in Re Hon Sylvia a James ( 2012 )

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Opinion Robert P. Young, Jr. Michael F. Cavanagh
Marilyn Kelly
Stephen J. Markman
Diane M. Hathaway
Mary Beth Kelly
Brian K. Zahra
FILED JULY 31, 2012
STATE OF MICHIGAN
SUPREME COURT
In re Honorable SYLVIA A. JAMES, No. 143942
Judge, 22d District Court
BEFORE THE ENTIRE BENCH
MARILYN KELLY, J.
The Judicial Tenure Commission (JTC) has recommended that this Court remove
22d District Court Judge Sylvia A. James from office for judicial misconduct. Judge
James (respondent) has filed a petition asking this Court to reject that recommendation.
We affirm the JTC’s findings and its recommendation and conclude that it is necessary
and appropriate to remove Judge James from office for the remainder of her term.
The evidence establishes that respondent misappropriated public funds, some of
which were intended for victims of crime in the city of Inkster. She inappropriately spent
much of this money on self-promoting advertisements and travel expenses for herself and
various other court employees. She treated these funds, as the master phrased it, as her
own “publicly funded private foundation.” In addition, she (1) denied people access to
the court by instituting and enforcing an improper business-attire policy, (2) employed a
family member in violation of court policy, and (3) made numerous misrepresentations of
fact under oath during the investigation and hearing of this matter.
The cumulative effect of respondent’s misconduct, coupled with its duration,
nature, and pervasiveness, convinces this Court that she is unfit for judicial office.
Although some of her misconduct, considered in isolation, does not justify such a severe
sanction, taken as a whole her misconduct rises to a level that requires her removal from
office. Therefore, we adopt the recommendations of the JTC, except with respect to the
costs respondent will be ordered to pay, as will be detailed later.
I. FACTS AND PROCEDURAL HISTORY
Respondent is the sole judge in the 22d District Court in Inkster, Michigan. She
is bound by the standards for discipline set forth in MCR 9.104 and MCR 9.2051 and is
subject to the duties and responsibilities imposed on her by this Court.
1
MCR 9.104, entitled in part “Grounds for Discipline in General,” states in relevant part:
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;
(4) conduct that violates the standards or rules of professional
conduct adopted by the Supreme Court;
2
(5) conduct that violates a criminal law of a state or of the United
States, an ordinance, or tribal law pursuant to MCR 2.615;
(6) knowing misrepresentation of any facts or circumstances
surrounding a request for investigation or complaint;
(7) failure to answer a request for investigation or complaint in
conformity with MCR 9.113 and MCR 9.115(D);
(8) contempt of the board or a hearing panel[.]
MCR 9.205, entitled “Standards of Judicial Conduct,” states:
(A) Responsibility of Judge. A judge is personally responsible for
the judge's own behavior and for the proper conduct and administration of
the court in which the judge presides.
(B) Grounds for Action. A judge is subject to censure, suspension
with or without pay . . . or removal for . . . misconduct in office, persistent
failure to perform judicial duties, habitual intemperance, or conduct that is
clearly prejudicial to the administration of justice. In addition to any other
sanction imposed, a judge may be ordered 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.
(1) Misconduct in office includes, but is not limited to:
* * *
(e) misuse of judicial office for personal advantage or gain, or for the
advantage or gain of another; and
(f) failure to cooperate with a reasonable request made by the
commission in its investigation of a judge.
(2) Conduct in violation of the Code of Judicial Conduct or the
Rules of Professional Conduct may constitute a ground for action with
regard to a judge, whether the conduct occurred before or after the
respondent became a judge or was related to judicial office.
3
On October 26, 2011, the JTC filed Formal Complaint No. 88 against respondent,
alleging four counts of misconduct.2 It asserted that respondent had engaged in (1)
financial improprieties, (2) administrative improprieties, (3) employment improprieties,
and (4) misrepresentations to the JTC. On that same date, it also filed a petition for
interim suspension and a request for appointment of a master. On December 15, 2011,
this Court appointed retired District Court Judge Ann Mattson as the master and ordered
respondent suspended from office with pay until further order of the Court.3 She has
been on suspension ever since.
A formal master’s hearing began on January 23, 2012, and concluded on March 1,
2012. On April 23, 2012, the master filed her findings of fact and conclusions of law
with the JTC. She concluded that the examiner had proven portions of all four counts by
a preponderance of the evidence.4 In summary, the master stated that “[r]espondent
failed to diligently discharge her administrative responsibilities . . . [and] [h]er actions
(3) In deciding whether action with regard to a judge is warranted,
the commission shall consider all the circumstances, including the age of
the allegations and the possibility of unfair prejudice to the judge because
of the staleness of the allegations or unreasonable delay in pursuing the
matter.
2
An amended formal complaint was filed on March 1, 2012.
3
In re James, 490 Mich. 936 (2011).
4
The examiner must present the evidence in support of the charges set forth in the
complaint and at all times has the burden of proving the allegations by a preponderance
of the evidence. MCR 9.211(A); see also In re Ferrara, 458 Mich. 350, 360; 582 NW2d
817 (1998).
4
demonstrated her lack of respect for the law.” Respondent was found to have committed
misconduct in office as defined in Const 1963, art 6, § 30 and MCR 9.205(B)(1), and to
have violated MCR 9.104(1) and (2); MCR 9.205(A); Code of Judicial Conduct, Canons
1, 2(A) through (C), 3(A)(1) and (2), 3(B)(1), and 6(B); MCL 600.4803; MCL 600.8379;
MCL 750.174; MCL 750.175; MCL 750.218; MCL 600.8501; MCL 600.8507; MCL
750.249; and Administrative Order No. 1996-11.
The JTC issued its decision and recommendations for discipline on June 11, 2012.
It adopted all but one5 of the master’s findings, concluding that “[r]espondent’s
prolonged and repeated pattern of misconduct in purposefully violating statutes,
misappropriating public funds, and making intentional misrepresentations both before
and after these proceedings commenced render her unfit to sit as a judge.”
In determining the sanctions appropriate for respondent, the JTC considered the
seven factors that the Court set forth in In re Brown.6 It concluded that four of the seven
weighed in favor of severe sanctions. It recommended that respondent be removed from
office and that she pay $81,181.88 for costs, fees, and expenses incurred as a result of this
investigation.
