in Re Hon Lisa O Gorcyca

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 GORCYCA
Docket No. 152831. Argued March 8, 2017 (Calendar No. 1). Decided July 28, 2017.
The Judicial Tenure Commission (JTC) filed a formal complaint against Sixth Circuit
Judge Lisa O. Gorcyca alleging two counts of judicial misconduct arising from a hearing at
which she found three children in contempt of court. The contempt hearing arose in the context
of a protracted and acrimonious divorce and custody case. The two younger children, 10-year-
old RT and 9-year-old NT, were ordered to participate in parenting time in respondent’s jury
room with their father on June 24, 2015. LT, who was 13 years old, was not scheduled for
parenting time with his father on that day, but he came to the court with his siblings. After the
children refused to communicate with their father, respondent held a show cause hearing to
determine why all three children should not be held in contempt. Respondent first appointed
separate attorneys for all three children and allowed them 30 minutes to consult with the
children. At the hearing, respondent first addressed LT—the child not under any order for
parenting time that day—who expressed confusion about what he had done wrong but indicated
that he would not talk to his father. Among other things, respondent told LT that he was defiant,
contemptuous, and “mentally messed up.” She held him in direct contempt of court and ordered
LT to be confined at Oakland County Children’s Village. Respondent then addressed RT and
NT. Both children were initially apologetic and indicated that they would try to comply with the
court’s order but later stated that they would prefer to go with LT to Children’s Village.
Respondent held RT and NT in direct contempt. All three children were handcuffed and
removed from the courtroom. Respondent indicated that the children’s father could seek review
of their placement if he determined that the children had developed a healthy relationship with
him. After an investigation into respondent’s conduct, the JTC issued its formal complaint
alleging that respondent had engaged in judicial misconduct when she held the three children in
contempt and that respondent had not been truthful in her answer to the JTC’s 28-day letter. The
Honorable Daniel Ryan, the master appointed to the case, concluded that respondent’s actions in
the courtroom during the contempt hearing constituted judicial misconduct and that she
misrepresented to the JTC the meaning behind a gesture she made during the contempt hearing
while she was addressing LT. Specifically, the master found that respondent committed
misconduct by (1) finding LT in contempt of a nonexistent parenting-time order, (2) giving the
children’s father the keys to the jailhouse thereby depriving the children of the opportunity to
purge their contempt, (3) making a gesture indicating that LT was crazy and making disparaging
remarks about the children, and (4) misrepresenting to the JTC that the gesture was intended to
communicate LT’s moving forward with therapy. The JTC adopted the master’s findings with
one exception—the JTC disagreed with the master that respondent misrepresented the meaning
of the gesture and concluded that her answer was merely misleading. The JTC recommended
that the appropriate discipline for respondent’s misconduct was a 30-day suspension without pay
and costs of $12,553.73. Respondent petitioned the Supreme Court, requesting that the Court
reject or modify the JTC’s recommendation.
In an opinion by Justice ZAHRA, joined by Chief Justice MARKMAN and Justices
MCCORMACK, VIVIANO, LARSEN, and WILDER, the Supreme Court held:
The JTC correctly found that respondent committed judicial misconduct during the
contempt hearing when she directed demeaning and disparaging comments to the children, but it
erred by concluding that respondent committed misconduct when she exercised her contempt
power to hold the oldest child in contempt of an order that did not apply to him and delegated the
authority to decide when the three children had purged their contempt. Those decisions
constituted mere legal errors made in good faith and with due diligence, and the errors could
have been remedied on appeal. Public censure was proportionate to respondent’s misconduct.
1. The JTC properly concluded that respondent committed misconduct when she failed
to exhibit appropriate judicial temperament during the contempt hearing. The facts showed that
respondent’s conduct during the hearing violated four canons of the Code of Judicial Conduct.
Respondent violated Canon 1 (preserving the integrity and independence of the judiciary by
observing high standards of conduct), Canon 2(A) (avoiding irresponsible or improper conduct
so as not to erode public confidence in the judiciary), Canon 2(B) (treating every person fairly,
courteously, and respectfully), and Canon 3(A)(3) (being patient, dignified, and courteous to
litigants in his or her official capacity). Respondent’s conduct violated these canons when she
mocked and threatened the children, called them “mentally messed up” and “brainwashed,”
expressed general hostility toward the children and their mother, and exaggerated or lied about
the conditions at Children’s Village.
2. The JTC incorrectly concluded that respondent committed judicial misconduct with
respect to the contempt orders. To the extent respondent held LT in contempt without sufficient
evidence that he had disobeyed any lawful order, decree, or process of the court as stated in
MCL 600.1701(g), her decision was legal error. Respondent also made a legal error when she
improperly delegated to the father the authority to determine when the children had purged
themselves of contempt. But those errors were made in good faith and with due diligence and,
under MCR 9.203(B), did not constitute judicial misconduct. There was no evidence that
respondent deliberately failed to observe the law governing contempt proceedings. In addition, it
is significant that not one of the many attorneys and other professionals present in the courtroom
during the contempt hearing objected to respondent’s actions during the hearing. Their failure to
alert respondent to actions that may have been contrary to the law supported the conclusion that
respondent acted in good faith, that is, that she did not willfully fail to observe the law. Further,
respondent acted with due diligence even though she made the identified legal errors.
Respondent treated the children’s behavior as constituting direct contempt for which no hearing
was required, but respondent not only held a hearing, she appointed separate counsel for each
child and allowed them 30 minutes to confer with the children before beginning the hearing.
