in Re Hon J Cedric Simpson ( 2017 )

Michigan Supreme Court
Lansing, Michigan
Syllabus
Chief Justice: Justices:
Stephen J. Markman Brian K. Zahra
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
Joan L. Larsen
Kurtis T. Wilder
This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader. Kathryn L. Loomis
In re SIMPSON
Docket No. 150404. Argued October 6, 2016 (Calendar No. 1). Decided July 25, 2017.
The Judicial Tenure Commission (JTC) filed a formal complaint against 14-A District
Court Judge J. Cedric Simpson, alleging three counts of judicial misconduct arising from an
incident that occurred in Pittsfield Township on September 8, 2013. Around 4:22 a.m. on that
date, Crystal M. Vargas, one of respondent’s interns, was involved in a motor vehicle accident
near respondent’s home. Vargas immediately called respondent, and he arrived at the scene
approximately 10 minutes after the accident had occurred. As the investigating officer was
administering a field sobriety test, respondent identified himself to the officer as a judge, had a
conversation with Vargas without the officer’s permission, and asked the officer whether Vargas
needed a ride. The investigating officer administered a preliminary breath test (PBT) to Vargas,
which indicated that Vargas had a breath-alcohol content (BAC) over the legal limit, and she was
placed under arrest. Later breathalyzer tests also indicated that Vargas’s BAC was over the legal
limit but showed a lower BAC than did the PBT. Respondent contacted the township attorney
who would be handling Vargas’s case, said that Vargas was his intern, and noted that Vargas
would likely be involved in one of the attorney’s upcoming mediation cases. Respondent also
observed the discrepancy between the PBT and the breathalyzer results and requested a copy of
the police report. Respondent later contacted the attorney to discuss defense attorneys Vargas
might retain. After an investigation into respondent’s conduct, the JTC filed its formal complaint
alleging that respondent had interfered with the police investigation into the accident, interfered
with Vargas’s prosecution, and made misrepresentations to the JTC. The Honorable Peter Houk,
the master appointed to the case, found by a preponderance of the evidence that respondent’s
actions constituted judicial misconduct on all three counts. The JTC agreed with these findings
and concluded that respondent’s conduct violated the Michigan Code of Judicial Conduct and
also constituted misconduct in office and conduct clearly prejudicial to the administration of
justice under Const 1963, art 6, § 30(2). The JTC recommended that respondent be removed
from office and that costs of $7,565.54 be imposed on him. Respondent petitioned the Supreme
Court, requesting that it reject or modify the JTC’s decision and recommendation. Respondent
also moved for a remand to the JTC to consider some allegedly exculpatory information he had
not received but that had been disclosed to the JTC examiner. The Supreme Court remanded the
case to the JTC, the JTC remanded the case to the master, and the master decided that his
previous findings were unaffected by the new evidence. The JTC also decided that the evidence
did not affect its decision and recommendation. Respondent’s petition to reject or modify the
JTC’s decision and recommendation remained before the Court.
In an opinion by Justice VIVIANO, joined by Justices MCCORMACK, BERNSTEIN, and
LARSEN, the Supreme Court held:
The JTC correctly found that respondent committed judicial misconduct, but it erred by
concluding that removal from office was warranted. A suspension of nine months without pay
was proportional to the misconduct. Respondent was properly ordered to pay costs of $7,565.54
because he engaged in conduct involving “intentional misrepresentations” or “misleading
statements” under MCR 9.205(B).
1. The JTC properly concluded that the first two allegations of judicial misconduct
against respondent—interference with the police investigation and interference with the
prosecution—were proved by a preponderance of the evidence. With respect to the first
allegation, the facts showed that respondent approached Vargas and the investigating officer as
sobriety tests were being performed and interrupted the sobriety-testing process. Given that
respondent was certainly aware that the officer was investigating whether Vargas was under the
influence of alcohol or a controlled substance, when respondent introduced himself to the officer
as “Judge Simpson,” he either failed to prudently guard against influencing the investigation or
used his judicial office in an effort to interfere with it. Next, respondent spoke to Vargas during
the investigation without the officer’s permission. Finally, respondent’s question regarding
whether Vargas simply needed a ride was a transparent suggestion to the officer to end his
investigation and allow respondent to drive Vargas away from the scene. Respondent’s behavior
at the accident scene constituted judicial misconduct because he used his position as a judge in
an effort to scuttle a criminal investigation of his intern. With respect to the second allegation,
the evidence indicated that respondent interfered with the prosecution by improperly acting as
Vargas’s legal advocate. Respondent succeeded in delaying the issuance of charges against
Vargas when he convinced the township attorney to hold off on the case. Respondent consulted
the township attorney about the best defense attorney to represent Vargas, raised a question
about the discrepancy between the results of the PBT and the breathalyzer, and requested a copy
of the police report.
2. With respect to the third allegation—misrepresentations to the JTC—the JTC’s
finding that respondent made an intentional misrepresentation or a misleading statement when he
testified under oath that he had not had contact with Vargas between midnight and 4:00 a.m. on
the morning of the accident was not proved by a preponderance of the evidence. Although
respondent’s testimony about contacts during that time frame was inaccurate, his testimony
suggested that he was uncertain about the contact, not that he intentionally misrepresented
whether he and Vargas had contact. However, the JTC’s finding that respondent made an
intentional misrepresentation or a misleading statement with regard to the purpose of the
thousands of text messages and phone calls he and Vargas exchanged from August 2013 through
November 2013 was proved by a preponderance of the evidence. Respondent admitted to the
voluminous contacts between himself and Vargas but indicated that the majority of the contacts
concerned a complex case Vargas was working on for respondent, but the record indicated that
respondent and Vargas had already engaged in an excessive amount of communication before
respondent received the evidence in the complex case. Accordingly, the JTC’s finding that
respondent had made an intentional misrepresentation or a misleading statement was proved by a
preponderance of the evidence. Although the JTC’s findings were not based on facts alleged in
the complaint, because respondent did not challenge the JTC’s findings on that basis, it was
unnecessary to decide whether the JTC’s consideration of facts not alleged in the complaint was
improper.
3. Respondent’s interference with the police investigation and prosecution of his intern
along with the intentional misrepresentation or misleading statement he made in his answer to
the complaint in explaining the nature of the extensive communications between him and Vargas
warranted a nine-month suspension without pay and the imposition of costs. The JTC was
generally correct in concluding that four of the seven factors set forth in In re Brown, 461 Mich
1291 (2000), weighed in favor of a more severe sanction. However, the Court’s overriding duty
in deciding the appropriate sanction to impose in judicial disciplinary proceedings is to treat
equivalent cases of misconduct in an equivalent manner and unequivalent cases in a
proportionate manner. The Supreme Court has consistently imposed the most severe sanction of
removal on judges who testified falsely under oath. In this case, respondent’s false statement
regarding the nature of his extensive communications with Vargas was given in the answer to the
complaint. The JTC did not prove that respondent’s answer was verified as required by MCR
9.209(B)(1), and so it could not establish that the answer was given under oath. Accordingly, the
most severe sanction of removal was not warranted in this case. Respondent’s case was most
akin to In re Lawrence, 417 Mich 248 (1983), because, in both cases, the respondent’s
misconduct included misuse of the judicial office to benefit another and a nontestimonial
misrepresentation. Because the respondent in Lawrence was suspended without pay for nine
months for similarly serious misconduct, an unpaid suspension of nine months was warranted in
this case and was sufficient to protect the public from this type of judicial misconduct in the
future. Under MCR 9.205(B), in addition to any other sanction imposed, a judge may be ordered
to pay the costs, fees, and expenses incurred by the JTC in prosecuting the complaint if the judge
engaged in conduct involving fraud, deceit, or intentional misrepresentation or if the judge made
misleading statements to the JTC, the JTC’s investigators, the master, or the Supreme Court.
Because respondent engaged in conduct involving “intentional misrepresentation” or
“misleading statements” under MCR 9.205(B), the JTC properly requested imposition of the
costs, fees, and expenses it incurred in prosecuting the complaint.
4. Contrary to the suggestion of the partial dissent, there are many reasons not to address
allegations of misconduct that were not found and recommended to the Court by the JTC. In
particular, In re Mikesell, 396 Mich 517 (1976), held that to do so would violate our state’s
Constitution. It would also violate the court rules, which suggest that the Court has the authority
only to accept or reject the recommendations of the JTC unless they relate to the sanction.
Further, a respondent judge is entitled to notice of the charges and a reasonable opportunity to
respond to them. Without such notice, it is not clear how a respondent judge would know which
charges are at issue and, therefore, which ones he or she should substantively address when a
case proceeds to the Michigan Supreme Court. Whatever could be said about such a regime, it
would not provide a full panoply of procedural guarantees for adjudicating allegations of judicial
misconduct.
Nine-month suspension without pay and costs of $7,565.54 imposed.
Chief Justice MARKMAN, joined by Justice ZAHRA, concurring in part and dissenting in
part, would have considered an additional two occasions on which respondent lied under oath—
without regard to the fact that the two lies were not reflected in the complaint’s allegations or the
JTC’s recommendation—and weighed them accordingly to determine respondent’s proper
sanction. Respondent falsely responded, under oath, to a question before the master about his
purpose in going to the accident scene, and he also gave a false explanation in his sworn
testimony before the master to explain his purpose for calling the township attorney. The
majority’s rationale for not taking the two sworn lies into consideration is apparently that neither
instance of misconduct was specifically alleged in the JTC’s recommendation. These additional
lies are further examples of the misconduct with which respondent is charged and, if taken into
consideration, would increase the sanction imposed on respondent. Nothing in past caselaw
supports the majority’s implicit reasoning for its failure to consider the two additional lies.
Misconduct discernable from the record does, under Michigan law, constitute a basis on which
this Court may impose judicial discipline, even if that misconduct is not specifically identified in
the JTC’s recommendation. Morever, respondent in the instant case would suffer no prejudice or
any miscarriage of justice were this Court to hold him accountable for his lies offered while
under oath. Respondents are aware of their obligation to tell the truth in disciplinary proceedings
and that they could be disciplined for false testimony. A respondent should also not be given a
lesser sanction for a false statement in answer to the complaint’s allegations simply because the
JTC has failed to prove that the respondent’s answers were verified. Any untrue statement by a
respondent frustrates this Court’s constitutional obligation to uphold the integrity and reputation
of the judiciary. An appropriate sanction in this case should take into account all of respondent’s
lies.
Justice WILDER took no part in the decision of this case.
©2017 State of Michigan
Michigan Supreme Court
Lansing, Michigan
OPINION
Chief Justice: Justices:
Stephen J. Markman Brian K. Zahra
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
Joan L. Larsen
Kurtis T. Wilder
FILED July 25, 2017
STATE OF MICHIGAN
SUPREME COURT
In re Honorable J. CEDRIC SIMPSON,
Judge, 14A District Court.
No. 150404
BEFORE THE ENTIRE BENCH (except WILDER, J.)
VIVIANO, J.
This case is before this Court on the recommendation of the Judicial Tenure
Commission (JTC) that respondent, 14A District Court Judge J. Cedric Simpson, be
removed from office and ordered to pay $7,565.54 in costs. Respondent has filed a
petition requesting that this Court reject or modify the recommendation. After reviewing
the record and considering the parties’ arguments, we agree with the JTC that respondent
committed judicial misconduct and that the imposition of costs is warranted. However,
we disagree with the JTC that removal from office is warranted. Instead, we conclude
that a nine-month suspension without pay is the appropriate sanction.
I. FACTS
Respondent is a judge of the 14A District Court and therefore subject to the
Michigan Code of Judicial Conduct. He has no history of misconduct. At the time
relevant to this case, he was an adjunct professor at the Ann Arbor campus of Western
Michigan University Cooley Law School. During the 2013 summer term, Crystal Vargas
was a student in respondent’s Pretrial Skills class. In June 2013, Ms. Vargas sought an
internship with respondent in the 14A District Court. Respondent accepted Ms. Vargas,
and she started her internship on July 10, 2013. Within days, respondent and Ms. Vargas
began communicating with each other by telephone call and text message on a frequent
basis. Cellular records indicate that several thousand communications were exchanged
between respondent and Ms. Vargas from July 23, 2013, to November 30, 2013. Those
communications were exchanged at all times of the day and night and on weekends as
well.