5
The JTC did not adopt a finding by the master that respondent had misrepresented
whether any food purchased with Community Service Program funds had ever been taken
to her home.
6
In re Brown, 461 Mich. 1291 (2000).
5
II. ANALYSIS
The Michigan Constitution grants this Court general superintending control over
all the state courts in Michigan.7 It authorizes this Court to “censure, suspend . . . or
remove a judge for . . . misconduct in office, persistent failure to perform his duties,
habitual intemperance or conduct that is clearly prejudicial to the administration of
justice” upon recommendation of the JTC.8 The Court may accept or reject the
recommendations of the JTC or modify them by imposing greater, lesser, or entirely
different sanctions.9
We review the recommendations of the JTC de novo.10 We also review de novo
the JTC’s findings of fact.11
After reviewing the record and hearing oral arguments by the parties, the Court
agrees with the findings of the JTC and adopts its recommendation regarding sanctions.
A. FINANCIAL IMPROPRIETIES
The master and the JTC both found that respondent had engaged in inappropriate
financial transactions and practices. We agree. The most significant misconduct
involved respondent’s misappropriation and abuse of Community Service Program (CSP)
7
Const 1963, art 6, § 4.
8
Const 1963, art 6, § 30(2).
9
MCR 9.225.
10
Ferrara, 458 Mich. at 358-359.
11
In re Jenkins, 437 Mich. 15, 18; 465 NW2d 317 (1991).
6
funds.12 These funds were collected from members of the public and were indisputably
subject to MCL 775.22 and MCL 780.826a,13 which govern how they should be allotted.
12
Respondent established the CSP to make available sentencing alternatives for
nonviolent defendants. This type of program can be found at various courts in the state.
Defendants were sentenced to the CSP as an alternative to, or sometimes in addition to,
incarceration. They were charged $10 to $25 a day in oversight fees and were required to
perform various community-service tasks within the city of Inkster, such as mowing
lawns for the elderly and maintaining the court grounds. Some of the fees were allocated
to the CSP.
13
MCL 775.22 states in relevant part:
(1) If a person is subject to any combination of fines, costs,
restitution, assessments, probation or parole supervision fees, or other
payments arising out of the same criminal proceeding, money collected
from that person for the payment of fines, costs, restitution, assessments,
probation or parole supervision fees, or other payments shall be allocated as
provided in this section.
(2) Except as otherwise provided in this subsection, if a person is
subject to payment of victim payments and any combination of other fines,
costs, assessments, probation or parole supervision fees, or other payments,
50% of all money collected from that person shall be applied to payment of
victim payments, and the balance shall be applied to payment of fines,
costs, supervision fees, and other assessments or payments. If any fines,
costs, supervision fees, or other assessments or payments remain unpaid
after all of the victim payments have been paid, any additional money
collected shall be applied to payment of those fines, costs, supervision fees,
or other assessments or payments. If any victim payments remain unpaid
after all of the fines, costs, supervision fees, or other assessments or
payments have been paid, any additional money collected shall be applied
toward payment of those victim payments.
The master and the JTC cited MCL 780.766a, the allocation provision in article 1 of the
Crime Victim’s Rights Act, MCL 780.751 et seq., applicable to felonies. It is clear that
the intended reference was to MCL 780.826a, which is found in article 3 of that act, MCL
780.811 et seq. This is the article applicable to misdemeanors, over which respondent
presided. We note, however, that the two provisions are virtually identical and that the
presumably inadvertent citation error does not affect our analysis or the result.
7
The statutes require that the first 50 percent of certain CSP-fund payments be allocated to
crime victims in restitution for their financial losses as a result of criminal acts.
MCL 780.826a states in relevant part:
(1) If a person is subject to any combination of fines, costs,
restitution, assessments, probation or parole supervision fees, or other
payments arising out of the same criminal proceeding, money collected
from that person for the payment of fines, costs, restitution, assessments,
probation or parole supervision fees, or other payments ordered to be paid
in that proceeding shall be allocated as provided in this section. If a person
is subject to fines, costs, restitution, assessments, probation or parole
supervision fees, or other payments in more than 1 proceeding in a court
and if a person making a payment on the fines, costs, restitution,
assessments, probation or parole supervision fees, or other payments does
not indicate the proceeding for which the payment is made, the court shall
first apply the money paid to a proceeding in which there is unpaid
restitution to be allocated as provided in this section.
(2) Except as otherwise provided in this subsection, if a person is
subject to payment of victim payments and any combination of other fines,
costs, assessments, probation or parole supervision fees, or other payments,
50% of each payment collected by the court from that person shall be
applied to payment of victim payments, and the balance shall be applied to
payment of fines, costs, supervision fees, and other assessments or
payments. If a person making a payment indicates that the payment is to be
applied to victim payments, or if the payment is received as a result of a
wage assignment under [MCL 780.826] or from the sheriff under [MCL
780.830a], the payment shall first be applied to victim payments. If any
fines, costs, supervision fees, or other assessments or payments remain
unpaid after all of the victim payments have been paid, any additional
money collected shall be applied to payment of those fines, costs,
supervision fees, or other assessments or payments. If any victim payments
remain unpaid after all of the fines, costs, supervision fees, or other
assessments or payments have been paid, any additional money collected
shall be applied to payment of those victim payments.
8
The court’s judicial information system (JIS) is programmed to automatically
apply these payments in compliance with the statutes. Notwithstanding that fact,
respondent ordered her clerks to override the JIS to allocate them first to the court’s CSP
account, which did not use the first 50 percent for crime-victim restitution.14
Respondent expended monies intended for crime-victim restitution and for
additional legislatively mandated priorities to other sources in a manner that she alone
controlled. She expended thousands of dollars on items having no relation to the
operation of the CSP. She choose the charities and organizations that would receive the
funds and personally signed each of the checks. Many of these expenditures were for
advertisements that promoted the judge, prominently displaying her picture and only
tangentially mentioning the CSP. She also allocated CSP funds to local charities of her
choice15 and spent them on travel16 and other expenses as she deemed fit.17
14
The master compared deposits in the court’s CSP account before respondent’s
suspension with deposits made after respondent had been suspended. At that point, the
interim judge who replaced respondent had directed the clerks to stop overriding the JIS
system. For example during the month of August 2010, under respondent’s
administration, $7,366 was credited to the CSP account. During the month of August
2011, under the interim judge, only $433 was deposited into the CSP account.