Respondent’s preparation for the contempt hearing showed that she exercised due diligence,
even though her decisions ultimately constituted legal error.
3. Respondent’s judicial misconduct amounted to her sarcastic and disparaging
comments to the children during the contempt hearing. This misconduct warranted a public
censure; it did not warrant a 30-day suspension without pay. The Supreme 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. In considering the appropriate sanction, the JTC correctly analyzed most
of the factors set forth in In re Brown, 461 Mich 1291 (2000), but application of two of the
factors required clarification. Because respondent’s misconduct was an isolated occurrence in an
otherwise exemplary career, Factor 1 did not weigh in favor of a more severe sanction. The
JTC’s concern that respondent might repeat the misconduct was not a reason to impose a more
severe sanction. Should the misconduct occur again, the JTC can file a new complaint and,
when recommending a sanction for that misconduct, may consider the incidents as a pattern of
misconduct. Moreover, consideration of Factor 7 did not call for a more severe sanction. Even
though respondent’s misconduct involved children, it did not involve the unequal application of
justice on the basis of a class of citizenship, which is the harm addressed by Factor 7. Simply
put, respondent’s conduct—though inappropriate—did not demonstrate an animus toward
children, and there was no evidence that respondent treated children differently than she did
other persons who had previously defied court orders. Respondent’s case was most analogous to
In re Hocking, 451 Mich 1 (1996), in which the respondent instigated a confrontation with an
attorney, personally attacked the attorney, and made caustic comments in an abusive tone to the
attorney. Even though the respondent in Hocking demonstrated a total lack of self-control and an
antagonistic mindset, he was found not to have abused the contempt power; rather, his behavior
was found to have prejudiced the administration of justice and he received a three-day
suspension. Several mitigating factors, in addition to the conclusion that Factors 1 and 7 did not
weigh in favor of a more severe sanction, also compelled a lesser sanction in this case. First,
respondent’s display of inappropriate judicial temperament occurred during extremely
contentious and protracted proceedings and represented respondent’s single recorded lapse of
good temperament. Second, respondent’s frustration was understandable given the children’s
deliberately defiant behavior over a five-year period. And last, there was no indication that
respondent sought to personally benefit from her misconduct.
4. The JTC properly found that respondent did not intentionally misrepresent or make a
false statement about the gesture she made when she circled her temple with her finger during
her discussion with LT at the contempt hearing, but the JTC incorrectly determined that
respondent’s answer to the 28-day letter’s allegation of misconduct concerning the gesture was
misleading enough to justify the imposition of costs totaling $12,553.73. The JTC found it
significant that respondent’s answer to the 28-day letter denied making the gesture to imply that
LT was crazy but that respondent testified before the master that she did not recall making the
gesture and could only guess at what she meant by it. The JTC concluded that respondent’s lack
of memory precluded it from speculating about respondent’s motives and intentions and from
determining that the statement was an actionable falsehood. However, although the JTC found
that a preponderance of the evidence did not prove that respondent’s statement was an intentional
misrepresentation or a misleading statement, it concluded that respondent’s answer to the 28-day
letter was misleading enough to justify the imposition of costs totaling $12,553.73. Under MCR
9.205(B), the Court is authorized to impose costs, fees, and expenses incurred by the JTC if a
respondent made a misrepresentation or a misleading statement to the JTC, its investigators, the
master, or the Supreme Court. A misrepresentation or misleading statement generally involves
an intent to deceive, and there was no evidence that respondent had a wrongful intent when she
speculated about what she meant by the gesture.
5. Contrary to the conclusion reached in the partial dissent, respondent did act in good
faith and with due diligence when she conducted the contempt hearing. MCL 722.23(j) requires
family court judges to evaluate the willingness and ability of divorced parents to facilitate and
encourage a close relationship between the children and the other parent, and respondent acted in
furtherance of that ideal, making progressive attempts over the course of five years to get the
children to adhere to court directives and engage with their father. The record shows that
respondent exercised poor judgment and lacked proper judicial temperament on the day in
question, but respondent had an otherwise exemplary record. Given these facts, public censure
was a sufficient disciplinary outcome.
Public censure imposed; no costs.
Justice VIVIANO, joined by Justice MCCORMACK, concurring, agreed with the sanction of
public censure imposed on respondent and agreed that the circumstances did not justify imposing
costs, fees, and expenses on respondent but wrote separately to assert that in JTC cases the Court
should address all the legal bases for the findings of misconduct recommended by the JTC. The
majority sustained the JTC’s findings as to Canon 1, the first sentence of Canon 2(A), Canon
2(B), and Canon 3(A)(3); Justice VIVIANO agreed with the majority’s reasoning and conclusions
with respect to those findings. Justice VIVIANO interpreted the majority’s silence regarding the
other findings of the JTC as a rejection of those other findings. With the exception of the JTC’s
finding under MCR 9.104(2), Justice VIVIANO agreed that no additional findings should have
been sustained. However, the Court should, as a matter of course, examine all the JTC findings,
describe its reasoning for resolving each of the JTC’s findings, or explain its decision not to
address certain JTC findings in a specific case.
Justice BERNSTEIN, concurring in part and dissenting in part, would have adopted the
findings and recommendation of the JTC to publicly censure respondent and suspend her from
office for 30 days without pay, but agreed with the majority that the imposition of costs was not
appropriate. Respondent’s language and demeanor during the contempt hearing constituted
judicial misconduct, and respondent’s exercise of the contempt power also constituted judicial
misconduct. Altogether, this misconduct warranted a sanction more severe than public censure.