On September 7, 2013, respondent and Ms. Vargas exchanged seven phone calls
and numerous text messages. This was consistent with their pattern of communication
during that summer and fall. On September 8, 2013, respondent and Ms. Vargas
exchanged six text messages between 1:25 a.m. and 2:29 a.m., and they exchanged an
additional six text messages between 4:20 a.m. and 4:23 a.m. At about the time the latter
group of text messages was exchanged, Ms. Vargas was involved in a motor vehicle
2
accident at the intersection of Platt Road and Michigan Avenue, less than two miles from
respondent’s home. Ms. Vargas called respondent at 4:24 a.m., shortly after the accident.
Within a few minutes, while Ms. Vargas was still on the phone with respondent,
Pittsfield Township Police Officer Robert Cole arrived at the scene and began
investigating whether Ms. Vargas was under the influence of alcohol. At about 4:30
a.m., as Officer Cole was administering field sobriety tests to Ms. Vargas, respondent
arrived at the scene. Respondent approached Officer Cole and identified himself as
“Judge Simpson.” Officer Cole recognized respondent as a judge, stopped the tests,
walked toward respondent, and proceeded to briefly explain that Ms. Vargas had been
involved in an accident. 1 Respondent then approached Ms. Vargas without Officer
Cole’s permission and had a brief conversation with her. Officer Cole informed
respondent that Ms. Vargas was okay and that he wanted to determine whether she was
fit to drive. Respondent asked, “Well, does she just need a ride or something?”
Respondent moved away from the immediate vicinity, and Officer Cole continued with
the sobriety tests. Based on the results of the tests, Officer Cole administered a
preliminary breath test (PBT) to Ms. Vargas. The PBT indicated that Ms. Vargas had a
breath-alcohol content (BAC) of 0.137%, and Officer Cole placed her under arrest.
1
Officer Cole later testified during the JTC proceedings that when a family member or
friend arrives at the scene of such an investigation, he is trained to “tell them that I’ll be
back with them in ten or fifteen minutes, whenever I’m done figuring out if they’ve been
drinking or not, and then go back and make contact with them.” However, Officer Cole
did not do so in this case “[b]ecause he’s not just a family member. He’s Judge Simpson,
so I’m going to talk with him.”
3
Afterward, respondent left the scene, and Ms. Vargas was transported to the
Pittsfield Township Police Department. Because Officer Cole had never had a judge
appear at an investigation scene, he promptly informed his supervisor, Sergeant Henry
Fusik, about respondent’s appearance. Sergeant Fusik, in turn, informed the Director of
Public Safety, Chief Matthew Harshberger, about the situation. Sergeant Fusik instructed
Officer Cole to process Ms. Vargas’s case as he would any other case. Officer Cole
subsequently administered two breathalyzer tests to Ms. Vargas, both of which indicated
a BAC of 0.10%.
On September 10, 2013, the day before the police department issued a warrant
request to Pittsfield Township Attorney Victor Lillich, Mr. Lillich received a telephone
call from respondent. According to Mr. Lillich, respondent told him during the telephone
conversation that Ms. Vargas was his intern and a “good kid” who was in a “pretty bad
relationship.” Respondent also told Mr. Lillich that Ms. Vargas “would be the one who
would probably be doing some of the work” on an upcoming mediation case with which
Mr. Lillich was involved. In addition, respondent observed that there was a discrepancy
between the PBT and the breathalyzer results. Mr. Lillich responded that the discrepancy
“would not be a big concern” in his decision to issue charges. Respondent requested, and
Mr. Lillich agreed to provide him with, a copy of the police report.
On September 15, 2013, Mr. Lillich e-mailed the police report to respondent. In
the e-mail, Mr. Lillich advised respondent that the case presented “nothing out of the
4
ordinary” beyond the discrepancy between the PBT and the breathalyzer results, and Mr.
Lillich stated that he “would be authorizing an OWI 1st” charge against Ms. Vargas. 2
On September 17, 2013, respondent again called Mr. Lillich. According to Mr.
Lillich, the “conversation was primarily about” criminal defense attorneys. In particular,
Mr. Lillich explained that he and respondent discussed the names of “good defense
attorneys” that Ms. Vargas could retain. Additionally, Mr. Lillich agreed to “sit” on the
case until Ms. Vargas retained an attorney.
In October 2013, Chief Harshberger sent an e-mail to Mr. Lillich inquiring about
the status of the Vargas case. Mr. Lillich replied that he was “sitting on” the case “out of
respect and defference [sic] to Judge Simpson.” A few days later, however, Mr. Lillich
returned the case to the Pittsfield Township Police Department as “denied,” with a
notation to refer the case to the county prosecutor. The return document indicated that
Mr. Lillich disqualified himself from the case “to avoid any inference of impropriety”
because respondent had contacted him regarding “his intern, Crystal Vargas.” 3
The JTC investigated respondent for his conduct related to the Vargas case. On
November 12, 2014, the JTC filed a formal complaint against respondent, alleging that he
had committed the following three counts of misconduct: (1) interfering with a police
2
That is, Mr. Lillich indicated that he would authorize a charge of operating while
intoxicated (OWI), first offense, under MCL 257.625(1).
3
On October 28, 2013, the Pittsfield Township Police Department resubmitted the
Vargas warrant request to the Washtenaw County Prosecutor’s Office, and within a week,
Ms. Vargas was charged with OWI, first offense. Following the disqualification of the
entire 14A District Court bench, a visiting judge from the 53d District Court was
assigned to the case. On January 8, 2014, Ms. Vargas pleaded guilty as charged.
5
investigation, (2) interfering with a prosecution, and (3) making misrepresentations to the
JTC. On December 17, 2014, this Court appointed the Honorable Peter Houk to serve as
master. The master conducted a three-day hearing and then issued his report on April 28,
2015, finding that each of the three counts of misconduct was proved by a preponderance
of the evidence.
On September 1, 2015, the JTC issued its decision and recommendation for
discipline. The JTC found by a preponderance of the evidence that respondent interfered
with a police investigation, interfered with a prosecution, and made intentional
misrepresentations or misleading statements to the JTC. Further, the JTC concluded that
the misconduct constituted “misconduct in office” and “conduct . . . clearly prejudicial to
the administration of justice,” Const 1963, art 6, § 30(2), 4 and that respondent violated
4
Const 1963, art 6, § 30(2) states as follows:
On recommendation of the judicial tenure commission, the supreme
court may censure, suspend with or without salary, retire or remove a judge
for conviction of a felony, physical or mental disability which prevents the
performance of judicial duties, misconduct in office, persistent failure to
perform his duties, habitual intemperance or conduct that is clearly
prejudicial to the administration of justice. The supreme court shall make
rules implementing this section and providing for confidentiality and
privilege of proceedings.
6
the Michigan Code of Judicial Conduct Canons 1, 5 2(A), 6 and 2(B), 7 as well as
MCR 9.104(1), (2), (3), and (4). 8 In determining the appropriate recommended sanction,
5
Canon 1 states, in relevant part, as follows:
An independent and honorable judiciary is indispensable to justice in
our society. A judge should participate in establishing, maintaining, and
enforcing, and should personally observe, high standards of conduct so that
the integrity and independence of the judiciary may be preserved. A judge
should always be aware that the judicial system is for the benefit of the
litigant and the public, not the judiciary.
6
Canon 2(A) states as follows:
Public confidence in the judiciary is eroded by irresponsible or
improper conduct by judges. A judge must avoid all impropriety and
appearance of impropriety. A judge must expect to be the subject of
constant public scrutiny. A judge must therefore accept restrictions on
conduct that might be viewed as burdensome by the ordinary citizen and
should do so freely and willingly.
7
Canon 2(B) states, in relevant part, as follows:
A judge should respect and observe the law. At all times, the
conduct and manner of a judge should promote public confidence in the
integrity and impartiality of the judiciary.
8
MCR 9.104 states, in relevant part, as follows:
The following acts or omissions by an attorney, individually or in
concert with another person, are misconduct and grounds for discipline,
whether or not occurring in the course of an attorney-client relationship:
(1) conduct prejudicial to the proper administration of justice;
(2) conduct that exposes the legal profession or the courts to
obloquy, contempt, censure, or reproach;
(3) conduct that is contrary to justice, ethics, honesty, or good
morals;
7
the JTC assessed the factors set forth in In re Brown 9 and concluded that the misconduct
implicated four of the seven Brown factors and thus “a more severe sanction” was
warranted. The JTC then concluded “that removal from office [was] an appropriate and
proportional sanction for Respondent’s misconduct.” In addition, the JTC requested the
imposition of costs in the amount of $7,565.54 because “Respondent made intentional
misrepresentations or misleading statements to the [JTC] in his answer to the formal
complaint, and during his testimony at the public hearing.” 10
Thereafter, respondent filed a petition in this Court to reject or modify the JTC’s
decision and recommendation. In addition, respondent filed a motion to remand to the
JTC for further proceedings based on allegedly exculpatory information that was
disclosed as a result of a Freedom of Information Act (FOIA) request to the Pittsfield
Township Department of Public Safety. Respondent claimed that the FOIA request
revealed significant exculpatory evidence concerning the first two counts of the
complaint that had been disclosed to the JTC examiner but not to respondent. 11 We
remanded the case to the JTC. The JTC, in turn, remanded the case to the master for a
(4) conduct that violates the standards or rules of professional
conduct adopted by the Supreme Court[.]
9
In re Brown, 461 Mich 1291, 1291-1293; 625 NW2d 744 (2000).
10
According to the JTC, the $7,565.54 amount represented “the costs, fees, and expenses
incurred by the [JTC] in prosecuting the complaint. See MCR 9.205(B).”
11
For instance, the alleged exculpatory evidence included a September 8, 2013 e-mail
from Chief Harshberger to Sergeant Fusik stating that Officer Cole had “handled
everything by the numbers.”
8
determination of whether the evidence would alter his findings, how the nondisclosure
occurred, and the reasons for the nondisclosure. After conducting a two-day hearing, the
master concluded that the evidence did not alter his previous findings. In addition, the
JTC concluded that the evidence did not affect its decision and recommendation. 12
Respondent’s petition to modify or reject the JTC’s decision and recommendation is now
before this Court.
II. STANDARD OF REVIEW
“Judicial tenure cases come to this Court on recommendation of the JTC, but the
authority to discipline judicial officers rests solely in the Michigan Supreme Court.” 13
This Court reviews de novo the JTC’s findings of fact, conclusions of law, and
recommendations for discipline. 14 “The Court may accept or reject the recommendations
of the JTC or modify them by imposing greater, lesser, or entirely different sanctions.” 15
The examiner has the burden to prove each allegation of judicial misconduct by a
preponderance of the evidence. 16 “ ‘[I]t is the JTC’s, not the master’s conclusions and
recommendations that are ultimately subject to review by this Court.’ ” 17
12
Although we agree with the master and the JTC that this evidence was improperly
withheld, we also agree that it does not materially exculpate respondent.
13
In re Morrow, 496 Mich 291, 298; 854 NW2d 89 (2014).
14
Id.15
In re James, 492 Mich 553, 559-560; 821 NW2d 144 (2012).
16
In re Morrow, 496 Mich at 298.
17
In re Adams, 494 Mich 162, 170 n 8; 833 NW2d 897 (2013), quoting In re
Chrzanowski, 465 Mich 468, 481; 636 NW2d 758 (2001) (alteration in original).
9
III. ANALYSIS
A. FINDINGS OF FACT
1. COUNT 1: INTERFERENCE WITH THE POLICE INVESTIGATION
The JTC concurred with the master’s finding with respect to Count 1, stating that
“a preponderance of the evidence showed that Respondent used his judicial office to
interfere, or to attempt to interfere, with the police investigation.” We agree.
The facts show that respondent exited his vehicle and approached Ms. Vargas and
Officer Cole as sobriety tests were being performed. Indeed, respondent interrupted the
sobriety-testing process. Respondent, who had prosecuted numerous drunk-driving cases
on behalf of Superior Township before he became a judge, was certainly aware that
Officer Cole was investigating whether Ms. Vargas was under the influence of alcohol or
a controlled substance. Given these circumstances, when respondent began his
interaction with Officer Cole by introducing himself as “Judge Simpson,” he appears at
best to have failed to prudently guard against influencing the investigation and at worst to
have used his judicial office in a not-so-subtle effort to interfere with the investigation.