Respondent argued that the difference is because there were fewer participants in the
program under the interim judge. The evidence established that this was not true. The
interim judge testified that the program was fully operational in August 2011. The
court’s probation officer also supported this statement.
15
Respondent authorized the distribution of more than $14,000 from the CSP account to
local charitable, fraternal, and religious organizations from 2008 until her suspension in
2011. These expenditures included donations for a “table for ten at a testimonial event,”
a local basketball camp, a police auxiliary annual picnic, cheerleader uniforms, and a
school “Europe fund.” None was a proper operational expenditure of the CSP. Proper
expenditures were only those that paid for the operation of the program, such as flowers
to be planted or lawn mowers to maintain the lawns of needy Inkster senior citizens.
9
The facts also show that respondent authorized payments to three CSP codirectors
of stipends in the amount of $650 a month. These individuals were paid as independent
contractors, despite the fact that they were already salaried employees of respondent’s
court. Between late 2008 and early 2011, one of these individuals received more than
$8000, the second more than $21,000, and the third more than $19,000 paid from CSP
funds. Respondent required all three to submit monthly statements of tasks performed
but did not require them to document how many hours they worked. Some of their CSP
tasks were performed during regular court business hours. The individuals spent between
15 and 20 hours a week on CSP tasks and were paid each month, in advance, regardless
of whether they submitted monthly reports. Also, they were paid without regard to the
number of hours worked. In some instances, they were paid two or even three months in
advance.
Respondent also failed to establish a budget for the CSP account, as mandated by
MCL 600.8271. She claimed that she was “not put on notice” that she was required to
16
Respondent also used the account to fund her own and other employees’ travel
expenses totaling $13,000, including travel to drug court conferences in California and
Massachusetts. Respondent repeatedly estimated expenses for herself and other
employees and wrote checks for the estimated expenses from the CSP account. None of
the recipients was required to track or document his or her spending or reimburse the
court for expense payments not used for court-related business. This practice violated
Code of Judicial Conduct, Canon 6(B). Drug court conferences were not proper
operational expenses of the CSP. It is also worth noting that Inkster has never established
a drug court.
17
Additional expenses included gifts for board members of the Tax Increment Finance
Authority, embroidered shirts bearing respondent’s name, a court newsletter, funeral
flowers, and expenses related to Law Day. None of these was a proper operational
expenditure of the CSP.
10
create a budget. However, an October 2007 audit report, which respondent admitted she
had read, apprised respondent that state law required a budget for all general and special
revenue accounts, including the CSP.18 Thus, although she had been warned that she was
disobeying state law, respondent continued to refuse to establish a budget for the CSP
account four years later.
B. ADMINISTRATIVE IMPROPRIETIES
The master and the JTC found that respondent implemented an unreasonable
business-attire policy and allowed it to be enforced at the court, resulting in people being
denied access to the court. The Court agrees with this finding.
The respondent instituted the business-attire policy because some people wore
clothing in court that inappropriately exposed their bodies or suggested that they
belonged to a gang. The policy was intended to apply only to people in the courtroom,
not to everyone who wished to enter the courthouse.
However, the record shows that court employees enforced the business-attire
policy against everyone who sought entry to the courthouse. There was evidence that
litigants were prejudiced by this policy and that some visitors were inappropriately
denied access to the courthouse. In her responsive brief, respondent argued that
“somehow [the business-attire policy] was improperly enforced . . . .” (Emphasis
omitted.) She refused to acknowledge that she alone was responsible for overseeing the
18
The “control deficiency” section of this audit report stated: “No budget was prepared
for the Community Service Fund which is a special revenue fund. According to the state
budget act, a budget is required for all general and special revenue funds. A budget
should be prepared and approved prior to July 1 of each fiscal year.”
11
enforcement of her dress policy in the 22d District Court. The master noted that,
although the judicial canons allow a judge to require that certain attire be worn in the
courtroom, the requirements must be reasonable.
In addition, respondent simply cannot be allowed to plead ignorance about how
her business-attire policy was enforced in the court she controlled. Under the court rules,
a “judge is personally responsible for the judge's own behavior and for the proper
conduct and administration of the court in which the judge presides.”19 Respondent was
the lone judge in her court, and she was responsible for implementing the business-attire
policy; therefore, she was responsible for its proper and reasonable enforcement.20
Respondent should have known that people were appearing for court and being turned
away because of her policy. And she should have taken steps to prevent this from
happening.
C. EMPLOYMENT IMPROPRIETIES
The master and the JTC found that respondent knowingly rehired an unqualified
magistrate in violation of MCL 600.8501 and MCL 600.8507 and misrepresented that he
was qualified.21 We agree. Even more troubling, respondent required the magistrate to
19
MCR 9.205(A).
20
The master also found that this conduct violated MCR 9.104(1) because it was
prejudicial to the proper administration of justice.
21
A magistrate is required by MCL 600.8501 and MCL 600.8507 to be a resident and
registered elector. Respondent attempted to circumvent these requirements by hiring a
magistrate pursuant to a multidistrict plan. The State Court Administrative Office
rescinded the appointment because the magistrate did not meet the residency
requirements. One month later, respondent reappointed the same magistrate and signed
Local Administrative Order 2002-5, attesting that he was a resident and registered elector
12
sign bench warrants in violation of MCL 600.8511.22 As a consequence, approximately
15,000 bench warrants were improperly issued and had to be reissued after respondent’s
suspension. Respondent testified that she did not instruct the magistrate to sign the
warrants. However, the magistrate testified that signing bench warrants was one of his
responsibilities. Making respondent’s contention even less credible is the fact that she
was the only person at the 22d District Court who had the legal authority to sign bench
warrants. It is impossible that she would not have noticed the significant drop in the
number of warrants she was signing after rehiring this magistrate.