Respondent held LT in contempt of court for violating a parenting-time order that did not apply
to him. Respondent also committed judicial misconduct when she delegated to the father the
discretion to determine when the children had purged themselves of contempt. Under these
circumstances, the majority wrongly concluded that respondent’s exercise of her contempt power
was legal error executed in good faith and with due diligence. The majority asserted that this
legal error could have been remedied on appeal and was made with the parties’ knowledge and
without objection. However, that none of the attorneys or other professionals present in the
courtroom objected to the proceedings did not insulate respondent’s error from review for
misconduct. Only the attorneys representing the children had any duty to object, and they were
unprepared to do so because of the limited time they had to confer with their clients and the
breakneck speed at which the hearing was conducted. Respondent admitted that she had been
contemplating holding the children in contempt for nearly a year before she did so. Thus,
respondent had endless opportunities to research the law of contempt and fulfill her duties under
MCR 9.205(A), the rule that places personal responsibility on a judge for his or her own
behavior and the conduct and administration of the judge’s courtroom. Because respondent
failed to fully consider her course of action and because she entered patently inappropriate
contempt orders, respondent’s legal errors were not made in good faith or with due diligence.
Finally, although the majority correctly concluded that Brown Factors 1 and 7 did not weigh in
favor of a more severe sanction, the bulk of the factors favored the more severe sanction
recommended by the JTC. Respondent’s conduct occurred on the bench, was prejudicial to both
the actual administration of justice and the appearance of propriety, and impeded respondent’s
ability to determine the children’s best interests and the best resolution of the underlying custody
case. Respondent’s inability to recognize the problematic nature of her conduct and the fact that
she attempted to shift responsibility for her conduct to the children and their attorneys further
indicated the need for a more severe sanction.
©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 28, 2017
STATE OF MICHIGAN
SUPREME COURT
In re Honorable LISA O. GORCYCA,
Judge, 6th Circuit Court.
No. 152831
BEFORE THE ENTIRE BENCH
ZAHRA, J.
This case comes to the Court after the Judicial Tenure Commission (the
Commission) recommended that respondent, Sixth Circuit Court Judge Lisa O. Gorcyca,
be publicly censured and suspended from office without pay for a period of 30 days. The
Commission also imposed costs, fees, and expenses in the amount of $12,553.73 against
respondent under MCR 9.205(B) for providing a misleading response to the Commission
during its investigation. Respondent has filed a petition requesting that this Court reject
or modify the Commission’s recommendation.
After review of the entire record and careful consideration of the parties’
arguments, we agree in part with the Commission’s conclusion that respondent
committed judicial misconduct, but we are not persuaded that the recommended sanction
is appropriate. Instead, we hold that public censure is proportionate to the judicial
misconduct established by the record. We also reject the Commission’s recommendation
to impose costs, fees, and expenses against respondent under MCR 9.205(B).
I. FACTS AND PROCEEDINGS
A. UNDERLYING DIVORCE AND CUSTODY CASE
The alleged misconduct in this judicial-discipline case arose in the context of a
protracted and highly contentious divorce and custody case that was filed in 2009. Three
children were born during the marriage: the oldest son (LT) was born in July 2001, the
middle son (RT) was born in August 2004, and the only daughter (NT) was born in
December 2005.
The register of actions related to the underlying divorce and custody proceedings
reflects that more than 100 pleadings were filed and that more than 40 hearings were
held. Well before the judgment of divorce was entered on August 8, 2011, the children’s
refusal to participate in parenting time with their father took center stage. The record
reflects that the first notable instance arose shortly after an August 25, 2010 hearing at
which the father was granted unsupervised parenting time. At that time, the legal
guardian ad litem (LGAL), attorney William Lansat, 1 scheduled parenting time for the
1
In highly contentious cases, trial courts often rely on the observations and
recommendations of an LGAL appointed to advocate the interests of the children.
2
father and his children on each day from August 25 through August 30. Apparently, at
some point on August 27 while the children were with their father, the children called
their mother and alleged that their father had made threats against them. When the
mother appeared at the park where the father and the children were located, the father
allegedly began “pushing her around.” With their mother’s encouragement, the children
called 911, and the police responded. The responding police officers saw no visible
injuries to the mother and concluded that there was no probable cause to arrest the father.
The police informed the LGAL of the incident, and the LGAL directed the parties to
terminate the visitation for the day. The matter was referred to the Department of Human
Services (DHS). 2 During an interview with DHS, the two older children alleged that they
were threatened. The youngest child declined to talk about the incident. The matter was
apparently closed. 3 The rest of the August visitations were largely unsuccessful.
Thereafter, respondent ordered that the father’s future parenting time be supervised.
The children became exceedingly resistant to respondent’s efforts to facilitate the
children’s relationship with their father. On September 15, 2010, the court ordered
psychological evaluations of the parents and children and therapy for the children. The
court granted the father supervised parenting time and the mother was afforded the choice
of an individual to supervise that parenting time. The visits did not go well; the
2
The Department of Human Services is now known as the Department of Health and
Human Services. See Executive Order No. 2015-4.
3
As discussed in more detail in note 66 of this opinion, RT later complained to the court
that his father had abused him, but respondent found insufficient proof of the allegations
after a full evidentiary hearing held on March 23, 2015.