Indeed, but for respondent’s status as a judge, Officer Cole would not have spoken to
respondent until Officer Cole completed his investigation. Next, respondent spoke to Ms.
Vargas during the investigation without Officer Cole’s permission—another action an
ordinary citizen would not have been permitted to take. Finally, respondent’s question—
“Well, does she just need a ride or something?”—was a transparent suggestion to Officer
10
Cole to end his investigation and allow respondent to drive Ms. Vargas away from the
scene. 18
We believe that respondent’s behavior at the accident scene constitutes judicial
misconduct. Respondent used his position as a judge in an effort to scuttle a criminal
investigation of his intern. Count 1 was proved by a preponderance of the evidence.
2. COUNT 2: INTERFERENCE WITH THE CRIMINAL PROSECUTION
The JTC concurred with the master’s finding with respect to Count 2, stating that
“a preponderance of the evidence showed that Respondent interfered, or attempted to
interfere, with the prosecution of the criminal case against Ms. Vargas.” We agree.
The facts show that before Mr. Lillich, the township prosecutor, had even received
a warrant request, respondent contacted him to discuss his intern’s arrest. 19 Respondent
described Ms. Vargas as a “good kid” who was in a “pretty bad relationship.” In
addition, respondent reminded Mr. Lillich that he had met Ms. Vargas in the past and
would be working with her in the future. Finally, respondent raised an evidentiary
issue—the discrepancy between the PBT and breathalyzer results. We believe
respondent’s purpose in making these statements was to advocate on behalf of Ms.
Vargas and to persuade Mr. Lillich to deny the impending warrant request.
18
As stated by the master, “Respondent’s question clearly implies that he [was] available
to short circuit the process.”
19
Because Mr. Lillich appeared in respondent’s court, he was obviously aware of
respondent’s status as a judge.
11
After receiving a copy of the police report, respondent again contacted Mr. Lillich.
During this conversation, as found by the master and the JTC, respondent discussed with
Mr. Lillich potential defense attorneys to represent Ms. Vargas. In addition, the
conversation resulted in Mr. Lillich’s agreeing to “sit” on the case until Ms. Vargas
retained an attorney who could discuss any potential “problems” with the case. Several
weeks later, when Chief Harshberger inquired about the status of the case, Mr. Lillich
acknowledged respondent’s involvement in the matter and stated that he was “sitting on”
the case out of respect and deference to respondent. Indeed, respondent’s involvement in
the case was cited as the reason that Mr. Lillich denied authorization of the warrant and
disqualified himself.
We believe that each of these actions—individually and taken together—
constitutes judicial misconduct. Respondent improperly acted as a legal advocate for Ms.
Vargas and used his position as a judge to thwart the township’s criminal prosecution of
his intern. And he succeeded for a time in delaying the issuance of the charges. Count 2
was proved by a preponderance of the evidence.
3. COUNT 3: MISREPRESENTATIONS
With respect to Count 3, we are confronted with an unusual circumstance: None of
the JTC’s findings is traceable to the allegations of misconduct in the complaint. 20 The
20
Indeed, both of the remaining allegations relate to facts occurring after the complaint
was filed—the evidence on which the JTC relies is the answer to the complaint and a
small portion of respondent’s testimony under oath at the public hearing. It is clear that
the JTC can proceed on additional charges arising after the complaint is filed, see e.g.,
MCR 9.209(B)(2) (“Wilful concealment, misrepresentation, or failure to file an answer
and disclosure are additional grounds for disciplinary action under the complaint.”). But
MCR 9.213 provides the proper procedure for giving a respondent notice of the JTC’s
12
JTC’s allegations concerning respondent’s alleged misrepresentations are contained in
¶¶ 64-85 of the complaint. Although the master found that certain of these allegations
were proved by a preponderance of the evidence and that others were not, 21 the JTC did
intention to amend the complaint. If the complaint is amended, the respondent must be
given an opportunity to defend against the charges. MCR 9.213 provides:
The master, before the conclusion of the hearing, or the commission,
before its determination, may allow or require amendments of the
complaint or the answer. The complaint may be amended to conform to the
proofs or to set forth additional facts, whether occurring before or after the
commencement of the hearing. If an amendment is made, the respondent
must be given reasonable time to answer the amendment and to prepare and
present a defense against the matters charged in the amendment.
Like the JTC, we have declined to address charges that are not formally charged in the
complaint. See In re Hocking, 451 Mich 1, 4-5; 546 NW2d 234 (1996) (“The
commission also found a ‘strong indication of a pattern of gender bias,’ but refused to
make a formal finding in this regard because gender bias was not an allegation formally
charged in the complaint.”); id. at 24 (“Thus, because the complaint did not charge, and
the evidence does not establish, gender bias, we agree that such a conclusion is
inappropriate.”). See also In re Hague, 412 Mich 532, 563 n 11; 315 NW2d 524 (1982)
(“The supplemental complaint to Formal Complaint No. 23 is the sole basis for the
Court’s [findings of misconduct] in this case.”).
In this case, no amended complaint was filed. However, because respondent has
not challenged the JTC’s findings on this basis, we need not decide whether the JTC
improperly considered facts not alleged in the complaint.
21
The master made no findings of misconduct regarding the misrepresentations alleged in
¶¶ 64-67 of the complaint (regarding respondent’s statements to the JTC about his
contacts and relationship with Ms. Vargas), instead focusing, like the JTC did in its
findings, on respondent’s answer to ¶ 65, which is discussed in more detail later in this
opinion. The master found that the allegations in ¶¶ 68-69 of the complaint (regarding
respondent’s reason for appearing at the accident scene) were proved by a preponderance
of the evidence. The master did not address the allegations in ¶¶ 70-71 (regarding
whether respondent spoke with Officer Cole while Officer Cole was administering
sobriety tests to Ms. Vargas). The master found that the allegations in ¶¶ 72-75
(regarding whether respondent was truthful in his correspondence with the JTC
concerning whether his actions at the scene intruded on Officer Cole’s investigation and
13
not adopt any of these findings. Instead, the JTC made two additional findings not based
on the allegations in the complaint, only one of which was addressed by the master.
In particular, the JTC found that respondent made “an intentional
misrepresentation or misleading statement when he testified under oath at the public
hearing that he had no contact with Ms. Vargas between midnight and 4:00 a.m. on
September 8, 2013.” The JTC also found that respondent made “an intentional
misrepresentation or a misleading statement” in his answer to ¶ 65 of the complaint
regarding the purpose of the large volume of telephone calls and text messages he
exchanged with Ms. Vargas between August 1, 2013, and November 30, 2013. Because
we have long held that our focus in judicial disciplinary proceedings is on the JTC’s
findings, 22 it is to those findings that we now turn.
whether he asked for, suggested, or implied that he wanted special treatment for Ms.
Vargas), were proved by a preponderance of the evidence. The master found that the
allegations in ¶¶ 76-79 (regarding whether respondent was truthful in his correspondence
with the JTC concerning whether Ms. Vargas showed up at his home unexpectedly after
her release from jail, and whether he only had “snippets” of conversations with Ms.
Vargas after the date of the accident) were not proved. Finally, with respect to the
allegations in ¶¶ 80-85 (regarding whether respondent was truthful in his correspondence
with the JTC concerning the purpose of his interactions with the township attorney), the
master concluded that respondent “was not truthful in his answers” for the reasons
expressed elsewhere in the master’s report.
22
See In re Mikesell, 396 Mich 517, 524-526; 243 NW2d 86 (1976). In In re Mikesell,
we explained that “[u]nder Const 1963, art 6, § 30(2), this Court may take action against
a judge ‘[o]n the recommendation of the judicial tenure commission.’ ” Id. at 524
(second alteration in original). Applying the rule in that case, the Court explained:
Thus, while the original complaint filed against the respondent contained
14 paragraphs of which 12 were allegations of misconduct, this Court
concerns itself only with paragraphs 9-14 of the complaint. The
Commission adopted and confirmed the report of the Master in all respects.
The Master found that the allegations of paragraphs 3-8 of the complaint
14
The JTC first found that “[r]espondent made an intentional misrepresentation or
misleading statement when he testified under oath at the public hearing that he had no
contact with Ms. Vargas between midnight and 4:00 a.m. on September 8, 2013.” In
particular, the JTC found that the following exchange constituted a misrepresentation or
misleading statement under oath:
Examiner: Did you have any contact with Ms. Vargas between
midnight and 3:30 that morning?
Respondent: Which morning?
Examiner: I’m sorry. On the day that she was -- on the morning she
was arrested, did you have any contact with her between midnight and 3:30
or 4:00 that morning?
Respondent: No.
Examiner: And when you say no, that’s not by text messages or
anything else; correct?
Respondent: I don’t believe there were any text messages. I don’t
believe that there was any contact.
In fact, telephone records indicated that respondent and Ms. Vargas exchanged six text
messages between 1:25 a.m. and 2:29 a.m. on September 8, 2013. Thus, respondent did
not provide accurate information when he testified that he did not have any contact with
Ms. Vargas during that time frame.
were not proven. They are not part of the recommendation of the
Commission and will not be considered by this Court. [Id. (emphasis
added).]
See also In re Chrzanowski, 465 Mich at 481 (“[P]ursuant to [Const 1963, art 6, § 30(2)],
it is the JTC’s, not the master’s conclusions and recommendations that are ultimately
subject to review by this Court.”).
15
Nonetheless, it is not clear that respondent made an intentional misrepresentation
to the JTC through this testimony. After answering “no” to the examiner’s question
about whether he had any contact with Ms. Vargas between midnight and 3:30 or 4:00 on
the morning at issue, respondent equivocated by adding that he did not “believe” that
there was any communication. 23 Moreover, respondent acknowledged during the hearing
that he communicated with Ms. Vargas “into the evening” of September 7, 2013. And
the JTC found that respondent did not testify falsely about his contacts with Ms. Vargas
after 4:00 a.m. on September 8, 2013, i.e., the period during which the accident occurred.
Therefore, considering this context, it appears that respondent simply may not have
recalled the precise timing of a few of the many communications he had with Ms.
Vargas—communications that were not central to the allegations of misconduct in this
case.
We find that respondent’s testimony on this point was careless and that he
provided inaccurate information. However, we do not believe that the JTC has sustained
its burden of proving by a preponderance of the evidence that respondent made an
intentional misrepresentation or misleading statement regarding his contacts with Ms.
Vargas before 4:00 a.m. on September 8, 2013. Consequently, we reject the JTC’s
conclusion that this alleged act constituted misconduct.
23
And, perhaps as a result, the JTC equivocated as well, finding that “[r]espondent made
an intentional misrepresentation or misleading statement.” (Emphasis added.) That is,
the JTC did not specifically find that respondent made “an intentional misrepresentation.”
If the JTC intended to communicate a finding that respondent made an “intentional
misrepresentation,” it should not have expressed its finding in the alternative.
16
Second, the JTC found that “[r]espondent made an intentional misrepresentation
or a misleading statement regarding the purpose for the thousands of texts [sic] messages
he exchanged with Ms. Vargas between August 1, 2013, and November 30, 2013.” This
particular finding refers to respondent’s answer to ¶ 65 of the formal complaint, in which,
after admitting the factual allegation, respondent stated that “the vast bulk of the
communications related to a complex, sensitive project Ms. Vargas was working on for
Judge Simpson in the case of People v Nader Nassif, #CRW 13-1244-FH.” Under MCR
9.209(B)(1), the answer to the complaint must be “verified by the respondent.” Although
the answer was signed by respondent, the JTC has not shown that it was verified. There
is no indication in the record that respondent verified the answer by oath or affirmation,
MCR 2.114(B)(2)(a), or by a signed and dated declaration, MCR 2.114(B)(2)(b).
Nevertheless, any misrepresentations or misleading statements in respondent’s unverified
answer may still be grounds for a finding of misconduct. See MCR 9.209(B)(2) (“Wilful
concealment, misrepresentation, or failure to file an answer and disclosure are additional
grounds for disciplinary action under the complaint.”).