The JTC findings also established that respondent violated the Supreme Court’s
antinepotism policy by hiring her niece. The Court’s antinepotism policy23 allows family
members to continue working for the court if they were employed by the court at the time
the policy was enacted. Respondent’s niece worked for the court when the policy was
enacted but later resigned. About six months later, respondent rehired her niece, which
violated the policy. Respondent claimed that although she knew of the violation, she
thought the rehiring complied with a policy of the city of Inkster. Paradoxically,
respondent had told the city that court employees were not subject to the city’s
employment rules. Respondent had a duty to contact the State Court Administrative
of Inkster. Respondent argued that she thought the magistrate was qualified. He testified
that he was not a resident of Inkster and was not a registered voter in the city.
Respondent failed in her duty to verify this information before she attested to its
truthfulness in LAO 2002-5 and before she rehired the magistrate.
22
MCL 600.8511 permits magistrates to sign arrest warrants, not bench warrants.
23
Administrative Order No. 1996-11
13
Office to determine the proper course of action when court policy conflicted with the
city’s policy. She made no effort to do this.
D. MISREPRESENTATIONS TO THE MASTER AND THE JTC
The master and the JTC found that respondent made misrepresentations during the
investigation and the hearing, including lying under oath. This Court agrees with those
findings.
In March 2011, using court funds, respondent purchased a $350 airline ticket for
herself to attend a judicial conference in California. She did not attend the conference
and exchanged the unused ticket for another that she used for a non-court-related trip.
Respondent testified before the master that the airline ticket was “worthless.” However,
the record established that after the airline assessed a penalty of $150, respondent used
the remaining $200 toward a $249 plane ticket for personal travel after being suspended
from office.
Another incident involved a plane ticket for a conference in Massachusetts.
Respondent issued a check from the CSP account to herself for $349.40, which she
estimated to be the round-trip cost for the trip. She actually paid $7.50 for the ticket she
purchased using frequent-flier miles. It is undisputed that respondent did not reimburse
the CSP account for the difference. She testified that she was not overcompensated for
her ticket because it would have cost $1,137.50 if she had paid for the 32,500 frequent-
flier miles she used to purchase the ticket.24 However, testimony at the hearing
established that frequent-flier miles have no actual cash value because they cannot be
24
The price for a frequent-flier mile is $0.35.
14
sold or converted for cash. They are more akin to coupons. It was also shown that
respondent could have purchased a ticket for much less than $1,137.50. It is apparent
that respondent knew this because she wrote herself a check for $349.40, not $1,137.50.
Respondent also testified under oath that after appointing the magistrate she
informed him that “he would have to become a registered elector as well as a resident of
the city of Inkster.” However, the magistrate testified to the contrary, saying that he
“never knew” that being a registered elector was a requirement of the position.
Moreover, respondent testified that she received a letter from the magistrate confirming
his qualifications and attaching a copy of his voter’s registration card. However, the
magistrate testified that he did not provide such a letter. Moreover, he said that he knew
“for certain” that he had never provided a copy of his voter’s registration card to
respondent because he was never a registered voter in Inkster. The master specifically
found the magistrate’s testimony “credible” and respondent’s testimony “not credible.”
As the master was in a superior position to observe the witnesses’ demeanor and assess
their credibility,25 we are left with the conclusion that respondent lied under oath.
As discussed previously, respondent also denied that she instructed the magistrate
to sign bench warrants. However, the magistrate testified that respondent assigned this
duty to him. The master specifically found the magistrate’s “testimony that Respondent
required him to sign bench warrants credible.”
Other misrepresentations made by respondent included the following: (1) she
denied receiving any personal benefit from the various advertisements she purchased
25
In re Noecker, 472 Mich. 1, 9-10; 691 NW2d 440 (2005).
15
with CSP funds, (2) she denied that she was on notice of the requirement to establish a
budget for the CSP account, and (3) she denied failing to take appropriate action to
recover refunds owing from overpayments for court-related travel.
III. CONCLUSION
“The purpose of these proceedings is not to impose punishment on the respondent
judge, . . . but to protect the people from corruption and abuse on the part of those who
wield judicial power.”26 In determining appropriate sanctions, we seek to “restore and
maintain the dignity and impartiality of the judiciary and to protect the public.”27
In a case similar to this one that also involved substantial and pervasive
misconduct, we removed a judge from office for the remainder of his term.28 Judge
James’s misconduct persisted for years, permeating and infecting every corner of the 22d
District Court. For this reason and for the others stated in this opinion, we agree with the
JTC’s recommendation and order that respondent be removed from office.29
The JTC is directed to submit a bill of costs to the Court. It is to include an
itemization pursuant to MCR 9.205(B) showing the costs, fees, and expenses incurred by
the JTC in prosecuting the complaint.30 In addition, because certain of the
26
Jenkins, 437 Mich. at 28.
27
Ferrara, 458 Mich. at 372.
28
In re Justin, 490 Mich. 394; 809 NW2d 126 (2012).
29
Respondent is no longer a judicial officer and will not be an incumbent at the time of
the 2012 general election for the 22d District Court. See In re Nettles-Nickerson, 481
Mich. 321, 323; 750 NW2d 560 (2008).
30
MCR 9.205(B).
16
misappropriated funds were by law to be paid to crime victims, the JTC may specify the
amount that respondent should have allotted to victim restitution.31 Respondent shall be
given an opportunity to respond to the bill of costs.
Pursuant to MCR 9.226, the Court will not accept motions for rehearing on the
merits of this opinion. The Clerk of the Court is directed to issue the judgment order
forthwith in accordance with this opinion and MCR 7.317(C)(3).
Marilyn Kelly
Robert P. Young, Jr.
Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
CAVANAGH and HATHAWAY, JJ. We concur in the majority’s result of removal
from office and its decision to direct the Judicial Tenure Commission to submit an
itemized bill of costs pursuant to MCR 9.205(B).
Michael F. Cavanagh
Diane M. Hathaway
31
Const 1963, art 6, § 4. The superintending power of the Supreme Court has been
interpreted as extremely broad and inclusive:
“It is hampered by no specific rules or means for its exercise. It is so
general and comprehensive that its complete and full extent and use have
practically hitherto not been fully and completely known and exemplified.
It is unlimited, being bounded only by the exigencies which call for its
exercise. . . .”
