judges, public, of other like education tion of discipli- sequence merely con is, however, nary creating a commission Section function. per- recommending responsible for for suggest holding judicial does sons public itself, an end to be education of the pursued disciplinary function has ceased. after the Commission, created to Tenure Judicial for in order to main- recommend judiciary, quality was not consti- tain watchdog pursue judges agency as a tuted purpose publicizing Its misconduct. function the necessary or to recommend corrective is to hold ceases removal. When office, judiciary, potential the the threat public, perforce, is and the removed author- proceedings ity to conduct commission Discipline necessarily threat ends. remove that protect judge or the intended to rehabilitate the punishment. mere Judicial Tenure office is proceedings reme- are intended be Commission penal. dial, not pro-

Moreover, of commission the termination ceedings public the be not mean that will does notably inadequately institutions, informed. Other being press, public’s in the the interest serve expected regardless may to do so informed and proceedings con- of whether official commission tinue. press reports alleged judi-

Indeed, often on the the a for- cial misconduct before commission files complaint. Rightly practical wrongly, the mal or reality prospect publicity is that this judges re- commission sign cause some judges seeking and some re-election retire Matter Dissenting Opinion by Levin, J. thought judge’s If it be defeated. that a resignation or retirement from office or his failure adequately to win re-election does not serve other public press primar- interests, institution —the ily responsible protecting public interest in investigating information —can continue porting. and re- public’s judicial discipline The interest is in assuring justice properly, is administered preserving integrity of the courts and the judicial process, maintaining public and in confi- judiciary by assuring dence in the befitting conduct themselves in a manner their ex-judge office. holds no such justice does not administer and is removed from judicial process. the courts and the proceed Nor does the termination of commission ings preclude operation attorney discipli nary judge’s rules. If misdeeds were such as to render him unfit to bar, be a member of the Attorney Grievance Commission recommend discipline. Additionally, ex-judge subject appropriate And, criminal law. case, an supervisory could, in the exercise of its power, investigation initiate or continue an of its appeared public own if it that interest re quired extraordinary such action.17 It should remembered, also be earlier, as stated judge that a thereby who has left office is not occurring prior absolved misconduct to his elec- appointment tion or to office. If a who ceases disciplinary proceedings to hold office before run 1963, 930, providing See superintendence GCR for the judiciary Michigan. 411 Mich Opinion Dissenting Levin, J. office, the Judicial regains course their a previous reactivate may Commission Tenure recom- may conduct judge’s into inquiry on that conduct. based mend a provide rules attorney not may filed is complaint against whom lawyer If he guilt.18 admitting without from the bar resign effect, proceed to that affidavit sign not an does until termination. continue ings will to pursuant adopted rules were Such legal regulate to authority plenary Court’s however, not, have such does The Court profession. require- or alter expand authority plenary on the a limitation 30. Such terms of ments or resign not contained power to continue power has If the commission longer judge, one who is against proceedings it might why a reason difficult to discern initiate who is not a against one come in office which for misconduct office. The commis- has left light since the require any sion then would have regard without judge, retired or defeated he left filed before complaint had been whether charges of misconduct against to defend never these notwithstanding ex-judges to hold or have the opportunity intend office in the future. Tenure the Judicial

If the asserted recognized, in the case is Commission instant did apparently as it might obliged, commission feel case, the members implement in this what the majority’s dissented from the commission who GCR 964.13. In the Matter Dissenting Opinion Levin, J. recommendation characterized as "a policy pur- suit into retirement”.

If exists, public the power clamor caused unearthing of misconduct cause the com- may it, obliged mission feel to with employ the result that the commission would be not acting protect the public appease result, but it. As a commission’s would be resources diverted from its protecting function of primary judicial office from to investigating publicizing misconduct and alleged hold, persons no longer misdeeds who hold, never again judicial office. The resources of the commission should be dedicated the essen- tial 30: purpose preventing the abuse of judi- § power by power. cial those who exercise that

IV The commission has recommended that Probert from permanently enjoined holding judicial argues office. It the constitution empowers to permanently this Court remove from and therefore commission proceed- ings should be terminated merely because a to hold ceases office.