With regard to this finding of misconduct, we agree with the JTC that respondent
made “an intentional misrepresentation or a misleading statement.” The sheer number of
communications—which were frequently exchanged during the night and on weekends—
is inconsistent with respondent’s explanation that the communications related to court
business, including an in camera review of evidence in the Nassif case. Moreover,
respondent testified that he learned that the Nassif case was assigned to him on August 11
or 12, and that his court did not receive the evidence for the in camera review until
September 12. Yet respondent and Ms. Vargas had already exchanged a surfeit of
17
communications by then. In addition, this explanation was inconsistent with another
explanation advanced by respondent—that the communications were attributable to the
“problems” that Ms. Vargas was having with her former boyfriend, who allegedly had
been violent toward her. 24
On the basis of the foregoing evidence, we affirm the JTC’s finding that
respondent made “an intentional misrepresentation or a misleading statement” when he
attributed the “vast bulk” of his communications with Ms. Vargas to the Nassif case. 25
We believe the JTC’s finding has been proved by a preponderance of the evidence.
B. CONCLUSIONS OF LAW
As stated above, the JTC concluded that respondent’s misconduct constituted
misconduct in office, Const 1963, art 6, § 30(2) and MCR 9.205; conduct clearly
prejudicial to the administration of justice, Const 1963, art 6, § 30(2) and MCR 9.205; a
failure to establish, maintain, enforce, and personally observe high standards of conduct
24
While a judge may certainly defend against the charges within the bounds of the law,
he or she cannot make knowingly false statements in the course of a JTC investigation.
See generally, In re Noecker, 472 Mich 1, 18; 691 NW2d 440 (2005) (YOUNG, J.,
concurring) (“[W]here a respondent is not repentant, but engages in deceitful behavior
during the course of a Judicial Tenure Commission disciplinary investigation, the
sanction must be measurably greater.”).
25
Although there is no direct evidence of the precise nature of the relationship between
respondent and Ms. Vargas, it is evident based on the multitudinous communications
between them that the relationship far exceeded the professional boundaries we would
expect in any workplace, especially in a judge’s chambers. However, the JTC did not
make any charges against respondent for having an inappropriate relationship with his
intern. Instead, the formal complaint alleged only that he made false statements to the
JTC concerning the nature and extent of his relationship, personal contacts, and
communications with Ms. Vargas—allegations that were not resolved by either the
master or the JTC in their respective findings.
18
so that the integrity and independence of the judiciary may be preserved, contrary to
Canon 1; irresponsible or improper conduct that erodes public confidence in the
judiciary, contrary to Canon 2(A); conduct involving impropriety and the appearance of
impropriety, contrary to Canon 2(A); a failure to respect and observe the law and to
conduct oneself at all times in a manner that would enhance the public’s confidence in
the integrity and impartiality of the judiciary, contrary to Canon 2(B); conduct that is
prejudicial to the proper administration of justice, contrary to MCR 9.104(1); conduct
that exposes the legal profession or the courts to obloquy, contempt, censure, or reproach,
contrary to MCR 9.104(2); conduct that is contrary to justice, ethics, honesty, or good
morals, contrary to MCR 9.104(3); and conduct that violates the standards or rules of
professional conduct adopted by the Supreme Court, contrary to MCR 9.104(4). 26
We agree with the JTC in most respects but we decline to decide whether
respondent committed misconduct in office, contrary to Const 1963, art 6, § 30(2) and
MCR 9.205, because it is not necessary for us to reach that question. 27
26
We note that it is unclear whether MCR 9.104 even applies in this context because that
rule, and the entire subchapter in which it appears, governs professional disciplinary
proceedings before the Attorney Discipline Board—not disciplinary proceedings before
the JTC; however, because respondent has not challenged the JTC’s conclusions on this
basis, we do not address the issue.
27
Respondent argues that he cannot be found liable for “misconduct in office” because
his conduct did not constitute the common-law offense of misconduct in office. See
People v Coutu, 459 Mich 348, 354; 589 NW2d 458 (1999), quoting Perkins & Boyce,
Criminal Law (3d ed), p 543 (“At common law, misconduct in office constituted ‘corrupt
behavior by an officer in the exercise of the duties of his office or while acting under
color of his office.’ ”). Although this Court has not yet addressed whether “misconduct
in office,” under Const 1963, art 6, § 30(2) and MCR 9.205(B), is limited to the common-
law offense, we have repeatedly suggested that it is not so limited. See, e.g., In re
Probert, 411 Mich 210, 234-235; 308 NW2d 773 (1981) (in which the respondent,
19
C. SANCTION
The JTC recommends that this Court remove respondent from office as “an
appropriate and proportional sanction for Respondent’s misconduct” because respondent
“intentionally used his status as a judge in an attempt to influence the investigation and
prosecution of [a] criminal case for the benefit of his intern” and “made intentional
misrepresentations or misleading statements, under oath, at the public hearing and in his
answer to the formal complaint.” The JTC arrived at this recommendation after assessing
the Brown factors and concluding that “a more severe sanction” was warranted.
The seven Brown factors are as follows:
(1) misconduct that is part of a pattern or practice is more serious
than an isolated instance of misconduct;
(2) misconduct on the bench is usually more serious than the same
misconduct off the bench;
(3) misconduct that is prejudicial to the actual administration of
justice is more serious than misconduct that is prejudicial only to the
appearance of propriety;
(4) misconduct that does not implicate the actual administration of
justice, or its appearance of impropriety, is less serious than misconduct
that does;
among other acts of misconduct, “procured an employment test for his friend, and
assisted her in preparing answers in advance of the test,” and this Court agreed with the
JTC that the respondent was liable for misconduct in office and conduct clearly
prejudicial to the administration of justice because those acts were “within the purview of
Const 1963, art 6, § 30, and GCR 1963, 932.4”) (quotation marks omitted). We need not
address whether respondent may be found liable for “misconduct in office,” however,
given our conclusion that respondent engaged in “conduct that is clearly prejudicial to the
administration of justice” under the same constitutional provision and therefore may be
sanctioned by this Court.
20
(5) misconduct that occurs spontaneously is less serious than
misconduct that is premeditated or deliberated;
(6) misconduct that undermines the ability of the justice system to
discover the truth of what occurred in a legal controversy, or to reach the
most just result in such a case, is more serious than misconduct that merely
delays such discovery;
(7) misconduct that involves the unequal application of justice on the
basis of such considerations as race, color, ethnic background, gender, or
religion are more serious than breaches of justice that do not disparage the
integrity of the system on the basis of a class of citizenship.[28]
The JTC stated that four of the seven Brown factors weighed in favor of a more serious
sanction; only the first and seventh factors did not. The JTC’s discussion of the second
factor did not specifically address whether the second factor weighed in favor of a more
serious sanction. We generally agree with the JTC’s assessment. With regard to the first
factor, we agree with the JTC that the factor does not weigh in favor of a more serious
sanction because “[t]here was no evidence . . . that Respondent repeated similar
misconduct in other cases.” Indeed, we find it noteworthy that there is no evidence that
respondent committed any misconduct in other cases, which we bear in mind when
determining the appropriate sanction. With regard to the second factor, the JTC properly
noted that respondent’s misconduct did not occur on the bench but nonetheless involved
his position as a judge. The third and fourth factors counsel a graver sanction because, as
the JTC discussed, respondent interfered in a criminal investigation and prosecution, then
misrepresented certain facts during the JTC investigation. The fifth factor weighs in
favor of a more severe sanction because respondent’s repeated efforts to prematurely end
28
In re Brown, 461 Mich at 1292-1293.
21
Ms. Vargas’s criminal matter, as well as his lack of candor in the JTC proceedings,
evidence a premeditated endeavor to commit misconduct. Regarding the sixth factor, we
agree with the JTC that it justifies a greater sanction, albeit on different grounds. As
noted above, we disagree with the JTC’s conclusion that respondent made intentional
misrepresentations or misleading statements at the public hearing. However, we
conclude that respondent’s misconduct in interfering with the police investigation and
criminal prosecution undermined the ability of the justice system to discover the truth of
what occurred in the legal controversy involving Ms. Vargas. As for the seventh factor,
the JTC appropriately observed that respondent’s misconduct did not relate to any
protected classes.
“This Court gives considerable deference to the JTC’s recommendations for
sanctions, but our deference is not ‘a matter of blind faith[.]’ ” 29 “Instead, it ‘is a function
of the JTC adequately articulating the bases for its findings and demonstrating that there
is a reasonable relationship between such findings and the recommended discipline.’ ” 30
“This Court’s overriding duty in the area of judicial discipline proceedings is to treat
‘equivalent cases in an equivalent manner and . . . unequivalent cases in a proportionate
manner.’ ” 31 We decline to adopt the JTC’s recommended sanction of removal from
office.
29
In re Morrow, 496 Mich at 302, quoting In re Brown, 461 Mich at 1292 (alteration in
original).
30
In re Morrow, 496 Mich at 302, quoting In re Brown, 461 Mich at 1292.
31
In re Morrow, 496 Mich at 302, quoting In re Brown, 461 Mich at 1292.
22
In this case, as explained previously, respondent attempted to and did interfere
with a police investigation and the prosecution of his intern. Moreover, respondent made
an intentional misrepresentation or misleading statement in his answer to the complaint
when he claimed that the “vast bulk” of communications between him and Ms. Vargas
concerned the Nassif case. The public has a right to expect more of its judges. “As the
cornerstone of our tripartite system of government, the judiciary has a public trust to both
uphold and represent the rule of law.” 32 Our judicial system depends on public
confidence in the integrity and impartiality of the judiciary. 33 Because the people “ ‘are
entitled to a judiciary of the highest integrity, in both appearance and in fact,’ ” this Court
“ ‘bears the obligation under the constitution adopted by “we the people” to maintain and
enforce standards of judicial fitness.’ ” 34
We have previously sanctioned judges for attempting to interfere in the legal
process on behalf of themselves or others. In In re Brown, the respondent was involved
in an automobile accident, he knew one of the responding police officers, he informed the
officers that the other driver was speeding, and he requested that they issue her a ticket. 35
The JTC found that the respondent was “ ‘attempting to use the prestige of [his] office to
32
In re Hocking, 451 Mich at 6.
33
In re Ferrara, 458 Mich 350, 372; 582 NW2d 817 (1998).
34
In re McCree, 495 Mich 51, 83 n 39; 845 NW2d 458 (2014), quoting In re James, 492
Mich 553, 574; 821 NW2d 144 (2012) (MARKMAN, J., concurring in part and dissenting
in part).
35
In re Brown (After Remand), 464 Mich 135, 136-137; 626 NW2d 403 (2001).
23
gain a personal advantage.’ ” 36 This Court adopted the JTC recommendation of a 15-day
suspension without pay. 37 In In re Mazur, the respondent attempted to assist a former
neighbor whose daughter had been arrested by contacting the judge assigned to the case
and asking the judge to release her on a personal recognizance bond. 38 Pursuant to the
settlement agreement between the JTC and the respondent, this Court imposed a public
censure and a 30-day suspension without pay. 39 And in In re Lawrence, the respondent
committed five acts of misconduct, one of which was the improper use of his judicial
office to influence a licensing agency for the benefit of an acquaintance. 40 In particular,
the respondent “clearly stated that [the respondent’s acquaintance], the applicant for a
gun permit, was a probation officer and was required to go into the inner city of Detroit at
all hours during the course of his probation duties.” 41 This Court stated that “[s]uch
information was not true and was clearly a misrepresentation” 42 and imposed, for that and
other misconduct, a nine-month suspension without pay. 43
36
Id. at 137 (alteration in original).
37
Id. at 141.
38
In re Mazur, 498 Mich 923, 925 (2015).
39
Id. at 926.
40
In re Lawrence, 417 Mich 248, 261; 335 NW2d 456 (1983).
41
Id.42
Id.43
Id. at 267.
24
We have also previously sanctioned judges for making misrepresentations while
not under oath. In In re Lawrence, as noted previously, the respondent made a
misrepresentation in a letter to a licensing agency. 44 In In re Binkowski, the respondent
modified a letter that was sent to him by the JTC “to convey to his colleagues the
erroneous impression that the outcome of the commission’s inquiry into the grievances
which had been filed [against him] was a straightforward and unencumbered dismissal of
those grievances.” 45 This Court imposed a public censure against the respondent. 46 In In
re Milhouse, the respondent filed a judgment of sentence falsely indicating that the
criminal defendant had waived his right to counsel and pleaded guilty to the charged
offense. 47 During the JTC investigation, the respondent “submitted a written reply to the
grievance. In that reply, [he] did not make a full and fair disclosure and knowingly made
false and misleading statements that he had mistakenly entered the judgments and closed
the files and that it was not his intent to falsify documents or deprive [the criminal
defendant] of his right to due process.” 48 In addition, in his answer to the 28-day letter,49
the respondent “did not make a full and fair disclosure and knowingly made false and
44
Id. at 261.