3
supervisor reported that she was unsuccessful in separating the children from their
mother. The children refused to respond to their father and even avoided eye contact
with him. The oldest child would pull the other children away from their father, and the
children would hide behind their mother. The supervisor believed that the younger
children were following the oldest child’s cues and directions. The children behaved
similarly during visits on November 1, 4, and 6, 2010. 4
The August 8, 2011 judgment of divorce awarded the parties joint legal custody of
the children, while awarding physical custody to the mother and parenting time to the
father. Although the father planned to return to Israel, he expected to be in Michigan
every three to four months for about three weeks each time.
Between 2011 and 2015, there were at least 13 motions to show cause filed by the
father and the LGAL against the mother, all similarly related to the children’s alleged
refusal to comply with the court’s parenting-time orders. During that period, at least 78
orders were entered—30 of which related to the children. Seven different therapists were
involved with the children in the context of the parenting-time situation. During a
therapy session in April 2011, a therapist reported that all three children “huddled” in a
4
On November 4, 2010, the father filed a motion that alleged parental alienation
orchestrated by the mother. Parental alienation is seemingly contrary to MCL 722.23(j),
a factor to be considered in determining the best interests of a child. MCL 722.23(j)
requires evaluation of “[t]he willingness and ability of each of the parties to facilitate and
encourage a close and continuing parent-child relationship between the child and the
other parent or the child and the parents.” It is unclear how this motion was resolved,
except that additional efforts were made to promote a meaningful relationship with the
father.
4
mass, whispering to each other with no other verbal contact. Yet, the LGAL reported that
the mother did not believe that therapy was warranted and that she believed there was
nothing wrong with the children. In November 2011, a family court judge filling in for
respondent warned the parties that the children do “not run the show” and that a change
in custody would be considered if the situation did not improve.
By February 2012, the children’s refusal to engage in parenting time with the
father had become routine anytime the father was supposed to meet with the children. 5
Respondent interceded by ordering that parenting time with the father and the children be
held at the home of the mother’s friend. But again, the children largely ignored their
father and the parenting-time supervisor. In a July 24, 2013 order, respondent informed
the parties that if either of them failed to comply with the court’s orders, they would be
subject to contempt of court and “20 days for the first violation and 40 days for a
subsequent violation.”
On August 20, 2014, the parties stipulated to parenting time in respondent’s jury
room on the following two days—August 21 and 22. The children arrived at court but sat
in chairs in the hallway and refused to participate, linking their arms together and
refusing to look at or speak to anyone. Efforts by sheriff’s deputies, LGAL Lansat, a
friend of the court (FOC) counselor, and an assistant prosecuting attorney were fruitless.
5
For instance, around that time, the father was to pick up the children from school and
then participate in family therapy with a counselor. But shortly after the father arrived at
the school, the LGAL received a call from the school reporting that the children were
“hysterical” and refused to go with their father. The school expressed that it could ill
afford a repeat of this incident, and the children never again left school with their father.
5
Respondent herself then went out in the hallway to try to persuade the children to
participate in parenting time, explaining to them that they and their mother could be held
in contempt of court if they continued to refuse to enter the jury room for parenting time.
Eventually, the children went into the room on both dates, but, according to the LGAL
and the FOC counselor, “[l]ittle progress” was made. 6 According to the LGAL’s report,
it was at that time that respondent came to believe that the children “were in ‘contempt’
of her order and unless they complied, she would have had to appoint Attorneys for
them.”
6
The LGAL’s November 3, 2014 report described the attempts to provide the father with
visitation with his children in August 2014. The LGAL’s report included an analogy to
the notorious cult leader, Charles Manson:
I advised Mother that unless she gets these kids off the bench, there will be
grave consequences—such as placement in the [C]hildren’s [V]illage.
Mother told the kids to listen; but to no avail. Mother believed the kids
were traumatized because, according to Mother, [their therapist] was
threatening them with being detained, if they didn’t shape up.
The children would not answer any adult; they huddled together as if
they were sending messages/vibes to each other in some sort of Manson-
like behavior.
. . . At one point the deputy pulled Mother aside and told her she
runs the risk these kids will go to the Village. This charade took place for
about an hour. It was only after the Judge HERSELF, accompanied by all
these people, went outside her courtroom to the hall and finally was able
[to] bring these kids into the jury room escorted by armed deputies.
The LGAL explained that he was using “this Manson-like phenomenon to describe the
kids as the girls that were associated with Manson indicated how he would be
‘telegraphing’ his ‘vibes’ to them. In fact, [the FOC counselor] indicated to [him] that
she saw the children tapping their feet under the table in the jury room as if they were
sending Morse codes to each other.”
6
The LGAL’s report noted that “every conceivable machination of parenting time”
had been tried over the past four years, but that the children resorted “to the usual ‘shut-
down’ mode[.]” The LGAL then stated that
. . . the Court needs to consider, if there is to be any progress, a draconian
approach. There has been no progress of any meaningful degree regarding
Father’s parenting time/relationship with his children since August of 2010.
In fact, the situation is, quite frankly, worst [sic]. . . .
What message would we be sending to these kids if we allow their
behaviors to go unchecked—essentially condoning th[ese] bizarre, cult like
actions?
The LGAL made specific recommendations regarding future parenting-time visits
with the father, which would be monitored and would involve exchanges at the
courthouse parking lot with a sheriff’s deputy present. The LGAL stated that he knew of
“no other option” because everything had been tried unsuccessfully for four years and
because “[c]ontinuation of the status quo is untenable and is contrary to the children’s
best interest, the statutes and philosophy of the various statutes on custody and parenting
time.”