A The commission contends this Court needs express authorization permanently disqualify removed office when Const 6, 4, art is read conjunction with § Art 4 expresses this Court’s super- intending control: supreme "The court general superintend- shall have

ing courts; issue, control over all hear and prerogative writs; determine appel- remedial 411 Mich Opinion Dissenting Levin, J. supreme rules of the provided by jurisdiction as late power to supreme not have the court shall court. judge.” remove separate control superintending of power The forth power set disciplinary the and distinct from to only 30 may pursuant This act in 30. Court § § the Tenure Com of Judicial on recommendation mission, discipline not based impose no In finding specified cause.19 commission of on a contrast, respect no role with the commission 4. That under supervisory powers Court’s to this recommen without commission power is exercised no to dation, authority commission has and the IVB, infra. action. See Part recommend Moreover, its authority Court has no under this power superintending permanently of control holding office. enjoin empowered gen exercise This Court has been all since control over courts superintending eral Constitution of 1850.20 The adoption of the the express on the withhold power by limitation this was in power the to remove added ing of 1963 Constitution. debates the constitu the adoption the preceding tional convention show that there was considerable con constitution power as it then superintending cern the An gave power.21 much existed too amendment was offered that would have withheld not also to power only suspend. remove but in to the amend-

Delegates speaking opposition granting su- emphasized ment value broad Court, perintending authority any and that light in of the re- unnecessary limitation was 517, 524-527; Mikesell, 396 19 In the Matter of Mich 243 NW2d (1976). Const Official Record, art Constitutional Convention pp 1269-1287. Matter Dissenting Opinion Levin, J. during years straint shown the Court the 112 possessed power: had the "unlimited” had Additionally, power ever been removed. to at temporarily suspend least seen was as proper superintending essential courts. compromise, adopted

As a the convention an power withholding remove, amendment thereby granting temporary in effect suspension. placed Considerable trust was thus delegates willing this Court’s restraint: were grant take risk of such a broad primarily because their trust the restraint exercising the Court had shown it. permanent injunction against holding judicial

A to a tantamount removal operates permanent term of office but also as a granted removal in futuro.22 To construe what was power suspend temporarily §in 4—the from the equivalent exercise of office—as the expressly power what was withheld —the to re betray from move the office itself—would understanding trust, that which was and would the violate on granted. it We would not another allow government expand power; arm to so its more so should we not allow ourselves.23 22 permanent injunction beyond It is this additional effect of a the precludes finding, effect of a majority removal that as the states consistency compel (Opinion Court, 232), p would of the that § 30’s permanent authorization injunction. of a removal authorizes a 23Although majority concludes that 4 authorize a § does not permanent injunction against holding judicial office such an because might injunction right defeat the electorate’s constitutional suf- frage, majority superintending power states that lack "[t]he unavoidably remove not [under § does itself entail a similar lack of superintending power enjoin.” Court, permanently (Opinion to argued, 232). so, p deprives This is it is because removal a of a significant tangible permanent "more than interest” does a injunction. deprives existing judgeship” The former one of "his deprives potentiality attaining judge- the latter ship”. one of "the a supported by quotation This conclusion is a redacted from Mich by Opinion Dissenting Levin, J. power, granted was this Court Under reserved, to remove expressly previously subject made Removal was from office. process two-step of a safeguards —recommendation by and action Tenure Commission the Judicial Court. or constitution provide by jurisdictions