45
In re Binkowski, 420 Mich 97, 105-106; 359 NW2d 519 (1984).
46
Id. at 107.
47
In re Milhouse, 461 Mich 1279, 1280 (2000).
48
Id. at 1281.
49
A 28-day letter is a letter of inquiry from the JTC to the judge under investigation. See
In re Ferrara, 458 Mich at 355 n 6.
25
misleading statements that he had mistakenly closed the files and he had not intended to
knowingly and purposely deprive [the criminal defendant] of his due process rights.” 50
In accordance with the JTC’s recommendation and the respondent’s consent, this Court
imposed a public censure and a 10-day suspension without pay, with credit given for a
10-day suspension already imposed by the district court. 51 Finally, in In re Radzibon, the
respondent committed acts of misconduct that included filing “a false and incomplete
inventory of estate assets” when acting as an attorney in a probate court. 52 This Court,
with the respondent’s consent, adopted the JTC recommendation of a 90-day suspension
without pay and restitution of $1,000 for the respondent’s acts of misconduct. 53
We acknowledge that “[t]his Court has consistently imposed the most severe
sanction by removing judges for testifying falsely under oath.” 54 However, in each case
in which this Court has removed a judge for testifying falsely under oath, the judge
testified falsely at the JTC hearing itself or another court hearing. 55 That is, in each of
50
Id.51
Id. at 1279.
52
In re Radzibon, 457 Mich 1201, 1204 (1998).
53
Id. at 1205.
54
In re Adams, 494 Mich 162, 186; 833 NW2d 897 (2013).
55
See In re Ryman, 394 Mich 637, 643; 232 NW2d 178 (1975) (“The master further
found that the respondent gave false testimony in a number of instances in testifying
before the master as to the facts related to his practice of law after ascending [to] the
bench.”); In re Ferrara, 458 Mich at 362-363 (“Respondent displayed a similar disregard
for the truth, as well as a lack of candor with the tribunal, when she answered questions
before the master and this Court regarding whether she uttered the ugly words
disseminated to the public by, and attributed to her in, the press.”); In re Noecker, 472
Mich at 9; (“[The JTC] found that [respondent] failed to offer credible testimony when
26
those cases, the judge apparently gave one or more false answers after swearing to testify
truthfully. Here, in contrast, the false statement concerning the Nassif case was given in
the answer to the complaint, which the JTC has not proved was verified as required by
MCR 9.209(B)(1). Absent such proof, we cannot conclude that the false statement in the
answer was given under oath. 56 Therefore, we do not believe that the most severe
sanction of removal is warranted in this case. Instead, as In re Milhouse illustrates, when
a judge engages in misconduct by making an intentional misrepresentation or a
misleading statement while not under oath in the course of a JTC investigation, a lesser,
though still serious, sanction may be warranted.
We find that this case is most akin to In re Lawrence because in both cases, the
respondent’s misconduct included misuse of the respondent’s judicial office to benefit
under oath in the public hearing.”); In re Nettles-Nickerson, 481 Mich 321, 337; 750
NW2d 560 (2008) (“Respondent’s act of perjury in her divorce case undermined the
ability of the justice system to discover the truth of her ex-husband’s residency, which if
known at the time of Respondent’s misrepresentations would have prompted the Kent
County Circuit Court to conclude that it lacked jurisdiction over the proceeding.”); In re
James, 492 Mich at 556 (“[Respondent] made numerous misrepresentations of fact under
oath during the investigation and hearing of this matter.”); In re Justin, 490 Mich 394,
396; 809 NW2d 126 (2012) (“Instances of respondent’s judicial misconduct include . . .
making false statements under oath during the JTC hearing.”); In re Adams, 494 Mich at
171 (“The master and the JTC both found that respondent made false statements under
oath in Judge Brennan’s courtroom. We agree.”); In re McCree, 495 Mich at 66-67
(“[T]he JTC found that ‘Respondent engaged in a pervasive pattern of dishonesty that
included lying under oath to the Commission and to the Master.’ For example,
respondent testified that it did not ‘dawn’ on him to recuse himself from the King case
and that his failure to recuse himself was a mere ‘oversight.’ ”).
56
We do not address whether removal would be justified if a judge makes an intentional
misrepresentation or misleading statement in an answer that is properly verified because
that question is not presently before us.
27
another and a nontestimonial misrepresentation. In In re Lawrence, there were additional
unrelated allegations of misconduct, including allegations that the judge had assigned
cases to attorneys with whom he had financial ties, 57 that the judge had an interest in a
liquor license in direct contravention of a statute, 58 and that the judge had improperly
retained campaign funds. 59 However, we believe that the allegations in this case—
although fewer in number—are of equivalent seriousness. Respondent used his position
as a judge to repeatedly attempt to thwart the criminal investigation and prosecution of
his intern. This was not a one-time occurrence—rather, from the time respondent arrived
at the accident scene until the time Ms. Vargas was charged by a substitute prosecutor,
respondent made a sustained effort to scuttle the charges. And respondent was not
forthcoming in his answer to the formal complaint about the reason for his interactions
with Ms. Vargas. Because the respondent in In re Lawrence was suspended without pay
for nine months for similarly serious misconduct, we believe that an unpaid suspension of
nine months is warranted here.
In our judgment, bearing in mind that respondent has no other history of
misconduct, a nine-month unpaid suspension is a proportionate sanction. That sanction is
greater than the sanctions imposed in In re Brown and In re Mazur for misusing the
judicial office to benefit the judge or another person. It is also greater than the sanctions
imposed against each respondent in In re Binkowski, In re Milhouse, and In re Radzibon
57
In re Lawrence, 417 Mich at 253.
58
Id. at 256-257.
59
Id. at 262.
28
for nontestimonial misrepresentations. We believe our sanction here must be greater than
those sanctions because respondent engaged in a sustained campaign to prevent Ms.
Vargas from facing legal consequences for her actions by interfering with a police
investigation and the subsequent prosecution, in addition to providing false information
in his answer to the formal complaint. 60 We conclude that a nine-month suspension
without pay is consistent with our caselaw and will protect the public from this type of
judicial misconduct. 61
IV. RESPONSE TO THE PARTIAL DISSENT
The partial dissent accuses us of “misreading . . . the law” because we do not
address allegations of misconduct that were not found and recommended to us by the
JTC. There are many reasons not to address such allegations—for one thing, it would
violate our state’s Constitution, as we held in In re Mikesell over 40 years ago. 62 It would
60
To assert, as the partial dissent does, that we have not held respondent accountable for
his lack of candor in his answer to ¶ 65 of the formal complaint is a misreading of our
opinion. What we presume the partial dissent means is that we did not accord this
misconduct sufficient weight and therefore failed to impose some unspecified greater
sanction that the partial dissent believes would be appropriate. Left unanswered is the
critical question of precisely what additional weight the partial dissent would accord this
misconduct—the partial dissent has not told us whether it believes that its reweighing of
the evidence justifies increasing the sanction by an additional day, week, month, or year,
or whether it agrees with the JTC that removal from office is the appropriate sanction in
this case.
61
See In re Jenkins, 437 Mich 15, 28; 465 NW2d 317 (1991) (“The purpose of [judicial
disciplinary] proceedings is not to impose punishment on the respondent judge, or to
exact any civil recovery, but to protect the people from corruption and abuse on the part
of those who wield judicial power.”).
62
See note 22 of this opinion. The partial dissent’s attempt to narrow In re Mikesell—by
urging that this Court may consider allegations “not reflected in the JTC’s findings”—is
unpersuasive. See note 2 of the partial dissent. Allegations of misconduct left
29
unaddressed by the JTC are, by definition, not recommended to us by the JTC. The issue
of the scope of our review in JTC cases was squarely presented and decided in In re
Mikesell, where we held that our Constitution requires us to focus on the findings and
recommendations of the JTC, not on the findings of the master. See In re Mikesell, 396
Mich at 524-526; see also In re Chrzanowski, 465 Mich at 481 (reiterating the same
point, albeit without citing In re Mikesell). That holding has never been overturned, or
even criticized; it remains good law. See People v Jamieson, 436 Mich 61, 79; 461
NW2d 884 (1990) (“Under the doctrine of stare decisis, principles of law deliberately
examined and decided by a court of competent jurisdiction become precedent which
should not be lightly departed.”). The partial dissent accuses us of “self-impos[ing]” the
limitation on our scope of review in JTC matters; however, the limitation was actually
imposed by the people of our state when they voted to amend our Constitution in 1968.
See Const 1963, art 6, § 30. The question whether their judgment was sound (i.e.,
whether, in the partial dissent’s words, it was “dubious public policy”) is not for us to
decide. See Durant v Michigan, 456 Mich 175, 220; 566 NW2d 272 (1997) (“The people
having spoken through their constitution, the policy debate is no longer open.”).
More troubling still is the partial dissent’s suggestion that In re Mikesell may have
been overruled by implication, i.e., that an inconsistent application of the law is sufficient
to overrule an express holding of this Court. Allowing a case to “slip[] down a memory
hole,” People v Ream, 481 Mich 223, 232 n 7; 750 NW2d 536 (2008), is a poor substitute
for “deliberately examin[ing] and decid[ing]” a principle of law. Jamieson, 436 Mich at
79. Unlike People v Wilder, 411 Mich 328; 308 NW2d 112 (1981), the case we said was
implicitly overruled in Ream, our holding in In re Mikesell has never been called into
question or criticized. And, contrary to the partial dissent’s suggestion, In re Mikesell
and In re Chrzanowski are not the only cases in which this Court has applied the principle
of limiting its review to the particular allegations of misconduct found proved by the
JTC. See, e.g., In re Bennett, 403 Mich 178, 184; 267 NW2d 914 (1978) (“We have
reviewed the entire record de novo and conclude that the conduct charged to Judge
Bennett and found by the Commission is established by the record. The issues for our
consideration, then, are whether that conduct is of a nature warranting discipline and, if
so, whether removal, as recommended by the Commission majority, or some other form
of discipline should be imposed.”) (emphasis added); In re Laster, 404 Mich 449, 455;
274 NW2d 742 (1979) (“We have reviewed the entire record de novo and conclude that
the conduct attributed to Judge Laster, and found by the Commission, is established.”); In
re Lawrence, 417 Mich at 266 (1983) (“Upon de novo review of the record in this case,
we find that the allegations of misconduct found by the commission are supported by the
evidence.”); In re Callanan, 419 Mich 376, 383; 355 NW2d 69 (1984) (“Respondent
admitted that the facts as alleged in the indictment gave rise to discipline, but not that the
facts alleged were true. As a result, we consider only those facts found by the commission
which have been admitted, that respondent was indicted and has been three times
30
also violate our court rules, which suggest that we have the authority only to “accept or
reject the recommendations of the [JTC]” unless they relate to the sanction, in which case
we may “modify the recommendations by imposing a greater, lesser, or entirely different
sanction.” 63
The partial dissent argues that three cases, postdating In re Mikesell, are
inconsistent with it and therefore may have overruled In re Mikesell’s holding sub
silentio: In re Ferrara, In re Adams, and In re McCree. We disagree. A close review of
each of those cases indicates that this Court would have imposed the same sanction
convicted, and the legal conclusions that can be drawn from them.”) (emphasis added); In
re Jenkins, 437 Mich 15, 18 n 1; 465 NW2d 317 (1991) (“The master permitted
amendment of the original complaint to include charges that respondent failed to respond
timely to the original complaint, and that respondent harassed nine witnesses by filing
defamation lawsuits against them. Neither the master nor the commission stated any
findings or made any recommendations with regard to these charges, and we therefore
do not address them.”) (emphasis added); In re Seitz, 441 Mich 590, 594; 495 NW2d 559
(1993) (“It becomes our task, by reviewing de novo the record of this case, to conclude
whether ‘the conduct charged to Judge [Seitz] and found by the Commission is
established by the record. The issues for our consideration, then, are whether that
conduct is of a nature warranting discipline and, if so, whether removal, as recommended
by the Commission majority[,] or some other form of discipline should be imposed.’ ”),
quoting In re Bennett, 403 Mich at 184; In re Moore, 464 Mich 98, 122; 626 NW2d 374
(2001) (“In reviewing the record de novo, we consider whether the conduct charged and
found by the commission is established by the record, whether the conduct is of a nature
warranting discipline, and whether the discipline recommended by the commission or
some other form of discipline should be imposed.”) (emphasis added). See also In re
Somers, 384 Mich 320, 323; 182 NW2d 341 (1971) (limiting the Court’s de novo review
to the three particular findings of misconduct made by the JTC and alleged in the
complaint).
