in Re Hon Beverley Nettles-Nickerson ( 2008 )

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
FILED JUNE 13, 2008
In re Honorable BEVERLEY
NETTLES-NICKERSON, Judge, 30th
Circuit Court. No. 133929
_______________________________
BEFORE THE ENTIRE BENCH
MEMORANDUM OPINION.
On June 11, 2008, the Court heard oral argument from the parties
concerning the Judicial Tenure Commission’s findings and recommendations in
this matter. The Judicial Tenure Commission’s Decision and Recommendation
for Order of Discipline is attached as an exhibit to this opinion.
We adopt in part the recommendations made by the Judicial Tenure
Commission and order that the respondent is removed from office, effective
immediately, on the basis of the following misconduct:
(1) Respondent twice made false statements under oath in
connection with her divorce proceeding (Count I);
(2) Respondent made and solicited other false statements
while not under oath, including the submission of fabricated
evidence to the Judicial Tenure Commission (Count II);
(3) Respondent improperly listed cases on the no-progress
docket (Count III);
(4) Respondent was absent excessively and engaged in
belated commencement of proceedings, untimely adjournments, and
improper docket management (Count IV);
(5) Respondent allowed a social relationship to influence
the release of a criminal defendant from probation (Count VI); and
(6) Respondent recklessly flaunted her judicial office
(Count IX).
See page 2 of the Judicial Tenure Commission’s Decision and Recommendation
for Order of Discipline in the attached exhibit.
The respondent is no longer a judicial officer and will not be an incumbent
at the time of the 2008 30th Circuit Court election. We decline the Judicial Tenure
Commission’s additional recommendation to conditionally suspend the
respondent.
On the basis of Counts I and II, costs are imposed on the respondent judge
in the amount of $12,000. CR 9.205(B).
M
This judgment is effective immediately.
Clifford W. Taylor
Michael F. Cavanagh
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
2
STATE OF MICHIGAN
SUPREME COURT
In re Honorable BEVERLEY
NETTLES-NICKERSON, Judge, 30th
Circuit Court. No. 133929
_______________________________
WEAVER, J. (concurring in part and dissenting in part).
I concur in the majority’s decision and reasons for removing respondent
Judge Beverley Nettles-Nickerson from her current position as judge of the 30th
Circuit Court.
I dissent from the majority’s decision to assess against the respondent any
costs of the Judicial Tenure Commission proceeding. As I stated previously in
regard to the proposed assessment of costs against a respondent judge:
[T]here is no constitutional authority to assess costs against a
judge. Subsection 2 of Const 1963, art 6, § 30 provides that “the
supreme court may censure, suspend with or without salary, retire or
remove a judge . . . .” As I stated in my concurrence in In re
Noecker, 472 Mich 1, 18-19 (2005), “Nothing in this constitutional
provision gives this Court any authority to discipline the judge by
assessing the judge the costs of the Judicial Tenure Commission
proceedings against him or her.” [In re Trudel, 477 Mich 1202,
1203 (2006) (Weaver, J., concurring).]
Further, as I stated in a subsequent order by a majority of this Court
granting a default judgment against Judge Trudel:
While under Const 1963, art 6, § 30(2) the Supreme Court
also has the authority to “make rules implementing this section
[concerning the Judicial Tenure Commission],” the Supreme Court
cannot create Judicial Tenure Commission rules that authorize the
Judicial Tenure Commission to recommend to the Supreme Court
something that the Supreme Court does not have constitutional
authority to do. The rule-making authority available to the Supreme
Court is limited to making rules “implementing this section.” And,
because “this section” provides that “the supreme court may censure,
suspend with or without salary, retire or remove a judge,” this Court
only has the authority to make rules implementing the section in
connection with the censure, suspension with or without salary, or
retirement or removal of a judge. Assessment and collection of
costs is not included in this authority to discipline a judge. As the
Supreme Court does not have authority to assess and collect costs
granted to it by the Michigan Constitution, there is no corresponding
rule-making authority to provide for the Judicial Tenure
Commission to recommend to the Supreme Court the assessment
and collection of costs against a respondent judge. This Court may
not delegate authority that it lacks in the first place. [In re Trudel,
480 Mich 1213, 1214 (2007) (Weaver, J., dissenting).]
Thus, the majority’s use of its unconstitutional, law-creating court rule
authorizing the assessment of costs against disciplined judges is an unrestrained
interpretation of Const 1963, art 6, § 30. The majority of this Court should
exercise judicial restraint in its interpretation of Const 1963, art 6, § 30 and leave
it to the people of Michigan to decide, by constitutional amendment, if they want
costs assessed against disciplined judges.
Additionally, given the vast power vested in the executive director and the
general counsel of the Judicial Tenure Commission, and given the possibility of
due process violations against a respondent judge, it is becoming apparent that the
rules concerning the operation of the Judicial Tenure Commission, created by this
Court pursuant to Const 1963, art 6, § 30, should be reexamined by this Court and
the people.
Elizabeth A. Weaver
2
EXHIBIT