Several from removed has been a who statute (ED 1976), Mich, Kavanagh, Supp Gruenburg quoted (1977): 1136-1137 413 F v 665, 685; Rio, 256 NW2d Mich Del in In the Matter of * * " * intangi- is much too opportunity re-elected to be '[The] ” process.’ protection of due to invoke ble an interest placed Gruenburg in Del Rio is quotation included from When the apparent replaced, language it when the excised in context or that re-election denial of the the effect prospects damage judge’s for speaking to a of the the courts were complete temporary suspension, not of the caused a re-elected, which would be right officeif to hold the to consider the permanent injunction the instant case. Had of a Gruenburg Del Rio been asked or courts in either denial of the elected or right one has been office to which to hold a deprivation a convicted appointed, to that of a similar damage offices, right than the father to hold certain elective felon’s damage reputational of a prospects re-election caused one’s have concluded suspension, no interest entitled to that either court would it is doubtful process protection was affected. due sitting judge power Moreover, distinguish to divest between enjoin prospective assum- power of his office and the appointment may gain through is to ing any election or he injunction. ignore the effect of such an all, any a removal injunction at it is either as an has effect If such (if entitled to judge, despite injunction, become otherwise appointment) through a threat of removal or as hold office election (if prospective judge do so would be not office because to does seek light injunction). futile in that this Court has from the terms of 4§ While is clear removal, majority injunction states that as a to issue an this lack of effective necessarily preclude an the issuance of does assuming, apparently, injunction threat of effective as a removal— seeking effectively keep office so from that the threat will that the impermissible injunction effect of actu- the will never have removing appointed judge. ally an elected or words, may majority suggests threaten that the Court In other the appar- doing. constitutionally prohibited from This to ently only obtaining it is do what assumption effective. For that the threat will be based on the judge prospective preventing from if the threat is effective in removing injunction limited officewill the force of the be removing attaining judicial potential than of office rather judge from an officehe has attained. the Matter Probert of by Dissenting Opinion Levin, J. from disqualified holding judi office is thereafter provision. cial office.24 has no such Michigan judge Supreme by "A retired Court shall be considered judge by Supreme voluntarily. A removed Court is have retired ineligible suspended judicial pending further order of the court is office and 18(d). Const, practicing from law in this State.” Cal art § proceedings, "Pending the of the the Trial Division determination may suspend respondent in office. After ment as the facts (1) from the exercise of his its discretion hearing, judg- full the Trial Division shall render such may justify. judgment extend further than: No shall office, respondent disqualifi- of the from with or without removal honor, trust, profit any public hold office of or under this cation to State, (2) office; proceed- proceed- compulsory from but such a or retirement result, regardless prejudice any ing, other shall not bar or 4(d). Const, 7-A, criminal, ing, law.” Okla art civil or authorized judges superior justices Supreme of the "The Court and impeachment, any judicial subject to officer im- court shall be peached superior acquitted. until of the the shall not exercise his office subject court shall also be to removal from office Supreme Court for such causes and in such manner as shall be 6, 6, Const, provided by art 4. law.” NJ § ¶ Supreme beyond a reasonable doubt that there is "If the Court finds removal, judge judge A so cause for removed shall not thereafter hold it shall remove the office. judicial office.”NJ Stat Ann 2A:1B- appeals judge justice by the shall be consid- "A or retired court voluntarily. judge justice by the ered to court of retired A removed have ineligible appeals to hold other office.” NY shall be 22(h). Const, art jurisdiction appeals and the commission “The of the court pursuant resigns notwithstanding judge that a to this article shall continue a determination of the commission that the from office after judge judge the chief be removed from officehas been transmitted to appeals, any or in in which the commission’s of the court of determination that transmitted to the chief hundred courts of the court of from office shall render such case should removed from office shall be appeals one of the court of within twenty days receipt by the the after the chief administrator of resignation judge. Any such determination appeals resigned that a who has should be removed judge ineligible any other to hold give shall written office.The chief administrator of the courts resignation any judge who is the notice to the commission of the receipt subject investigation days of an five after his thereof.” within § Law, 2A, (McKinney). Judiciary art NY Commission, may “Upon Supreme Court recommendation of the any judge willful censure or remove for willful misconduct duties, intemperance, persistent perform failure to his habitual and conviction of a crime cial to the administration disrepute. Upon prejudi- involving turpitude, or conduct moral brings justice into Commission, Supreme recommendation of the incapacity physical any judge for mental or remove 411 Mich by Dissenting Opinion Levin, J. In those the electorate has jurisdictions, ex pressed its that one has judgment who been re office again moved from should never be invested has, effect, public given with the trust and in up its own to power person re-elect such a after Michigan expressed removal. The electorate has similar sentiment except regard eligi with for bility legislative persons office of who have been convicted of or a felony.25 subversion Indeed it expressed a contrary regard sentiment in persons impeachment.26 removed by