63
MCR 9.225. See also In re Hathaway, 464 Mich 672, 685; 630 NW2d 850 (2001)
(“The court rule states our authority to modify a recommendation of the commission, and
the meaning of the word ‘modify’ encompasses authority to alter the recommended
discipline.”).
31
recommended by the JTC—removal from office—regardless of the additional
determinations of misconduct. 64 Even conceding, arguendo, that the applications in the
cases relied on by the partial dissent could be read as inconsistent with In re Mikesell,
those cases never cited the In re Mikesell holding applied here, and the issue of this
64
See Garner et al., The Law of Judicial Precedent (2016), p 300 (“If at all possible, the
opinions [perceived as conflicting] should be harmonized.”). In In re McCree, this Court
expressly qualified its additional determinations of misconduct by explaining that those
determinations did not affect the ultimate sanction. In re McCree, 495 Mich at 71
(“Although we believe that the sanctions recommended by the JTC, and adopted by this
Court today, would be warranted even without considering these additional findings of
fact, we believe that these additional findings provide relevant background and context
and demonstrate more fully the nature and magnitude of respondent’s misconduct.”). In
In re Adams, this Court adopted the JTC’s determination that the respondent made false
statements under oath during her divorce case. In re Adams, 494 Mich at 171 (“The
master and the JTC both found that respondent made false statements under oath in Judge
Brennan’s courtroom. We agree.”). Then, after identifying additional instances “of
varying significance” of the respondent’s having testified falsely under oath, instances
that were not identified by the JTC, id. at 177, this Court ordered that the respondent be
removed from office because the respondent “testif[ied] falsely under oath.” Id. at 178.
We explained that we could “discern no compelling reason to treat this case any
differently” from previous cases in which this Court had removed a judge for testifying
falsely under oath. Id. at 186. The Court gave no indication that it would have deviated
from those previous cases but for the additional instances in which the respondent had
lied under oath. Finally, in In re Ferrara, although one of the grounds of misconduct
included inappropriate, untruthful, and evasive statements made to the press, to the
public, to the master, to the JTC, and to this Court (when the respondent judge apparently
addressed the Court on her own behalf during oral argument), and the opinion does
discuss the statements made to this Court in some detail, see In re Ferrara, 458 Mich at
363-365, the statements made to this Court were simply a continuation (and perhaps a
more vivid illustration) of the improper statements made by the respondent in the other
venues (which were included in the JTC’s recommendation). In light of the nature and
severity of the charges of misconduct that were sustained by both the master and the
JTC—including that the respondent obstructed justice by fabricating evidence and twice
attempting to introduce that evidence during the hearing before the master, id. at 365-
369—we do not believe the Court’s decision to remove the respondent judge hinged on
her statements to this Court during oral argument.
32
Court’s authority to look beyond the ambit of JTC proceedings was not deliberately
examined or decided in those cases. These cases did not implicitly overrule In re
Mikesell; if anything, they erroneously failed to follow its rule. We, therefore, disagree
with the partial dissent that In re McCree, In re Adams, and In re Ferrara stand for the
proposition that this Court possesses the constitutional authority to impose a sanction on
the basis of misconduct beyond the JTC’s findings of misconduct.
Another compelling reason to limit our review in JTC proceedings to allegations
of misconduct found and recommended to us by the JTC is that a respondent judge is
entitled to notice of the charges and a reasonable opportunity to respond to them. 65
Without such notice, it is not clear to us how a respondent judge would know which
charges are at issue and, therefore, which ones he or she should substantively address
when a case proceeds to our Court. Is our review limited to the charges in the formal
complaint or an amended version of it? 66 Or the findings of the master? Or the findings
65
See MCR 9.213 (“If an amendment [of the complaint] is made, the respondent must be
given reasonable time to answer the amendment and to prepare and present a defense
against the matters charged in the amendment.”). See generally In re Del Rio, 400 Mich
665, 683; 256 NW2d 727 (1977) (“In respondent’s case, the order for interim suspension
was not entered until the respondent was given adequate notice and a reasonable
opportunity to respond to both the complaint and the petition for interim suspension.”); In
re Mikesell, 396 Mich at 529, quoting In re Kelly, 238 So 2d 565, 569 (Fla, 1970)
(“Under the provisions of the [Florida] Constitution this Court may exclude from the
judiciary those persons whose unfitness or unsuitability bears a rational relationship to his
qualifications for a judgeship, so long as the adjudication of unfitness rests on
constitutionally permissible standards and emerges from a proceeding which conforms to
the minimum standards of due process.”).
66
The partial dissent asserts that there is no need to amend the formal complaint to add
charges based on conduct arising in the course of the JTC proceedings in light of MCR
9.209(B)(2), which provides that “[w]ilful concealment [or] misrepresentation . . . are
additional grounds for disciplinary action under the complaint.” See note 2 of the partial
33
and recommendations of the JTC? Should a respondent and his or her attorney be put in
the untenable position of having to argue against possible findings of misconduct that
were not charged in the complaint or made by either the master or the JTC but might be
discerned by a member of this Court? Whatever could be said about such a regime, we
would no longer say that it “provides a full panoply of procedural guarantees for
adjudicating allegations of judicial misconduct.” 67
One needs look no further than this case to see the deficiencies in the partial
dissent’s proposed regime. In assessing the two new allegations of misconduct
“identified” by the partial dissent that do not appear in the complaint or the JTC’s
decision, we have no input from respondent or from the JTC on whether they agree with
the partial dissent’s assertion that “the master specifically concluded that respondent had
lied under oath” when he denied that he interfered with the police investigation and
criminal prosecution of Ms. Vargas. For our part, we are not convinced.
At the outset, we could locate no finding in the master’s report that respondent
“lied under oath” as the partial dissent suggests. 68 Instead, the penultimate sentence of
dissent. As noted above, we do not reach this issue because it is not before us. See note
20 of this opinion. However, recognizing that JTC proceedings “are concerned not with
punishing criminality but with maintaining standards of judicial fitness,” In re Mikesell,
396 Mich at 527, we note that the partial dissent’s position is a little like saying that a
criminal defendant need not be charged in an information or indictment with perjury for
lying at his trial for larceny because a statute on the books makes perjury a crime.
67
In re Del Rio, 400 Mich at 683.
68
The master did conclude, however, that respondent was untruthful in his
correspondence with the JTC regarding his interactions with Officer Cole and the
township attorney. See note 21 of this opinion. However, as noted above, the JTC did
not adopt these findings.
34
the master’s report provides that “Respondent made misleading statements to the
Commission’s investigators and to the Master when he testified to the nature of the text
messages and denied interfering with the police investigation and the prosecution of Ms.
Vargas.” But it is far from clear that a “misleading statement” is equivalent to a “lie
under oath.” We have not yet addressed, for example, whether materiality or an intention
to deceive are necessary to prove that a judge testified falsely under oath. Before being
removed from office, a respondent judge is certainly entitled to an opportunity to provide
input on these critical questions (as well as whether the specific elements are proved in a
given case, if we decide they are necessary). 69 Maybe these deficiencies caused the JTC
not to make findings on or recommend those charges to us. But, absent further briefing
or argument, we will never know, because the part of the proceedings where the parties
are able to give input has long passed. 70
For all these reasons, we decline the partial dissent’s invitation to “identify”
misconduct in the record that was not charged in the complaint or found and
recommended to us by the JTC.
69
To the extent that the partial dissent believes that respondent should receive a more
serious sanction simply because he denied the allegations of misconduct set forth in
Counts 1 and 2 of the complaint, we reject such a rule because it would create immense
pressure on judges to stipulate to the charges or risk removal for fighting them.
70
We dismiss as unserious the partial dissent’s extraordinary suggestion that the JTC can
inoculate itself from a claim of legal error by reciting a boilerplate phrase and citing an
inapplicable court rule. See note 9 of the partial dissent. It is difficult to see what value
the partial dissent sees in planting this seed, which in our view can only serve as a
suggestion that the JTC travel a road seemingly no justice would accept as sustainable.
35
V. CONCLUSION
Respondent’s judicial misconduct warrants a serious sanction to restore the
public’s faith and confidence in the judiciary. However, for the reasons explained above,
we conclude that the recommended sanction of removal from office is disproportionate to
the misconduct. We therefore modify the JTC’s recommendation and order that the
Honorable J. Cedric Simpson, judge of the 14A District Court, be suspended without pay
from the performance of his judicial duties for a period of nine months. In addition,
because respondent engaged in conduct involving “intentional misrepresentation” or
“misleading statements” under MCR 9.205(B), we order him to pay costs in the amount
of $7,565.54. Finally, pursuant to MCR 7.315(C)(3), the Clerk is directed to issue the
order forthwith.
David F. Viviano
Bridget M. McCormack
Richard H. Bernstein
Joan L. Larsen
36
STATE OF MICHIGAN
SUPREME COURT
In re Honorable J. CEDRIC SIMPSON,
Judge, 14-A District Court.
No. 150404
MARKMAN, C.J. (concurring in part and dissenting in part).
Respondent lied under oath on at least two occasions. I respectfully believe that
the majority errs by failing to give weight to this misconduct, largely because the
recommendation of the Judicial Tenure Commission (JTC) to this Court did not
specifically refer to the lies that nonetheless appear clearly in the record. The majority’s
implicit conclusion-- that this Court is constrained from holding a judge accountable in
disciplinary proceedings for misconduct appearing in the record but not specifically
identified in the JTC’s recommendation-- is inconsistent with our caselaw. Such an
understanding of the relationship between this Court and the JTC will inevitably weaken
our ability to monitor, and to sanction when necessary, the professional behavior of
Michigan judges. Although I agree with the majority that respondent did commit
misconduct and therefore concur with its decision to impose some sanction-- indeed a
considerable sanction-- I would consider additional aspects of respondent’s misconduct in
setting the sanction.
The irony of this dissent is that I disagree with little that is actually within the
majority opinion. The majority evaluates four different allegations made against
respondent spread over three counts. I agree with most or all of the majority’s factual
findings regarding those allegations. First, I agree with the majority that Count 1 of the
JTC complaint-- alleging that respondent interfered with Police Officer Robert Cole’s
investigation of respondent’s intern’s car accident-- has been proved. Second, I agree
that Count 2-- alleging that respondent interfered with Pittsfield Township Attorney
Victor Lillich’s prosecution of respondent’s intern-- has been proved. Third, I agree that
an allegation under Count 3 of the JTC complaint-- that respondent lied about having
been in contact with his intern in the early morning hours of September 8, 2013-- has not
been proved and that respondent’s denial was not a lie. Fourth, I agree that a separate
allegation under Count 3-- that in his answer to the complaint, respondent misrepresented
the reason for the thousands of text messages and phone calls he exchanged with his
intern-- has been proved. Moreover, at least for the sake of argument, I also agree that
the JTC has failed to prove that respondent verified his answer to the complaint, meaning
that it has not been proved that his false statement in the answer was offered under oath.
Rather than what is included in the opinion, it is what is excluded that most
concerns me. The majority does not recognize two additional instances of misconduct
that, in my judgment, should fall within Count 3. First, the majority does not recognize
that respondent’s sworn explanation before Master Peter Houk for respondent’s presence
at his intern’s car accident scene was that he wanted “to make sure that [his intern] was
okay,” and that he responded affirmatively when asked whether he “arrived at this
location because [he] w[as] concerned for [his intern’s] well-being from her ex-
boyfriend[.]” This explanation was false; respondent’s interaction with Officer Cole was
not merely an inquiry into his intern’s well-being but was instead, as the majority
2
acknowledges, “an effort to scuttle a criminal investigation of his intern.” Second, the
majority does not recognize that respondent’s sworn explanation before the master for
calling Lillich was that he
wanted to check [his intern’s] story because it didn’t make much sense to
[him] and that [he] thought that [his intern] had not told [him] the truth
regarding [his intern’s] consumption of alcohol or alcohol usage . . . that
[his intern] was underestimating something to [respondent].