The time between August 2014 and June 2015 was replete with court hearings,
stipulated orders, and more show-cause motions alleging violations of parenting time.
On February 23, 2015, after moving back to Michigan from Israel, the father filed a
motion to show cause, alleging that the mother continued to disregard the court’s
parenting-time orders and continued to alienate the children from him. By order of
March 4, 2015, respondent implemented the parties’ agreed-upon parenting schedule.
She also ordered that the children were to lose access to electronics, visits with friends,
and television until they began communicating with their father and that there was to be
7
no replacement meal if the children refused to eat dinner with their father. Respondent
indicated that she would be inclined to entertain the father’s motion for a change in
custody if things did not improve over the next 30 days. Thirty days came and passed
without improvement. In fact, during that time the mother voluntarily went to jail and
worked at an animal shelter for two days because she violated the parenting-time
agreement. She also agreed to pay the father’s attorney fees. In exchange, the father
agreed not to pursue the motion to change custody. The parties agreed to have parenting
time in the jury room during spring break.
B. PARENTING-TIME ORDER
On June 23, 2015, the parties appeared before respondent for a review hearing.
The father’s attorney and the parenting-time monitor, Art Gallagher, reported to
respondent that while the children were appearing for the visits, they participated
minimally. Respondent ordered that the father would have supervised parenting time
with the two younger children the next day in respondent’s jury room. The order
provided that the father’s visitation with the oldest child would occur on July 14, 2015,
after the father returned from a business trip.
The next day, the two younger children appeared in respondent’s jury room for
individual parenting time with their father. The oldest child came along with his mother
and siblings but was not scheduled for parenting time. Respondent’s judicial assistant
informed respondent that things were not going well, so respondent and FOC family
counselor, Tracey Stieb, entered the jury room where they saw RT sitting in a chair, with
his legs over a second chair and his head tucked between his legs. Respondent
8
questioned him and reminded him of the court’s admonition in the hallway in August
2014 regarding the consequences of his refusal to comply, including “potentially being
sent to Children’s Village.” Acting on the child’s statement that he listened to his
mother, respondent, with the consent of the mother’s attorney, drafted a script for the
mother to read to the children in the jury room. Later, respondent was informed that,
despite the mother’s speech, the children had persisted in their refusal to communicate
with their father and to participate in parenting time with him. At that point, respondent
indicated that she was appointing attorneys for all three children and that, if necessary,
she would be proceeding with an immediate contempt hearing regarding the children.
Respondent called for an extra sheriff’s deputy, appointed attorneys for each child, and
allowed thirty minutes for the attorneys to confer with the children. The three attorneys
were provided with a brief “on the fly” verbal recitation of the situation from LGAL
Lansat and did not ask to review any pleadings or court orders.
C. CONTEMPT HEARING
Respondent then held a contempt hearing that ultimately addressed the behavior of
all three children, despite the fact that LT was not scheduled to have parenting time with
his father that day. LT expressed confusion as to what he had done wrong, but
nonetheless apologized to respondent for not understanding the rules. He admitted that
he did not want to talk to his father, telling respondent that he believed that his father was
violent and that he had observed his father hit his mother. Respondent’s direct response
to that testimony was: “All right. Well, the court finds you in direct contempt. I ordered
you to have a healthy relationship with your father.” LT stated, “I didn’t do anything
9
wrong . . . .” LT said that his father was the one who had done something wrong, and
that he “thought there was like rules when -- rules for like not, you know, not hitting
someone[.]” He asked respondent why he was the one going away. Respondent
interjected, and despite having already held LT in contempt, she expressed her
disapproval of LT with the following notable statements:
• “You are a defiant, contemptuous young man and I’m ordering you to
spend the rest of the Summer -- and we’ll review it -- we’ll review it when
school starts, and you may be going to school there. So you’re going to be
-- I’m ordering you to Children’s Village.”
• “[Y]ou’re supposed to have a high IQ, which I’m doubting right now
because of the way you act, you’re very defiant, you have no manners . . . .”
• Respondent told LT that he needed “to do a research program on Charlie
Manson and the cult that he has. Your behavior in the hall with me months
ago, your behavior in this courtroom, your behavior back there, is unlike
any I’ve ever seen in any 46,000 cases. You, young man, are the worst one.
So you have bought yourself living in Children’s Village, going to the
bathroom in public, and maybe Summer school, I don’t know . . . .”
• “You had very simple choices and you’re clearly -- clearly very messed
up.”
• “So, I’m sentencing you to Children’s Village . . . pending you following
the court’s direct order. When you can follow the court’s direct order and
have a normal, healthy relationship with your father I would review this.”
• “[Y]ou are so mentally messed up right now and it’s not because of your
father.”
• Addressing the father, respondent said, “Dad, if you ever think that he has
changed and therapy has helped him and he’s no longer like Charlie
Manson’s cult, then you let us know and we can do it.” As respondent said
that, she was making a circular gesture with her finger near her temple.
At the end of that portion of the hearing, LT was handcuffed and led out of the
courtroom by sheriff’s deputies. Respondent set a review date of September 8, 2015.
10
Respondent then turned her attention to the two younger children, who had been
subject to the parenting-time order for that day. Reading from a written note that he had
prepared with his counsel, RT apologized to respondent and to his father.
[RT]: Judge, I’m sorry for my behavior, and dad, I’m sorry for my
behavior[.]