We are asked to hold in adopting 30 the § electorate intended not only grant power remove their elected from order to protect their proper interest administration interfering performance duties, is, likely with the of his which or is become, permanent. physical incapac- A removed for mental or ity compensation is entitled to retirement if he has accumulated the years required incapacity disability creditable service for or retire- law, any provision ment under of State but he shall not sit as an justice emergency judge. or A removed for other than mental or physical incapacity compensation, receives no retirement and is dis- § qualified holding from further office.”NC Gen Stat 7A-376. justice "A or district convicted of misbehavior in office court, disbarred as a member of the bar of this Commonwealth or Subchapter (relating Board) removed under C and removal Inquiry Judicial automatically and Review shall forfeit his ineligible officeand thereafter be for office.”Pa Cons Ann, 42, Stat tit Supreme "The Court shall review the record of the on shown, the law permit censure, reject may, good and facts and in its discretion for cause public the introduction of additional evidence and shall order removal, just proper, retirement wholly or as it finds Upon involuntary recommendation. an order for retirement disability removal, for become vacant. The question or an order for the office in shall Supreme Court, involuntary in an order for disability removal, retirement person may prohibit or an order for such holding judicial rights office in the future. The of an incumbent so retired to retirement benefits shall be the same as if his Const, 1-a(9). voluntary.” 5, retirement had been Tex art 4, Const art 7.§ person "No shall be convicted without the concurrence two- serving. thirds of the Judgment senators elected and in case of conviction shall not extend further than removal from but the person Const punishment according convicted shall be liable to to law.” art 7.§ Matter Dissenting Opinion Levin, J.

of justice, but give up power also to their to re- elect judges to office after have removed. they been prevent the electorate from ever again exercising the effectively franchise favor particular of a greater is a much than granted power to suspend remove or to judge. greater power This has not been expressly state, granted in this should not be inferred. The grant unambiguous should be as other in. jurisdictions.

We thus conclude that this Court has no author- ity under 4 or 30 to Pro- permanently enjoin § § bert from holding judicial office.

B In light of the commission’s reliance upon this 4 power Court’s as authority imposing for disci § pline pursuant to 30 it proceedings, is necessary § to clarify powers granted this Court un der are distinct granted those under 30. § § It would be improper the commission or this Court to view 4 as expanding power to inves § tigate and discipline pursuant beyond § powers granted actually the commission and this Court by §

This case comes to the pursuant 30.§ The commission initiated investigation pursu- its ant to its authority under that section. The com- mission’s proceedings were or should have been limited by disciplines empowered it is to rec- ommend under not action whatever § Court could properly power take under 4. The § recommend impose discipline under 30 dif- § fers from this Court’s to act under 4. For § example, pursuant to 30 the Court remove a may § judge, although it not do so under 4.§ Mich Dissenting Opinion Levin, J. the distinction be The Court should blur authority superintending under 4 and tween its conjunction authority the Judi to act with its using § 30 Commission under cial Tenure discharge duties under this Court’s commission empowering §4, or the commission investi gate how this Court should exer and recommend to it under 4.27 cise the discretion entrusted C majority it The concludes that has the suspend” previous "conditionally on three because majority on occasions has done so. relies Mikesell,28 Rio,29 Bennett,30 Del in which in suspended for one and one- cumbent half were years, years year respectively and one five "regardless respondent’s possible intervening re any election to office or election to other state court”. majority

The states that the "effect of those suspensions disciplined disengage would have been to power,

party only from but had occupy judicial again that come to during suspension”. (Emphasis the term of the supplied.) pivotal This statement omits the distinc- tion between the cited and the instant case. cases nothing cases,