. . . [I]ts purpose [is] “to keep the courts themselves ‘within bounds’
and to insure the harmonious working of our judicial system.” [In re Huff,
352 Mich. 402, 417-418; 91 N.W.2d 613 (1958) (citations omitted).]
17
STATE OF MICHIGAN
SUPREME COURT
In re Honorable SYLVIA A. JAMES, No. 143942
Judge, 22d District Court
MARKMAN, J. (concurring in part and dissenting in part).
I agree with the majority that Judge Sylvia James used several hundred thousand
dollars of public funds as her “personal piggybank,” without regard for either the law or
the victims of crime within the city of Inkster who were entitled to have received a share
of those funds; violated court policy by hiring a family member; and lied under oath
during the investigation and hearing conducted by the Judicial Tenure Commission (JTC)
and the master appointed in this case. I also agree that this misconduct compels the
removal of Judge James from office, as well as the payment of costs and restitution for
the funds diverted from the victims of crime within Inkster.
I respectfully disagree, however, that the sanctions imposed on Judge James by the
majority sufficiently address the continuing harm that her misconduct has inflicted on the
integrity of the judiciary in our state. The Michigan Constitution confers on this Court
the duty of exercising superintending control over the lower courts. In my judgment, this
responsibility to protect the integrity of our justice system requires in this case that Judge
James also be conditionally suspended for a period of six years, or one full term of the
court on which she currently presides.
I. INTEGRITY OF THE JUDICIARY
As Chief Justice Marshall so famously stated in Marbury v Madison, 5 US (1
Cranch) 137, 177; 2 L. Ed. 60 (1803), it is, “emphatically, the province and duty of the
judicial department, to say what the law is.” This, of course, leads to the question, “Who
shall keep the keepers?” In re Del Rio, 400 Mich. 665, 726; 256 NW2d 727 (1977)
(quotation marks and citation omitted). Our state constitution “vests this solemn
responsibility” in this Court. Id. at 726. Const 1963, art 6, § 4 provides:
The supreme court shall have general superintending control over all
courts; power to issue, hear and determine prerogative and remedial writs;
and appellate jurisdiction as provided by the rules of the supreme court.
We observed in Ransford v Graham, 374 Mich. 104, 108; 131 NW2d 201 (1964), that the
power of general superintending control may be exercised “for the purpose of protecting
the purity of judicial processes and maintaining public confidence in the administration of
justice.” As head of the state judiciary, this Court is charged with keeping the courts
within bounds and ensuring “‘the harmonious working of our judicial system.’” In re
Huff, 352 Mich. 402, 418; 91 NW2d 613 (1958) (citation omitted). This duty to protect
the integrity of the judiciary should not be taken lightly and must be considered in all
cases involving judicial misconduct. In In re Probert, 411 Mich. 210, 231; 308 NW2d
773 (1981), this Court stressed that our judicial system “is only as good as its constituent
judges.” We explained:
[W]hen one commits judicial misconduct he not only marks himself
as a potential subject of judicial discipline, he denigrates an institution.
Accordingly, a decision on judicial discipline must also be responsive to a
significant institutional consideration, “the preservation of the integrity of
the judicial system.” Institutional integrity, after all, is at the core of
institutional effectiveness.
2
Id. at 225. Indeed, proceedings such as this exist not to punish, but to maintain standards
of judicial fitness. In re Mikesell, 396 Mich. 517, 527; 243 NW2d 86 (1976).
Accordingly, the driving force behind judicial discipline is always the preservation of the
integrity of the judicial system:
The functions and decisions of a judge have an incalculable impact
on the community at large. A citizen’s experience with the law is often
confined to contact with the courts. Therefore, it is important not only that
the integrity of the judiciary be preserved but that the appearance of that
integrity be maintained.
* * *
“For generations before and since it has been taught that a judge
must possess the confidence of the community; that he must not only be
independent and honest, but, equally important, believed by all men to be
independent and honest. A cloud of witnesses testify that ‘justice must not
only be done, it must be seen to be done.’ Without the appearance as well
as the fact of justice, respect for the law vanishes in a democracy.”
Del Rio, 400 Mich. at 725 (citations omitted). To accomplish this end, the state and this
Court can prescribe appropriate standards of conduct for those who hold state elective
judicial office. Id. at 683. These standards, set forth in MCR 9.104 and MCR 9.205,1 are
designed to preserve judicial integrity by guarding against harmful conduct by those
holding elective judicial office.
Particularly in the circumstances of this case, it bears emphasizing that the elective
nature of the judicial office does not relieve this Court of its duty to preserve the integrity
of the judiciary, nor does the fact of popular election insulate or immunize a judge from
the consequences of his or her misconduct, any more than an elected public official is
1
MCR 9.104 sets forth general grounds for attorney discipline, while MCR 9.205 sets
forth rules of judicial conduct.
3
insulated or immunized by election to office from being held to account for criminal law
violations. To be sure, the elective power of the people does include the responsibility to
ensure the qualifications of those elected, but they do not bear this responsibility alone.2
Our Constitution provides that in addition to this responsibility on the part of the
electorate, this Court has a separate and distinct duty to uphold the integrity of the
judiciary. The people’s discharge of their duty through election does not discharge this
Court’s separate duty to preserve the integrity of the judiciary. Rather, this Court’s
obligation to maintain the integrity of the judicial branch is indissoluble, and the fact of
election does not dispel the harmful effects of judicial misconduct, either within or
beyond the boundaries of the election district.
As noted, our Constitution vests in this Court the primary responsibility to “keep
the keepers.” The people are entitled to a judiciary of the highest integrity, in both
appearance and in fact, and this Court always bears the obligation under the constitution
adopted by “we the people” to maintain and enforce standards of judicial fitness.
II. POWER OF THE COURT
This Court’s authority to sanction a judge can be found in Const 1963, art 6, §§ 4
and 30. While § 4 provides this Court’s general superintending authority over courts,
§ 30(2) provides, in relevant part:
On recommendation of the judicial tenure commission, the supreme
court may censure, suspend with or without salary, retire or remove a judge
2
The people’s right to the service of a judge whom they have elected is also not absolute,
but “is subject to express and distinct limitations and qualifications provided for by the
Constitution and statutes.” Del Rio, 400 Mich. at 685 n 6; see also Huff, 352 Mich. at 414.