[Counsel]: Look in his eyes I told you, remember to look --
[RT]: Dad, the Judge wanted me to talk to you so here is something
about myself. I enjoy soccer and I hope to be on the soccer team --
(undecipherable).
[Counsel]: And what do you hope -- do you mind, your Honor?
What do you -- what is the thing that you’re --
[Respondent]: Oh, it’s impressive.
[Counsel]: -- we talked about, what do you -- you’re going to tell the
Judge that you’re going to be doing from this point forward when you get
together with your dad, what was the “C” word we talked about?
[RT]: Communicate.
[Counsel]: Communicate. That means dialogue, back and forth.
Remember I told you not to be just a stick in the mud, your dad asks you a
question, you respond. That’s how one develops a relationship, starting
through communication. Are you in agreement with starting to
communicate with your father so that you can build a relationship?
[RT]: Yes.
[Counsel]: Look at your father’s eyes and say that.
[RT]: Yes.
[Counsel]: Look at the Judge’s eyes and say that.
[RT]: Yes.
Respondent then addressed the youngest child, 9-year-old NT:
11
[Respondent]: . . . [N]o, [NT], don’t read what your brother wrote.
You’re your own person. Do you know what? I know you’re kind of
religious. God gave you a brain. He expects you to use it. You have a
brain, you are not your brother. You are not your big, defiant brother
who’s living in jail. Do you want to live in jail? Just tell me this right now.
[Counsel]: Do you want to go to jail?
[Respondent]: Mom, you must step away.
[Deputy One]: Go ahead and step over here, Ma’am.
[Deputy Two]: Step away.
[Deputy One]: Step towards the back. Thank you.
[Deputy Two]: Step up. There you go.
[Counsel]: Okay, I’m urging you to apologize and say you will go
and try to work with your father at visits. Can you do that?
[NT]: I’m sorry, I’ll try to work with my father at visits.
[Respondent]: Well, you’re going to stay here all day and it’s going
to be up to your dad. I’m going to see how you two act. Maybe the three
of you should go to lunch in the cafeteria? If you have any hesitation at all
you’re living in Children’s Village. You’re living in Children’s Village.
You know what that would do to your mother, going home, riding
down the elevator without you? Can you guys think about someone besides
yourself? You should be thinking about your father and what your father
has gone through unnecessarily because of I don’t why? . . . [I]t’s
despicable to me what your father has gone through when he loves you and
he loves you, and he wants to be in your life. He wants you to be in his life.
I’m so upset with you, I’m so upset with you, I’m even more upset with
your brother, and I won’t say what I think about your mother. I think your
mom did something nice in the jury room for once. And I like your dad.
And I -- you have me as your Judge for five and a half years.
How old will you be, [NT]? Let’s see, you’re going to be a teenager.
You want to have your -- you want to have your birthdays in Children’s
Village? Do you like going to the bathroom in front of people?
[Counsel]: She said no, thank you.
12
[Respondent]: Is your bed soft and comfortable at home?
* * *
[Respondent]: I’ll tell you this, you two don’t have a nice lunch with
your dad and make this up to your dad you’re going to come back here at
1:30 and I’m going to have the deputies take you to Children’s Village.
Respondent explained to the children that she had “wanted to do this to you all
many times,” but that their father had said “no.” Respondent told the children:
Your mom didn’t want me to either, but the ball is in your dad’s
court. Your dad is in charge. Unless you want to live in Children’s
Village. It’s up to you. I have put other children in Children’s Village.
You guys can all hang out together.
After some discussion about where the children would have lunch with their
father, respondent cautioned: “Everything’s recorded [in the courthouse] and I’m going
to watch. You walk -- the minute you pull into this courtroom -- courthouse, you’re
video’d. Outside, they can get you walking in, they can get you everywhere except in the
bathroom.”
[Counsel, to RT]: What do you have to say?
[RT]: I’ll go with my brother then.
[Respondent]: Pardon?
[RT]: I’ll go with my brother.
[Respondent]: What does that mean?
[RT]: Children’s Village.
[Respondent]: So you don’t want to have parenting time with your
father?
[Mother’s Attorney]: Do they realize that they would not be seeing
their siblings?
13
[Respondent]: You’re not even going to be with your brother. That’s
cool. You won’t be in the same cell. I’ll put in there “Stay away from your
brother.”
All right, so you’re admitting you won’t have parenting time with
your dad?
[RT]: (No audible response).
[Respondent]: Okay. Is that a yes?
[RT]: Mm-hmm.
* * *
[Counsel, to NT]: You want to go to lunch with your dad?
[NT]: No.
* * *
[Counsel]: Now she’s refusing because her brother is.
[NT]: I’m not refusing because my brother is.
* * *
I’m refusing because I want to refuse.
[Respondent]: That’s ridiculous, I have to say.
* * *
I’ve never seen anything like this. One day you can watch this video
and realize that you two have been brainwashed. Your dad is a good
man. . . . And wipe that smirk off your face, [RT].
[RT]: It’s not a smirk.
[Respondent]: I don’t know what that is. I’ve never seen anything
like it. You’re a defiant, contemptuous young man and the court finds both
of you in direct contempt. You both are going to live in Children’s Village.
Your mother is not allowed to visit, no one on your mom’s side is allowed
to visit. Only your father and therapist and Mr. Lansat. When you are
ready to have lunch with your dad, to have dinner with your dad, to be
normal human beings, I will review this when your dad tells me you are
14
ready. Otherwise, you are living in Children’s Village [un]til you graduate
from high school. That’s the order of the court. Good bye.
