in Re Hon Wade H McCree ( 2012 )

Order Michigan Supreme Court
Lansing, Michigan
October 24, 2012 Robert P. Young, Jr.,
Chief Justice
145895 Michael F. Cavanagh
Marilyn Kelly
Stephen J. Markman
Diane M. Hathaway
In re: Mary Beth Kelly
Brian K. Zahra,
Justices
HON. WADE H. McCREE SC: 145895
RFI Nos. 2012-19839
2012-19863
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The Judicial Tenure Commission has issued a Decision and Recommendation, to
which the respondent, Honorable Wade H. McCree, 3rd Circuit Court Judge, consents. It
is accompanied by a settlement agreement, in which the respondent waived his rights,
stipulated to findings of fact and conclusions of law, and consented to a sanction of
public censure.
In resolving this matter, we are mindful of the standards set forth in In re Brown,
461 Mich 1293 (2000):
Everything else being equal:
(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;
(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
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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.
In the present case, those standards are being applied in the context of the
following stipulated findings of fact of the Judicial Tenure Commission, which,
following our de novo review, we adopt as our own:
1. Respondent is, and at all material times was, a judge of the 3rd
Circuit Court in Detroit, Michigan.
2. As a judge, he is subject to all the duties and responsibilities
imposed on judges by the Michigan Supreme Court, and he is subject to the
standards for discipline set forth in MCR 9.104 and MCR 9.205.
3. On Sunday, June 6, 2010, Respondent used his cell phone to make a
digital image of himself after completing a half-marathon and captioned the
photograph “2010 Dexter-Ann Arbor race. Fit in my 50’s.”
4. A copy of the digital image is attached to the last page of the
Settlement Agreement.
5. Respondent showed the digital image to a number of people,
including his family, police officers, and deputies who worked in or passed
through his courtroom.
6. Corporal LaDawnn Malone, a 24-year veteran of the Wayne County
Sheriff’s Department, serves as a “floater,” filling in where necessary at the
Wayne County Circuit Court.
7. Corporal Malone received the digital image on her cell phone.
8. Respondent believes he sent the digital image to Corporal Malone
either at her request or on his own after Corporal Malone and Respondent
discussed the image, approximately a year after it was made, although he
has no specific recollection of doing so.
9. If called as a witness, Corporal Malone would testify that she
retained the digital image as inspiration to motivate her to improve her
workouts and eating habits.
10. Corporal Malone’s husband provided a copy of the digital image to
Charlie LeDuff, a reporter for the Fox 2 television station.
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11. On April 23, 2012, Mr. LeDuff interviewed Respondent in
Respondent’s chambers.
12. During the interview, Respondent conducted himself in a flippant
manner and did not give the interview the seriousness he should have. As a
result, he brought shame and obloquy to the judiciary. For example, when
discussing the digital image of him he said, “There is no shame in my
game.”
13. The interview, and the digital image, spread rapidly around the
internet and became the subject of jokes and ridicule.
14. The same week, Respondent issued a statement which
acknowledged, “Clearly, I made an extremely serious error in judgment. I
am embarrassed and totally sorry.”
We also adopt the Commission’s conclusion that these facts demonstrate, by a
preponderance of the evidence, that respondent breached the standards of judicial conduct
in the following ways:
(a) Misconduct in office, as defined by the Michigan Constitution of
1963, as amended, Article 6, Section 30, and MCR 9.205;
(b) Failure to establish, maintain, enforce and personally observe high
standards of conduct so that the integrity and independence of the judiciary
may be preserved, contrary to the Code of Judicial Conduct, Canon 1;
(c) Irresponsible or improper conduct which erodes public confidence in
the judiciary, in violation of the Code of Judicial Conduct, Canon 2A;
(d) Conduct involving impropriety and the appearance of impropriety, in
violation of the Code of Judicial Conduct, Canon 2A;
(e) A failure to willingly and freely accept restrictions on conduct,
present due to constant public scrutiny, that might be viewed as
burdensome on the ordinary citizen, Canon 2A;
(f) Conduct which exposes the legal profession or the courts to obloquy,
contempt, censure, or reproach, in violation of MCR 9.104(2); and
(g) A lack of personal responsibility for his own behavior, contrary to
MCR 9.205(A).
After reviewing the recommendation of the Judicial Tenure Commission, the
settlement agreement, the standards set forth in Brown, and the above findings of fact and
conclusions of law, we accept the recommendation of the Commission and ORDER that
Honorable Wade H. McCree be publicly censured. This order stands as our public
censure.
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HATHAWAY, J., not participating because she has a professional relationship with a
member of a law firm involved in this matter.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
October 24, 2012 _________________________________________
s1017 Clerk