In each of the cited there was suspension "conditional” it about the at the time suspension operated separate was ordered. Each 27Turning proceeding effectively proceeding a 30 into a 4 § would § supplant procedure carefully investigating drafted and consid- for Court, ering misconduct in of 4 office which this in exercise its § powers, provided separate apart in GCR 930 from GCR implementing 932 30.§ 28 Mikesell, supra. In the Matter of 29 (1977). Rio, 665; In the Matter of Del 400 Mich 256 NW2d 727 (1978). Bennett, 178; In the Matter of 403 Mich NW2d In Matter Dissenting Opinion Levin, J.

an incumbent from the of the authority case, judicial office he held. In each then Court required was with regard sitting act required that be separated whose misconduct he authority his office. The Court ordered suspension. in the instant case majority ignores that in

suspensions ordered the cited cases were all sitting judges, and focuses on the period of suspen- ordered, i.e., sion that the judges suspended were periods longer than their terms of office. The order, however, alternative such an given that the Court had determined that it was neces- sary to separate from his office and that period the proper suspension was excess term, the judge’s would suspend have been to judge for the duration of his term preju- without dice to reinstituting should the judge be re-elected or appointed. Perhaps such bifurcated duplicative proceedings would have more closely conformed to the limitations In any event, there is no indication that consid- or, indeed, ered that possibility the Court considered the question for which the majority cites the cases as whether authority: autho- rizes imposition a suspension which has immediate effect.

Having determined was necessary separate judges Mikesell, Del Rio and Ben- nett from the judicial powers or offices then they held, the Court question was faced with the appropriate period of suspension. The threshold question case, contrast, in the instant how much discipline is appropriate but whether there to all. discipline at How the Court Mikesell, Del Rio and Bennett resolved the question impose of how much to not discipline Mich 210 by Dissenting Opinion Levin, J. this Court question the whether authority on discipline in the first instance. D of the Mikesell-Del treatment The majority’s only it is the Rio-Bennett cases is critical because author- approximates which argument of its aspect that, although for its conclusion support itative judge”, "of 30 provides § not a who is of a authorizes also of arguments disciplined. The other when 30 should in the nature what are majority § wisdom, authorize, policy a matter as adopted by people 30 as rather than what § authorize, matter of construction does as a intent of the amend- language used and ment. end asserts commis- majority

Thus the leaves office would sion when proceedings not "should have be "unwise” because proceedings "simply commission power” end are policy arguments properly office”. Such leaving They 30. cannot addressed framers a construction of be the sole basis for properly its meaning opposed which is normal doubt say Court can without language unless the or unreason- meaning the normal is so absurd intended. preclude having able as its been absurd, even do think it unreasonable We to terminate commission "unwise” when, "the essential majority, as stated keeping unfit purpose commission — judge’s off the bench” has been achieved * * * "simply leaving office”.31 Bar In this note that the American regard, we p Majority opinion, fn Matter Dissenting Opinion by Levin, J. appears Association adopted have just such an position "unwise” in its Relating Standards Judicial Discipline and Disability Retirement.32 3.1, Standard titled "Jurisdiction Sitting Over the judicial Judge”, provides that com disciplinary mission should have exclusive jurisdiction over the of sitting conduct judges.33 3.2, Standard titled "Jurisdiction Former Judge”, provides Over that the lawyer disciplinary agency should have juris lawyer longer diction over a who is no a judge for tenure, during conduct his judicial judi unless the cial discipline proceeding resulted a final determination.34 presented

The situation by the instant case— who ceases to hold office before a final determination has been reached in judi- cial proceedings appears be ad- — dressed by commentary Standard 3.2: by