Sheriff’s deputies then placed both children in handcuffs and took them away.
D. AFTERMATH
More than two weeks later, on July 10, 2015, following numerous media reports
about the case, respondent held an emergency hearing, after which she vacated the June
24 orders, sent the children to summer camp by stipulation of the parties, and ordered
intensive reunification therapy for the family. The emergency hearing that day was held
at the request of the LGAL, not the father, who was in Israel at the time. 7
On August 12, 2015, respondent adopted the LGAL’s recommendation for
parental-alienation counseling in the form of an intensive intervention program. The
order also permitted the father to make any and all decisions regarding the children
during the intervention program and ordered that the children would stay with the father
until further order of the court. The mother appealed, and the Court of Appeals reversed
the trial court, agreeing that the August 12, 2015 order was entered in error because it
effectively changed the children’s custody from their mother to their father without a
prior determination regarding whether that change would alter the children’s established
custodial environment. 8
7
The father participated by telephone.
8
Eibschitz-Tsimhoni v Tsimhoni, unpublished per curiam opinion of the Court of
Appeals, issued April 14, 2016 (Docket No. 329406). The Court remanded the case for
further proceedings, stating:
While we reverse the trial court’s procedurally defective orders, we
note that nothing that this Court can do will change the reality of the
15
E. JUDICIAL TENURE COMMISSION PROCEEDINGS
The Commission issued a 28-day letter 9 to respondent on September 1, 2015,
outlining many of the facts discussed in this opinion. Respondent replied on October 23,
2015. On December 14, 2015, the Commission’s examiner (the Examiner) filed a formal
complaint against respondent that (1) alleged that respondent committed misconduct on
June 24, 2015, when she held three children in contempt, and (2) asserted that respondent
was not truthful in her October 23, 2015 answers to the Commission’s 28-day letter. In
particular, respondent had acknowledged that during the contempt hearing, she had
circled her temple with her finger while comparing LT to Charles Manson and his cult.
Respondent had claimed that she was not indicating that LT was crazy but was referring
to the “forward movement he would make in therapy.” The Examiner rejected this
children’s situation. On remand, the trial court shall conduct an evidentiary
hearing on the children’s custody as soon as possible to determine whether,
considering the myriad disruptions in this case, the children have an
established custodial environment. The trial court shall then use the
appropriate standard to determine what custody arrangement is in the
children’s best interests. [Id. at 3.]
Respondent recused herself from all further proceedings in the divorce and
custody case in December 2015.
9
MCR 9.207(A) provides that “[a] request for investigation of a judge must be made in
writing and verified on oath of the complainant. The commission also is authorized to act
on its own initiative or at the request of the Supreme Court, the state court administrator,
or the Attorney Grievance Commission.” If the Commission chooses to act, MCR
9.207(D)(1) provides that “[b]efore filing a complaint or taking action . . . , the
commission must give written notice to the judge who is the subject of a request for
investigation. The purpose of the notice is to afford the judge an opportunity to apprise
the commission, in writing within 28 days, of such matters as the judge may choose,
including information about the factual aspects of the allegations and other relevant
issues.”
16
explanation as untrue. The Examiner also alleged that respondent, in her October 23,
2015 answers to the Commission’s 28-day letter, had misrepresented the facts when she
claimed that she did not find the children in contempt for their refusal to talk to or have
lunch with their father.
This Court appointed retired Third Circuit Court Judge Daniel Ryan as master (the
Master) to hear the Commission’s complaint. After holding hearings, the Master first
concluded that respondent committed misconduct by holding LT in contempt for refusing
to participate in parenting time on June 24, 2015, when no parenting-time order for LT
existed. Second, the Master concluded that respondent engaged in misconduct by
inappropriately giving the “keys to the jailhouse” to the father, who had informed
respondent through counsel on June 23 that he would be leaving for Israel shortly after
the June 24 parenting-time session, which would deprive the three children of the
opportunity to purge themselves of contempt. Third, the Master agreed with the
Examiner that respondent engaged in inappropriate behavior by gesturing that LT was
crazy like Charlie Manson and his cult and by failing to act in a patient, dignified, and
judicial manner as illustrated by her disparaging comments to the children about
themselves, their siblings, and their mother during the contempt hearing, which crossed
the bounds of “stern language.” Last, the Master concluded that respondent
misrepresented to the Commission that the gesture meant “moving forward” with
therapy. The Master rejected as semantics the Examiner’s claim that respondent
misrepresented the facts when she claimed that she did not find the children in contempt
for the simple reason that they refused to talk to or have lunch with their father.
17
The Commission adopted the Master’s findings and conclusions with one notable
exception. That is, the Commission concluded that respondent had not made a
misrepresentation to the Commission when stating only that she “believed” the gesture
meant “moving forward” with therapy. Nonetheless, the Commission determined that
respondent’s representation was misleading, and it imposed costs incurred by the
Commission in the amount of $12,553.73. After applying the factors set forth in In re
Brown, 10 the Commission determined that a public censure and 30-day suspension
without pay was an appropriate sanction.
Respondent petitioned this Court to reject the Commission’s conclusion that she
committed misconduct and to reverse the assessment of costs against her. The Examiner
filed a reply brief in support of the Commission’s decision and recommendation.
II. ANALYSIS
Section 30(2) of Article 6 of the 1963 Michigan Constitution establishes the
Commission’s authority:
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.