4
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.
Furthermore, the JTC’s specific recommendation is not binding upon this Court. MCR
9.225 provides, in relevant part:
The Supreme Court shall review the record of the proceedings and
file a written opinion and judgment, which may accept or reject the
recommendations of the commission, or modify the recommendations by
imposing a greater, lesser, or entirely different sanction.
In other words, the fact that the JTC did not recommend a particular sanction does not
preclude this Court from imposing what it determines to be an appropriate and
proportionate sanction. Thus, the only limitation on this Court’s authority to redress
judicial misconduct in article 6, § 4 is that this Court may not use § 4 power to remove a
judge, although we may remove a judge upon a disciplinary recommendation of the JTC
under article 6, § 30. In fact, the superintending control power vested by § 4 is extremely
broad:
“The power of superintending control is an extraordinary power. It
is hampered by no specific rules or means for its exercise. It is so general
and comprehensive that its complete and full extent and use have
practically hitherto not been fully and completely known and exemplified.
It is unlimited, being bounded only by the exigencies which call for its
exercise. As new instances of these occur, it will be found able to cope
with them. Moreover, if required, the tribunals having authority to exercise
it will, by virtue of it, possess the power to invent, frame, and formulate
new and additional means, writs, and processes whereby it may be exerted.
This power is not limited by forms of procedure or by the writ used for its
exercise.”
Huff, 352 Mich. at 417-418 (citation omitted); see also In re Hathaway, 464 Mich. 672,
684 n 8; 630 NW2d 850 (2001).
5
Suspension from office is one sanction expressly listed in Const 1963, art 6, § 30.
This Court has clarified that “suspension,” which is an “‘ad interim stoppage or arrest of
official power and pay,’” is not synonymous with “removal,” which “‘terminates wholly
the incumbency of the office or employment.’” Probert, 411 Mich. at 229 n 11, quoting
Black’s Law Dictionary (4th rev ed), p 1616. Further, “[n]either ‘suspension’ nor
‘removal’ connotes a permanent disqualification from office.” Probert, 411 Mich. at 229
n 11 (emphasis in original). The power to suspend is also not limited to cases in which
the judge currently holds judicial office. As this Court noted in Probert, we possess the
authority under the constitution to issue conditional suspensions that “foreclose[] the
exercise of the prerogatives inhering in any judicial office to which the disciplined party
might have been elected or appointed in the future, the condition being, of course, re-
election or appointment to judicial office.” Id. at 224, citing Mikesell, 396 Mich. at 549,
Del Rio, 400 Mich. at 672 nn 3 and 4, and In re Bennett, 403 Mich. 178, 200; 267 NW2d
914 (1978).
Such conditional suspensions “disengage the disciplined party from judicial
power” only if the person occupies judicial office again during the term of the suspension
and do not permanently enjoin the person from holding judicial office. Probert, 411
Mich. at 224, 232-233. This Court has historically issued conditional suspensions when
other sanctions could not fully and adequately address the effect of particular misconduct
on the integrity of the judicial system. See id. at 225-228; Del Rio, 400 Mich. at 725-726.
Although often the greatest danger will pass once “an unfit or incompetent judge is
separated from judicial power,” this Court should not refuse to consider other sanctions,
6
such as conditional suspensions, when removal alone cannot sufficiently protect the
integrity of the judiciary. Probert, 411 Mich. at 227-228.
III. APPLICATION
Turning to the matter now before this Court, I believe that any sanction imposed
must address not only the immediate effects of Judge James’ misconduct, but also the
extent of the harm she has done to the integrity of the judicial system and the likelihood
that the harm will continue. In Probert, 411 Mich. at 228 n 10, we set forth a number of
factors to consider in determining the appropriateness of a sanction that operates after a
judge has left judicial office: (1) the likelihood of reelection to judicial office, (2) the
gravity of the misconduct, and (3) the importance of official reprobation to public
confidence and trust in the integrity of the judicial system. Consideration of these
factors, along with the specific details of Judge James’ misconduct in the instant case,
leads inescapably, in my judgment, to the conclusion that removal and restitution alone
cannot fully and adequately redress the harm that she has caused to the integrity of the
judiciary. Accordingly, I would impose on her a six-year conditional suspension in
addition to the removal imposed by the majority and the itemization of costs it has
ordered.
In In re Brown, 461 Mich. 1291, 1292-1293 (2000), this Court provided seven
factors to guide the formation of judicial-discipline recommendations. This case, I
believe, implicates the following Brown factors, all weighing in on the “more serious”
side of the scale: (1) misconduct that is part of a pattern or practice, (2) misconduct that is
prejudicial to the actual administration of the justice, (3) misconduct giving the
appearance of impropriety, and (4) misconduct that is premeditated or deliberated. After
7
considering these factors, I cannot agree with the majority that removal alone constitutes
an appropriate response to the seriousness of the misconduct at issue.
The evidence clearly establishes that Judge James’ misconduct was prejudicial to
the actual administration of justice, as her private use of hundreds of thousands of dollars
of public funds prevented those funds from being used for their proper purposes,
including provisions of assistance for the victims of crime within Inkster. As the
majority has detailed, Judge James treated public funds, including funds statutorily
required to go to victims of crime, as her own “publicly-funded, private charitable
foundation” of which she was the sole administrator. In so doing, Judge James routinely
ignored or circumvented legal requirements that conflicted with her own personal desires.
Although Judge James places great importance on the fact that she provided some of the
misappropriated funds to worthy charitable or civic organizations, she fails to
acknowledge that her “contributions” invariably served her own electoral purposes as
well and were sometimes the equivalent of publicly-subsidized campaign
advertisements.3 And not all the money, by any means, was given to such organizations.
Instead, Judge James also used public funds to pay for improper travel and, among other
things, provide gifts to other public officials who had undertaken actions favorable to her
court.
3
Judge James improperly authorized at least 47 checks (totaling more than $13,000) from
public funds to charitable, civic, fraternal, and religious organizations. In every instance,
the contribution predominately promoted Judge James, not the public mission of the court
or any particular court program.