This explanation again was false; respondent’s interaction with Lillich was, as the
majority also acknowledges, an effort “to thwart the township’s criminal prosecution of
his intern.”
In his report to the JTC, the master specifically concluded that respondent had lied
under oath in offering an innocent explanation for each of these actions. According to the
master, respondent’s rationale for being at the accident scene was disconsonant with
evidence indicating that respondent “was there to inject himself into the investigation in
support of [his intern].” Therefore, the master concluded, “The allegation regarding
misrepresenting the reason for [r]espondent’s appearance at the accident scene has been
proven by a preponderance of the evidence.” 1 And concerning respondent’s rationale for
contacting the township attorney, the master concluded that “[r]espondent was not
1
There can be little doubt that the master found respondent to have lied concerning his
intentions for appearing at the accident scene. The master’s report notes that
“[p]aragraphs 68-69 of the Formal Complaint allege that the Respondent lied about his
reason for appearing at the arrest scene.” In the process of assessing these allegations,
the master observed that respondent’s stated reason for appearing at the scene was that he
“was worried that the incident . . . might be related to her ex-boyfriend[.]” But, as found
by the master, respondent made no inquiry at all concerning the ex-boyfriend when he
injected himself at the scene.
3
truthful in his answers.” To characterize a statement as a “misrepresentation” or as “not
truthful” is tantamount to stating that it is a lie, and these particular lies were offered
under oath. In recent cases, this Court has made it reasonably clear that a judicial officer
who lies during the course of disciplinary proceedings is not competent to sit as a judge,
and we have consequently removed such judges from office. See In re Justin, 490 Mich
394, 424; 809 NW2d 126 (2012) (noting that “some misconduct, such as lying under
oath, goes to the very core of judicial duty and demonstrates the lack of character of such
a person to be entrusted with judicial privilege” and that accordingly, lying under oath
makes a judge unfit to continue holding judicial office) (quotation marks, citation, and
emphasis omitted); see also In re Adams, 494 Mich 162, 186; 833 NW2d 897 (2013)
(“This Court has consistently imposed the most severe sanction by removing judges for
testifying falsely under oath.”); In re McCree, 495 Mich 51, 81; 845 NW2d 458 (2014)
(“Just last term, this Court held [in Adams] that lying under oath ‘ “is entirely
incompatible with judicial office and warrants removal.” ’ ”) (citations omitted).
However, what is more troubling than the lack of consideration of these two
instances of misconduct is the majority’s legal rationale for doing so. Why are the
master’s allegations of false testimony given under oath going unaddressed? While the
majority never directly explains this, its position appears to be predicated on the fact that
these two instances of misconduct are not specifically discussed in the JTC’s
recommendation to this Court. Rather, the JTC’s recommendation as to Count 3 only
pertains to the two allegations of lying or misrepresentation that the opinion does discuss--
the allegation that respondent lied about being in contact with his intern in the early
morning hours of September 8, 2013, and the allegation that he lied in his answer to the
4
complaint. The JTC’s recommendation does not address the master’s finding that
respondent lied under oath when he denied that he was interfering with either Cole’s
investigation or Lillich’s prosecution; it simply does not discuss these allegations at all.
The majority never squarely asserts that this Court cannot hold a respondent
responsible for misconduct contained in the record but not specifically identified as a
basis for discipline in the JTC’s recommendation. Instead, it strongly implies this by
failing to acknowledge these instances of sworn lying identified by the master; it would
be one thing after review to reject these instances of misconduct as a basis for sanctions,
but it is a considerably different thing to fail entirely to even consider these instances of
misconduct. The only support offered for this lack of acknowledgment in the majority’s
analysis is the assertion that “we have long held that our focus in judicial disciplinary
proceedings is on the JTC’s findings,” with a footnote discussing In re Mikesell, 396
Mich 517; 243 NW2d 86 (1976), and In re Chrzanowski, 465 Mich 468; 636 NW2d 758
(2001). 2 The apparent upshot is that misconduct set forth in the record but not
2
Moreover, the majority reads Mikesell significantly more broadly than is warranted. In
Mikesell, 396 Mich at 524-526, the original complaint contained 12 allegations of
misconduct, 6 of which were rejected by both the master and the JTC and were not
considered by this Court. Here, by contrast, we are debating instances of misconduct that
were, in fact, recognized by the master, some of which were adopted by the JTC
(including respondent’s stated purpose for thousands of text messages with his intern
from August to November of 2013), and others of which were not recognized by the
master and only consist of further examples of the misconduct that respondent is charged
with by the JTC in Count 3. The only question is whether this Court can bolster its
conclusions in regard to one or more lies found by the JTC with additional lies not
reflected in the JTC’s findings, which we have clearly and regularly done since Mikesell.
Application of Mikesell to misrepresentations made during JTC proceedings is
particularly inappropriate because willful concealment and misrepresentation during JTC
proceedings always constitute an additional basis for disciplinary action once a complaint
has been filed without the need for an amended complaint to set forth any additional
5
specifically identified as misconduct in the JTC’s recommendation cannot constitute a
basis for this Court to impose judicial discipline.
This reading of our authority in judicial disciplinary proceedings is a misreading
of the law. Our court rules specifically provide that “[w]ilful concealment [or]
misrepresentation . . . are additional grounds for disciplinary action under the complaint”
in a JTC matter. MCR 9.209(B)(2). Respondents are consequently on notice that telling
the truth in JTC proceedings is always imperative and that this Court “review[s] the
record de novo in this type of action.” In re Somers, 384 Mich 320, 323; 182 NW2d 341
(1971). Moreover, after reviewing de novo the record of JTC proceedings, this Court has
repeatedly imposed discipline on the basis of misconduct beyond that set forth in the
JTC’s recommendation. Thus, in In re Ferrara, 458 Mich 350, 363-364 & n 13; 582
NW2d 817 (1998), we pointed to the respondent’s evasive and dishonest remarks made to
this Court during oral argument as part of a pattern of “unsupportable denials and
inconsistent statements to the media, the public, the commission, and this Court,”
indicating her “refus[al] to accept responsibility for her [racist] comments” and
constituting “clear evidence of her inability to be forthright, to avoid appearances of
allegations about misrepresentations during the pendency of JTC proceedings. See MCR
9.209(B)(2). The majority also errs by giving meaning to the Court’s remark in
Chrzanowski, 465 Mich at 481, that “it is the JTC’s, not the master’s conclusions and
recommendations[,] that are ultimately subject to review by this Court.” That statement
was made in response to the respondent’s argument that the JTC had not sufficiently
deferred to the master’s findings. Id. at 480. It does not stand for the proposition that
this Court may not review de novo the record and identify additional instances of
misconduct, if any, beyond those set forth in the JTC’s recommendation. See In re
Somers, 384 Mich 320, 323; 182 NW2d 341 (1971) (recognizing that this Court conducts
a review de novo of the record in judicial disciplinary proceedings).
6
impropriety, and to fulfill the ethical obligations of a judicial officer.” Obviously,
remarks made by the respondent during oral argument before this Court could never
constitute a part of the recommendation made by the JTC to this Court, which prompted
our consideration of the matter in the first place. Similarly, in Adams, 494 Mich at 177,
“we f[ound] that respondent also testified falsely about several other matters,” a finding
we made “[i]n addition to the factual misrepresentations identified by the JTC.” Again,
in McCree, 495 Mich at 70, we did the same when we discerned several lies “[i]n
addition to the factual findings that we adopt[ed] from the JTC . . . .” It is clear from
Ferrara, Adams, and McCree that there is no requirement that this Court avert its gaze
from on-the-record judicial misconduct even if the JTC has not connected the dots for us,
or has lacked the opportunity to connect the dots, in the exacting manner required by the
majority. 3 The appropriate sanction, as well as the fitness of a respondent to sit as a
3
See also In re Morrow, 496 Mich 291; 854 NW2d 89 (2014); In re Hathaway, 464 Mich
672; 630 NW2d 850 (2001). In Morrow, 496 Mich at 297, “the master concluded that the
facts constituted judicial misconduct in only two counts,” while “[a] majority of the JTC
disagreed in large part . . . .” However, “[t]he JTC made no mention of two of the alleged
instances of misconduct, . . . evidently agreeing [with the master] that these counts did
not establish judicial misconduct.” Id. at 297 n 3. We stated that “[o]ur review of the
record . . . le[d] us to the same conclusion,” id., suggesting that we had independently
reviewed the master’s report in reaching our own conclusion regarding whether the JTC’s
recommendation identified all the misconduct that it should have identified. In
Hathaway, 464 Mich at 682, the JTC recommended to this Court that we suspend the
respondent for 30 days on the basis of the misconduct the JTC identified. We modified
that suspension under MCR 9.225 to a six-month suspension. Id. at 692. The majority
opinion argues that Ferrara, Adams, and McCree “erroneously failed to follow
[Mikesell’s] rule.” But it is noteworthy that this Court specifically cited Mikesell in both
McCree and Adams, obviously discerning no apparent conflict between Mikesell and the
decision made in both McCree and Adams to recognize misconduct contained in the
record even when it was not included in the JTC’s recommendation. Moreover, the only
instances in which Mikesell has been affirmatively cited for the proposition asserted by
7
judge, are unaffected by whether a respondent’s misconduct has been identified by the
JTC 4 or discerned from the record by this Court.
The majority’s understanding would significantly cabin this Court’s ability to
identify misconduct on the part of Michigan judges and is neither good law nor good
disciplinary policy. “[T]he purpose of judicial discipline is not to punish but to maintain
the integrity of the judicial process.” In re Moore, 464 Mich 98, 118; 626 NW2d 374
(2001) (emphasis added). The ultimate responsibility to uphold the integrity and the
professional standards of the Michigan judiciary rests with this Court under our
Constitution:
the majority were in dissents. Thus, we reached our conclusion in Hathaway over a
dissent that expressly argued that under Mikesell “matters beyond the JTC’s
recommendation are not to be considered by th[is] Court.” Id. at 701 (CAVANAGH, J.,
dissenting). See also In re Brown (After Remand), 464 Mich 135, 144; 626 NW2d 403
(2001) (CORRIGAN, J., dissenting) (relying on Mikesell to distinguish between conduct
that was included in the complaint but not contained in the JTC’s recommendation and
conduct that was included in the complaint and in the JTC’s recommendation). Whether
the majority misreads Mikesell-- as I believe it does-- or Mikesell has been overruled by
implication, see People v Ream, 481 Mich 223, 232; 750 NW2d 536 (2008), one thing
seems certain-- our law today is clearly reflected in Ferrara, Adams, and McCree. See
also Garner et al, The Law of Judicial Precedent (2016), p 300 (“A court of last resort
generally follows its decision in the most recent case, which must have tacitly overruled
any truly inconsistent holding.”).
4
The majority asserts that it is in accord with the JTC in that the first Brown factor--
“misconduct that is part of a pattern or practice”-- is not satisfied because in the words of
the JTC, “[t]here was no evidence . . . that [r]espondent repeated similar misconduct in
other cases.” However, we have already held in Adams, 494 Mich at 180-181, that
repeated instances of lying within the course of a single JTC proceeding are fully
sufficient to support an enhanced sanction under that factor. This is but one good
illustration of why this Court has not viewed itself as bound by the JTC’s
recommendations.
8
On recommendation of the judicial tenure commission,[5] the
supreme court may censure, suspend with or without salary, retire or
remove a judge for conviction of a felony, physical or mental disability
which prevents the performance of judicial duties, misconduct in office,
persistent failure to perform his duties, habitual intemperance or conduct
that is clearly prejudicial to the administration of justice. [Const 1963, art
6, § 30(2).]