"Action resulting the commission or the court resignation voluntary or retirement should not abe bar by lawyer to further disciplinary action agency involving unless, the same conduct. This is true on the court’s application own motion or judge, after opportunity notice and given heard is Relating Discipline ABA Standards Disability Judicial (Tentative Draft, 1977, approved Retirement ABA House of Dele- 1978). gates, February, provides: 3.1 Standard Sitting Judge. jurisdiction through "Jurisdiction Over Other than impeachment, jurisdiction the commission should have exclusive over sitting judges, part-time including judges. conduct all This jurisdiction prior should include conduct that occurred to a assuming judicial office.” provides: 3.2 Standard Judge. lawyer disciplinary agency "Jurisdiction Over Former jurisdiction allegedly lawyer longer should have over a who is no with during prior reference to unethical conduct that occurred lawyer provided to the time when the held such subject disciplinary conduct has not been the as to which a final determination has been made the court.” 411 Mich 210 Levin, J. Dissenting Opinion the court orders disciplinary agency, lawyer proceed further.” agency not disciplinary lawyer Standards, Thus, the ABA under judges is concerned with commission disciplinary lawyers, with disciplinary agency lawyer and the at time who were including lawyers misconduct, if judicial even alleged Although the commenced. had been authority division of "un- labels such a majority "unwarranted”, as sim- impresses it us wise” and and, more important, what is ple appropriate and of authority the division precisely to be seems the 30, as from both lan- by appears intended § section, speaks "of of the which guage of, in understanding an the and from judge”, words, purpose "the essential the majority’s off keeping judges unfit the bench”. commission — the the ABA As in one reference to indicated the purpose the by majority, Standards made rather, but, punish is not to to judicial correct: major discipline is not to purpose judicial "[T]he protect

punish judges, integrity public, preserve the the but public judicial process, maintain confi- the greater judiciary, the create a awareness dence in and part judges proper judicial of selves.” ABA behavior on the them- Standards, supra, p 2. The protected integrity is the public preserved preventing process by judicial confidence judicial authority. abuse of Public are integrity” and "institutional judiciary fostering expectation the belief and by maintained will that those the courts appearing before before with and that treated fairness their That will not abuse office. they appear whom op Probert Matter Dissenting Opinion Levin, J. preventive is fostered expectation belief position are against persons who action a defeated Disciplining judicial power. abuse (the or the "institution” protects public neither that belief and nor does foster justice system) no judi- one who has against Action expectation. promote public’s does not to abuse cial have judicial those who do confidence not abuse it. will pun- "discipline” majority ordered

The ishment, purpose is not discipline. primary Its but judicial authority the abuse of prevent we may that has occurred. While react to abuse denominates majority that what agree of Pro- judicial perfidy” misconduct and "egregious authorizes punishment, bert warrants suspension agree We cannot discipline. office of one who is not a is, conduct censure which cannot correct sense, discipline. proce- any proper employed provide dure of 30 should not be however, proclaim displeasure, justified, means with misconduct. in

The Judicial Tenure Commission dissenters this case said: "Historically, during pendency of formal both issuance,

complaints immediately preceding their the commission has declined to act further after termi- respondent’s judicial by resignation, by nation of a failure E.g., Matter of by be re-elected or death. Grimm, 22; Kapcia, Complaint Formal No. Matter of 17; Gruenburg, Complaint Formal No. Matter of Formal Riebel, 14; Complaint Complaint Formal No. Matter Maras, 13; Complaint 3. In No. fact, Matter of Formal No. Riebel, supra, the final commission resolution unanimously dismissed the because respon- jurisdiction’ by commission 'lost virtue resignation. dent’s 411 Mich Levin, J. Dissenting Opinion require good reason both this "Consistency and public interest and the interest

policy continue. judiciary are not maintaining good name of airings allegations public served proofs ceeding further pro- Continuation of this misconduct. phrase 'beating in the true sense of the judgeship is terminated Clearly, once the dead horse.’ element ceases to exist.” jurisdictional the fundamental V there- longer Charles Probert is no discipline him. The present fore there is no need to becoming a again of Probert ever chances have, nil. We Michigan appear virtually however, replete a full record with the details of regain his conduct. Should he ever record will be available evaluation with evidence along Judicial Tenure Commission to his interim conduct. pertaining motion to dismiss grant We would Probert’s to the Judicial Tenure Commis- prejudice without based in authority sion’s to recommend record Probert ever part on the instant should regain judicial office.

Kavanagh, J., Levin, J. concurred with

Case Details

Case Name: In the Matter of Probert

Court Name: Michigan Supreme Court

Date Published: Jun 19, 1981

Citation: 308 N.W.2d 773

Docket Number: 61331, (Calendar No. 1)

Court Abbreviation: Mich.