8
Moreover, Judge James continues to fail to acknowledge that she possessed no
authority to expend public monies in violation of the law.4 Rather, she was entrusted,
both through her office and by statute, to distribute those funds according to the laws
enacted by the elected representatives of the people of Inkster and those of all other
residents of this state. In so doing, Judge James placed her own desires and preferences
above the law, and above the rights of the victims of crimes within the city of Inkster who
were entitled to these funds by the laws Judge James chose to ignore. This refusal to be
bound by the law effectively resulted in these victims of crime being victimized twice--
once by the criminal perpetrator and a second time by the very judicial body in which
they sought justice and restitution.5
4
If a bank teller, for example, accepted a check and deposited the check into her favorite
charitable account instead of depositing the funds into the account specified on the check,
the fact that the misdirected funds were given to a worthy charity would not justify the
teller’s misconduct of using someone else’s money for her own private purposes. Judge
James does not seem to clearly apprehend this and continues to justify her actions on the
ground that she did not directly put the money in her pocket. This was the crux of her
defense at the JTC and before this Court.
5
Judge James’ refusal to consider both the propriety and the effect of her actions was
also evident in her employment of a family member in violation of an antinepotism
policy and her institution and enforcement of a dubious business-attire policy for the
public. After instituting this policy, Judge James ignored the fact that both the policy and
its enforcement by court staff had the effect of denying some members of the public
access to the court. Importantly, this denial of access went beyond unnecessarily
inconveniencing members of the public; in at least one instance, court staff prevented a
party to a case from entering the building even to reschedule his hearing, resulting in a
default judgment being entered against him while he stood helplessly outside. It is a
Kafkaesque world indeed when a citizen has a judgment entered against him for failure to
appear by the very same court that prohibited his appearance in the first place.
9
Her improper institution and enforcement of the business-attire policy were also
prejudicial to the administration of justice, barring litigants’ access to the justice system
itself. Her improper hiring of her niece, in violation of the court’s antinepotism policy,
also communicated the appearance of impropriety. And virtually all of her misconduct
was thoroughly deliberate and premeditated, requiring that policies be instituted,
computer systems be overridden, expenditures be planned and implemented, records be
distorted, long-range travel plans be undertaken, and ways be devised to ensure
unchecked and improper access to public funds.
But the most disturbing factor, and the one that arguably presents the greatest
danger to the integrity of the judiciary, is that Judge James’ misconduct was part of an
enduring pattern or practice that she has shown no intention of changing. Her behavior
and statements before, during, and after the investigation and hearing demonstrate that
Judge James refuses to be bound by any law or requirement that conflicts with her own
desires. This sustained pattern of misconduct and disregard for the law precludes, in my
judgment, sympathetic consideration of Judge James’ behavior. “We simply cannot
overlook a disclosed pattern [of misconduct]. Once such pattern is discovered, the
opportunity of continuity thereof must be concluded with firmness and resolution.” In re
Graham, 366 Mich. 268, 276; 114 NW2d 333 (1962). In this case, removal alone, which
may accomplish nothing more than removing her from the bench for a period of fewer
than five months, will not divest from Judge James all opportunity to continue her pattern
of misconduct and her cavalier approach to her responsibilities as a district judge.
The inadequacy of removal is further demonstrated by Judge James’ practice of
being unrestrained by her oath to tell the truth. During the course of this investigation
10
and hearing, Judge James lied numerous times. For example, Judge James not only
falsely stated that a candidate was qualified to be magistrate, she then continued to lie
when confronted about the first falsehood. Judge James further lied in stating that it was
the funding authority that issued the improper checks, not her. The funding authority,
however, never administered or managed the account from which the checks were drawn.
In fact, Judge James opened the account when the funding authority questioned some of
her check requests. Judge James also falsely submitted in her answer that the decision to
close the court bank accounts was made by the bank and that the decision “forced” her
court administrator to obtain a new federal tax identification number and open new
accounts elsewhere. A letter from the court administrator to the bank (directed by Judge
James) clearly stated that the decision was the “court’s and not the bank’s.” Further,
Judge James instructed her administrator to obtain a new tax identification number before
the accounts at the bank were closed.
Judge James also falsely stated that she derived no benefit from the issuance of the
various checks to the civic and charitable organizations, when the advertisements
prominently featured her name and photograph and had the appearance of campaign
literature. Similarly, Judge James falsely submitted in her answer that she was only an
honorary member of the Booker & Flora Dozier Memorial Scholarship organization (one
of the organizations to which she improperly directed public funds), when she actually
served as a committee member and voted on which applications should receive
scholarships. Judge James also falsely stated that she was not an active member of the
Delta Sigma Theta sorority (another organization that received public funds from Judge
James), when in fact she is a lifetime member. Finally, Judge James lied about
11
reimbursements she had received for travel expenses and pocketed public monies in
excess of the actual costs. Thus, Judge James not only received an improper monetary
benefit, but she lied about it when this was brought to her attention.
The provision of false testimony or evidence in a JTC proceeding has generally
led to removal from office. In re Servaas, 484 Mich. 634, 716 n 11; 774 NW2d 46 (2009)
(YOUNG, J., dissenting). This Court also explained the importance of truthfulness in In re
Ferrara, 458 Mich. 350, 372; 582 NW2d 817 (1998):
Judges, occupying the watchtower of our system of justice, should
preserve, if not uplift, the standard of truth, not trample it underfoot or hide
in its shady recesses. This is precisely why judges should be exemplars of
respectful, forthright, and appropriate conduct.