Judicial discipline cases are therefore unique. Ordinarily, we sit as an appellate court,
reviewing how lower courts have disposed of parties’ disputes. Even when our original
jurisdiction is invoked, we are generally adjudicating a dispute between parties. Judicial
discipline cases, by contrast, reflect an exercise of this Court’s affirmative duty to
maintain the integrity of the judiciary. “[T]his Court, and this Court alone, decides what,
if any, disciplinary action shall be taken against any elected member of the state
5
In Hathaway, 464 Mich at 695, we held that “the phrase ‘on recommendation’ is an
expression [of] how the judicial discipline process is initiated.” This phrase-- which was
also what the Court relied on in Mikesell-- means, as set forth in Hathaway, only that this
Court cannot take action sua sponte against a judge; disciplinary action must invariably
be commenced by the JTC. However, “[o]nce the JTC makes a recommendation of
discipline, this Court may accept or reject that recommendation.” Id. “Inherent in our
authority to reject a JTC recommendation is the option to decide the appropriate
discipline to impose, whether it be an affirmance, a reduction, or an increase in the
recommendation of the JTC.” Id. The same reasoning applies to our ability to identify
misconduct beyond that set forth in the JTC’s recommendation, reasoning that is
incompatible with the majority’s assertion that its interpretation of Mikesell “was actually
imposed by the people of our state when they voted to” create the JTC in 1968. Once the
judicial disciplinary process has been initiated, this Court reviews the record de novo in
accordance with Somers, and we possess inherent authority to identify misconduct
contained in the record and to impose an appropriate sanction. As for the several cases
cited by the majority in note 62 as additional support for its reading of Mikesell and
Chrzanowski, I read these as being fully consistent with Hathaway-- JTC disciplinary
recommendations must precede the imposition of sanctions by this Court. However, the
JTC’s recommendations do not detract from our prerogative, set forth in Ferrara,
Hathaway, Adams, and McCree, to go beyond such recommendations once the process
has been initiated.
9
judiciary[.]” In re Del Rio, 400 Mich 665, 689; 256 NW2d 727 (1977). It is inconsistent
with our precedent-- and it is dubious public policy-- to constrain this Court’s ability to
discipline misbehaving judges. I would not self-impose such a limitation on our ability
“to protect the people from corruption and abuse on the part of those who wield judicial
power” in this fashion. In re Jenkins, 437 Mich 15, 28; 465 NW2d 317 (1991).
Indeed, the fact that this Court is charged with the affirmative obligation to guard
against judicial misconduct also leaves me indifferent to whether respondent’s answer in
this matter was or was not “verified.” The majority concludes that respondent’s “false
statement . . . was given in the answer to the complaint” but that “the JTC has not proved
[the answer] was verified . . . .” As a result, the majority holds that because it “cannot
conclude that the false statement in the answer was given under oath,” the most severe
sanction of removal is not warranted. But given that the majority concedes that
respondent made a “false statement” in his answer, I do not see why we should be
concerned about whether the false answer was proved to be sworn. The JTC is the
constitutional agency by which this Court investigates judicial misconduct, and I do not
understand why a respondent who intentionally frustrates our efforts at discovering the
truth of misbehavior should face lesser consequences for lying to the JTC if his response
to our inquiries was not sworn. Once again, these misstatements were made to this
Court’s investigative arm in the course of its investigation of respondent’s alleged
misconduct. 6 The distinction resting upon whether a person’s responses were sworn is
6
The examples offered by the majority justifying a lesser sanction for lies not under oath
are easily distinguishable. In In re Lawrence, 417 Mich 248; 335 NW2d 456 (1983), the
misrepresentation was contained in a letter sent some years earlier to a county concealed
10
critical to determining whether that person is criminally liable for his or her lies, but the
distinction is not critical with regard to judicial disciplinary proceedings.
The majority treats JTC proceedings as tantamount to ordinary adversarial
litigation. For example, it appears to fault the JTC examiner for failing to file an
amended complaint to include allegations of misconduct occurring during the
proceedings before the master, although the majority ultimately avoids reliance on this
issue, “because respondent has not challenged the JTC’s findings on this basis . . . .”
Perhaps, however, respondent has not undertaken such a challenge because it is not
relevant in light of MCR 9.209(B)(2), which makes clear that lies and misrepresentations
always provide an additional basis for discipline beyond what is alleged in the complaint
itself. 7 “Judicial disciplinary proceedings . . . are fundamentally distinct from all other
weapon licensing board, not to the JTC. In In re Binkowski, 420 Mich 97; 359 NW2d
519 (1984), the judge lied to his colleagues about a JTC investigation that he faced. And
in In re Milhouse, 461 Mich 1279 (2000), and In re Radzibon, 457 Mich 1201 (1998), the
respondent judges ultimately admitted to their lies, unlike respondent here. None of these
cases comports with the facts in this case-- in this case, the respondent has persisted in a
lie made to this Court’s investigative arm.
7
The majority states that reliance on this court rule is “like saying that a criminal
defendant need not be charged in an information or indictment with perjury for lying at
his trial for larceny because a statute on the books makes perjury a crime.” First, this
reflects the majority’s misplaced analogy to criminal proceedings. Second, it essentially
renders this portion of MCR 9.209(B)(2) nugatory. The rule requires that a respondent
file an answer including “a full and fair disclosure of all facts and circumstances
pertaining to the allegations regarding the respondent,” and it places the respondent on
notice that lies in that answer constitute an additional basis for discipline beyond the
contents of the complaint. Unlike a statute establishing a substantive criminal offense
such as perjury, MCR 9.209(B)(2) does not propound that lying is a disciplinable
offense-- a proposition effected by MRPC 3.3(a)(1) and MCR 9.205(B)(2)-- but rather
places a respondent on notice that lies contained in his or her answer, but not charged in
the complaint, constitute a potential basis for additional discipline.
11
legal proceedings, whether civil or criminal.” Jenkins, 437 Mich at 28. In ordinary civil
or criminal proceedings, some compromise of the truth-seeking function of the judicial
process is necessarily tolerated in exchange for furthering other important constitutional
and societal values. Those concerns are of significantly lesser weight in the context of
judicial disciplinary proceedings because it is the “integrity” of the judicial process that is
paramount, and that integrity is maintained by appropriately disciplining judges who lie
or misrepresent the facts. We have, for example, signaled that the “exclusionary rule”
may not apply in judicial disciplinary proceedings. See id. (“[T]he unique character and
purpose of judicial disciplinary proceedings might incline us not to apply the
exclusionary rule . . . .”); see also In re Servaas, 484 Mich 634, 677; 774 NW2d 46
(2009) (MARKMAN, J., dissenting) (“This Court cannot, as a function of the examiner’s
behavior, avoid its responsibility to address respondent’s misconduct.”). We have also
identified as an aggravating factor in judicial disciplinary proceedings “misconduct that
undermines the ability of the justice system to discover the truth of what occurred in a
legal controversy . . . .” In re Brown, 461 Mich 1291, 1293 (2000). In the end, the
paramount concern in a judicial disciplinary proceeding pertains to whether and when an
individual is fit to hold judicial office and to exercise the judicial power.
Further, our court rules themselves support the notion that judicial discipline is not
on par with ordinary adversarial criminal litigation. MCR 9.203(D) provides that “[a]n
investigation or proceeding under this subchapter may not be held invalid by reason of a
non-prejudicial irregularity or for an error not resulting in a miscarriage of justice.” In
failing to accord consideration to respondent’s false statements in his answer to the
complaint, the majority essentially renders that portion of the disciplinary proceedings
12
invalid by reason of a procedural error. The majority identifies no prejudice that
respondent would suffer if he were to be held accountable for the false statements he
provided in the answer to the complaint, whether or not the JTC has shown that his
answer was verified. Holding respondent accountable for his false statements would
hardly seem to result in any articulable “miscarriage of justice.” Indeed, such a
miscarriage results, in my judgment, only from failing to hold respondent responsible for
false statements made in the course of a JTC investigation. The majority fails to show
how verification is related in any way to the ends served by the judicial disciplinary
process, in particular, the preservation of the integrity and reputation of our state’s
judiciary.
The majority similarly has not shown that prejudice or any miscarriage of justice
would result if this Court were to recognize misconduct committed by the respondent that
was identified by the master but neither specifically adopted nor rejected by the JTC. 8
Respondent knew that he was obliged to tell the truth in these proceedings, and he knew
on the strength of Ferrara, Adams, and McCree that if we did not give credence to his
explanation for his behavior, he could be disciplined for his false explanations.
Therefore, respondent would not be unfairly surprised if we were to conclude that the
8
If the concern of the majority is with the respondent’s being afforded “an opportunity to
provide input” regarding areas of concern that appear to trouble the majority based on its
handling of the JTC recommendation, why does the majority not simply remand to the
JTC under MCR 9.225 so that the JTC might specifically evaluate each of the master’s
findings, as we did on strikingly similar facts in In re Logan, 779 NW2d 249 (Mich,
2010)? See also In re Brown, 461 Mich 1209 (1999); In re Brown, 461 Mich 1291(2000); In re Hathaway, 461 Mich 1296 (2000); In re Chmura, 461 Mich 517; 608
NW2d 31 (2000).
13
record contained a preponderance of evidence that he had lied under oath. It is entirely
“practicable and fair” to hold respondent accountable for his lies. MCR 9.200. I do not
see how it is inconsistent with “the rights of the judges who are governed by these rules,”
id., to take notice of respondent’s on-the-record lies when he was well aware that it is this
Court’s longstanding practice to do so. The majority inadvertently erects a new and
unnecessary obstacle to “preserv[ing] the integrity of the judicial system,” “enhanc[ing]
public confidence in that system,” and “protect[ing] the public [and] the courts . . . .” Id.Nor do I share the majority’s concern about “creat[ing] immense pressure on judges to
stipulate to the charges,” because all that a respondent need do is tell the truth as a
continuing condition of being “entrusted with [the] judicial privilege,” Justin, 490 Mich
at 424 (quotation marks and citation omitted). 9
In sum, I have two areas of disagreement with the majority, both of which concern
this Court’s role in the judicial disciplinary process. First, I disagree with the majority’s
implication that this Court cannot consider evidence of misconduct derived from the
record but not specifically alleged as misconduct in the JTC’s recommendation to this
9
While I would hardly urge such a course of action, if the majority’s paramount concern
is merely to ensure that allegations of misconduct are formally contained in the JTC’s
recommendation to this Court, what would stop the JTC from effectively insulating its
recommendations from claims of error by simply incorporating by reference the record
developed by the master, any alternative findings and conclusions on which the master
relied, or both? On what basis would a simple statement to that effect fail to satisfy the
majority? That something this peremptory and insubstantial could insulate the JTC’s
recommendations from being faulted under the majority’s analysis only illustrates how
fundamentally harmless the JTC’s purported “defects” are in the instant case and
consequently how markedly the majority misapprehends MCR 9.203(D). It is difficult to
understand how the JTC’s omission of something this insubstantial could constitute a
“miscarriage of justice” under the court rule.
14
Court. 10 Second, I disagree with the majority’s assertion that when a respondent has
indisputably lied in his or her answer to a complaint, the JTC’s failure to prove that the
respondent’s answer was verified justifies a lesser sanction than if the answer had been
verified. As applied to the instant case, I would first recognize and assess respondent’s
on-the-record lies in his sworn testimony before the master when he denied intending to
interfere with the police investigation or subsequent prosecution of his intern. I would
then treat the lie in respondent’s answer-- a lie that this Court unanimously recognizes--
without regard to whether it was verified. Regardless of this, respondent’s lie constituted
an effort at frustrating this Court in carrying out its constitutional duty to uphold the
integrity and reputation of the judiciary. I would impose a sanction that takes all of
respondent’s lies into account in determining an appropriate sanction. Accordingly, I
respectfully dissent.
Stephen J. Markman
Brian K. Zahra
WILDER, J., took no part in the decision of this case.
10
I also note that MCR 9.205(B) enables this Court to order a respondent “to pay the
costs, fees, and expenses incurred by the commission in prosecuting the complaint only if
the judge engaged in conduct involving fraud, deceit, or intentional misrepresentation, or
if the judge made misleading statements to the commission, the commission’s
investigators, the master, or the Supreme Court.” Limiting our ability to take notice of
lies and other misrepresentations also unnecessarily circumscribes our ability to recoup
costs where costs would otherwise constitute part of an appropriate remedy.
15