Lying under oath is the antithesis of judicial integrity. When faced with such
misconduct, this Court must take pains to adequately address the harm inflicted and
protected against future harm if necessary. See In re Ryman, 394 Mich. 637; 232 NW2d
178 (1975); In re Loyd, 424 Mich. 514; 384 NW2d 9 (1986); Ferrara, 458 Mich. 350; In
re Noecker, 472 Mich. 1; 691 NW2d 440 (2005); In re Nettles–Nickerson, 481 Mich. 321;
750 NW2d 560 (2008).
I agree with the Judicial Tenure Commission and the majority opinion that Judge
James’ misconduct violated Const 1963, art 6, § 30, MCR 9.104(A)(1) (conduct
prejudicial to the proper administration of justice); MCR 9.104(A)(2) (conduct that
exposes the legal profession or the courts to obloquy, contempt, censure, or reproach);
MCR 9.205(A) (a judge is personally responsible for the judge’s own behavior and for
the proper conduct and administration of the court in which the judge presides); MCR
9.205(B)(1) (misconduct in office); Code of Judicial Conduct, Canons 1 (uphold the
12
integrity and independence of the judiciary), 2(A) (avoid all impropriety and appearance
of impropriety), 2(B) (respect and observe the law), 2(C) (not allow family, social, or
other relationships to influence judicial conduct or judgment), 3(A)(1) (be faithful to the
law and maintain professional competence in it and be unswayed by partisan interests,
public clamor, or fear of criticism), 3(A)(2) (enforce reasonable rules of attire and
conduct in the courtroom.), 3(B)(1) (diligently discharge administrative responsibilities,
maintain professional competence in judicial administration, and facilitate the
performance of the administrative responsibilities of other judges and court officials.),
and 6(B) (expense reimbursement limited to the actual cost of travel, food, and lodging
reasonably incurred by the judge); MCL 600.4803 (court must transmit to the treasurer or
chief financial officer of the funding unit of the court late penalties received within 30
days after receipt of the penalty); MCL 600.8379 (proper allocation of fines and costs);
MCL 600.8501 (appointment of magistrates); MCL 600.8507 (qualifications of
magistrates); MCL 750.174 (embezzlement by fiduciary); MCL 750.175 (embezzlement
by public officer); MCL 750.218 (use of false pretenses with intent to defraud); MCL
750.249 (uttering and publishing); and Administrative Order 1996-11 (antinepotism
policy).
Underlying this misconduct, however, is a common theme: Judge James’ refusal
to conform her actions to the requirements of the law, a law to which she was bound, as
are all other citizens. Judge James’ actions, in short, that she believed she was above the
law and not within the law. Her actions demonstrate a pattern of ignoring laws or
requirements that conflicted with her personal desires and judgment. Even more
troubling, her actions during the investigation and hearing below demonstrate a complete
13
lack of remorse or acknowledgement of wrongdoing. Nowhere in the record does Judge
James concede that her actions and decisions were inappropriate and unlawful; instead,
she repeatedly attempted to justify her misconduct, arguing that no one had previously
complained of the improprieties, that she was not aware of the legal requirements,6 that
others were to blame for her actions, that she was not responsible for the actions of her
court staff, and that any ancillary benefit to charitable or civic organizations justified her
actions.
Taken together, these justifications reveal a refusal to conform her actions to the
requirements of the law, as if statutory requirements and judicial canons are mere
suggestions that may be regarded or disregarded at her will. It is this refusal to be bound
by the laws of this state that, in my opinion, poses the greatest harm to the integrity of the
judiciary and must therefore be effectively addressed.
Although the majority’s ordering removal from office addresses the immediate
harm caused by Judge James, it is an inadequate response and fails to address the
likelihood of continuing harm. As a result of the majority’s decision, Judge James will
be removed from office from today’s date until the expiration of her present term at the
end of 2012. She has her name on the August primary ballot, however. If she is
successful in the primary, her name will be placed on the ballot for the general election in
November. And should she prevail in those elections, she will be allowed to resume her
judgeship on January 1, 2013.
6
Aside from the fact that Judge James was, in fact, informed of both the law and her
noncompliance, her assertion that a judge has no duty to know the law governing the
judge’s day-to-day responsibilities and actions defies logic.
14
In sum, following today’s decision: (1) Judge James will appear and be designated
as a “judge” on the August 7 primary ballot, (2) if Judge James is among the top two
finishers in that primary, she will stand for reelection on November 6, although no longer
designated as the incumbent “judge,” (3) Judge James will be allowed to campaign
continuously for judicial office between the time of today’s decision and the November
election, referring to herself if she chooses as a “past chief judge” or as “former judge,”
and (4) if Judge James is reelected in November, she will be allowed to retake office and
serve the next six-year term of the court beginning on January 1 of next year. And
whether by that time Judge James has or has not made full restitution to the city of
Inkster or to individual victims of crime within Inkster, she may resume her “public
service” after a “removal” from judicial office of less than five months. Such a sanction
is inadequate, in my judgment, and does not satisfy what I view as this Court’s obligation
under our superintending authority over the judiciary to preserve the integrity of
Michigan’s courts.
Given Judge James’ lack of remorse and continuing refusal to acknowledge that
she too is bound by the laws of this state, there is no reason to believe that Judge James
will not continue to place her own will above the will of the people. Again, it is of no
moment for what constitutes a proportionate sanction against Judge James that she may
again be elected to judicial office this year. The harmful effect of her misconduct on the
judiciary extends beyond the geographical limits of her judicial district, and this Court
must ensure that our sanctions for judicial misconduct are viewed as adequate in Alpena
and Muskegon and Battle Creek, as well as in Inkster. And a victim of crime within
Inkster who was due restitution from the fund depleted by Judge James is entitled to an
15
honest court in Inkster whether her or she has come into that community from Dearborn
or Wyandotte or Trenton. Const 1963, art 6, § 1 proclaims that there is but “one court of
justice” in this state, and the actions of Judge James have implications for the reputation
and integrity of the judiciary throughout our state.
This Court has a duty to redress the harms done by Judge James’ harm, and that
duty is not vitiated if Judge James is reelected. Nor is that duty limited to past harm;
rather, it also extends to guarding against future harm. Imposing a six-year conditional
suspension, which would be in effect throughout the next judicial term, is the only way
this Court can adequately protect judicial integrity and redress the substantial harm
caused by Judge James’s refusal to be bound by the same laws she is charged with
applying.
IV. CONCLUSION
Although I concur with the majority that Judge James’s misconduct warrants
removal and the payment of restitution for the diversion of public funds into her
“personal piggybank” and as part of her “publicly-funded private foundation,” I do not
think that this sanction sufficiently addresses the harm done to the integrity of the
judiciary. In light of this Court’s responsibility to ensure the integrity of our judicial
system, both in appearance and in fact, and in light of the serious misconduct by Judge
James that directly impugns the integrity of our “one court of justice” and because of her
serious abuse of the public trust, financial and otherwise, I would impose a six-year
conditional suspension in addition to the sanctions imposed by the majority.
Stephen J. Markman
Robert P. Young, Jr.
16