10
In re Brown, 461 Mich 1291, 1292-1293; 625 NW2d 744 (2000).
18
Similarly, MCR 9.205(B) provides in part:
Grounds for Action. A judge is subject to censure, suspension with
or without pay, retirement, or removal for conviction of a felony, physical
or mental disability that prevents the performance of judicial duties,
misconduct in office, persistent failure to perform judicial duties, habitual
intemperance, or conduct that is clearly prejudicial to the administration of
justice. . . .
(1) Misconduct in office includes, but is not limited to:
(a) persistent incompetence in the performance of judicial duties;
(b) persistent neglect in the timely performance of judicial duties;
(c) persistent failure to treat persons fairly and courteously;
(d) treatment of a person unfairly or discourteously because of the
person’s race, gender, or other protected personal characteristic;
(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 . . . .
The Examiner has the burden of proving the allegations of judicial misconduct by
a preponderance of evidence. 11
A. STANDARD OF REVIEW
Judicial tenure cases come to this Court on recommendation of the Commission,
but the authority to discipline judicial officers rests solely with the Michigan Supreme
11
In re Morrow, 496 Mich 291, 298; 854 NW2d 89 (2014); MCR 9.211(A).
19
Court. 12 Accordingly, this Court reviews recommendations made by the Commission
and its findings of fact de novo. 13
B. JUDICIAL MISCONDUCT
The Commission concluded that the following actions of respondent on June 24,
2015, constituted judicial misconduct:
• Respondent held LT in contempt on June 24, 2015, for refusing to
participate in parenting time with his father on that date when the only
order applying to him called for him to visit with his father on July 14,
2015.
• Having ordered the three children in this case to be confined to Children’s
Village for contempt of court, respondent delegated to a third party the
discretion to determine when they had purged themselves of contempt.
• Respondent failed to act in a patient, dignified, and judicial manner during
the contempt proceedings against the three children, aged 9, 10, and 13,
directing to them insulting, demeaning, and humiliating comments and
gestures far exceeding the proper bounds of stern language permitted to a
judge.
1. APPARENT AND ACTUAL ABSENCE OF APPROPRIATE
JUDICIAL TEMPERAMENT
We agree with the Commission’s third conclusion that respondent’s actions and
demeanor during the June 24, 2015 contempt hearing violated certain canons of the Code
of Judicial Conduct. 14 Canon 1 provides, in part, that “[a] judge should . . . observe[]
12
See Const 1963, art 6, § 30(2).
13
In re Chrzanowski, 465 Mich 468, 478-479; 636 NW2d 758 (2001).
14
The unfortunate facts of this case would challenge the temperament and objectivity of
any judge committed to his or her statutory and constitutional duties. Such circumstances
do not, however, provide a judge with a free pass to breach the high standards of conduct
20
high standards of conduct so that the integrity and independence of the judiciary may be
preserved.” Canon 2(A) provides that “[p]ublic confidence in the judiciary is eroded by
irresponsible or improper conduct by judges.” Canon 2(B) adds that “a judge should treat
every person fairly, with courtesy and respect.” And Canon 3(A)(3), provides that “[a]
judge should be patient, dignified, and courteous to litigants . . . and others with whom
the judge deals in an official capacity . . . .”
Respondent’s conduct toward the children on June 24, 2015, violated these
canons. Respondent did not observe high standards of conduct and did not preserve the
integrity of the judiciary when she mocked the children, threatened them, called them
“crazy” and “brainwashed,” exaggerated or lied about the conditions at Children’s
Village, and generally expressed hostility to the children and their mother.
The Commission also correctly concluded that respondent’s behavior eroded
public confidence in the judiciary. Respondent was keenly aware that her conduct would
be captured by a video recording of the proceedings. She even reminded the children of
the constant surveillance to which they were subject in all areas of the court premises.
And yet, fully aware that her actions were being captured on video, respondent directed
demeaning, threatening, and sarcastic statements to the children.
The record of the June 24, 2015 hearing also cannot be said to “promote public
confidence in the integrity and impartiality of the judiciary.” 15 To the contrary,
imposed on the judiciary of Michigan. They may, however, mitigate the penalty imposed
for an isolated breach of conduct by a judge with no other recorded instances of judicial
misconduct.
15
Canon 2(B).
21
respondent’s actions reflected neither integrity nor impartiality. She certainly did not
treat the children “with courtesy and respect.” 16 Respondent had every right to insist that
the children, like all persons before the court, respect the rule of law and the orders of the
court. But respondent could have contrasted her expectations with the defiant actions of
the children. Similarly, she could have calmly yet sternly explained the consequences
associated with defiance of a court order, and she could have clearly articulated her
disappointment in the actions of the children. Instead, she referred to the children in a
demeaning, disrespectful, and inappropriate way and allowed her understandable
frustrations to impede her management of the proceedings. Respondent’s behavior and
demeanor toward the children completely lacked any semblance of patience, dignity, or
courtesy. We agree with the Commissioner that respondent violated the aforementioned
canons of the Code of Judicial Conduct.
2. ABUSE OF CONTEMPT POWER
While we agree with the Commission to the extent that it concluded that
respondent’s actions and demeanor violated certain canons of the Code of Judicial
Conduct, we disagree with the Commission that respondent committed judicial
misconduct with respect to the contempt orders. In her petition to this Court, respondent
maintains, ostensibly in regard to the Commission’s first two conclusions, that the
Commission inappropriately decided alleged legal errors beyond its jurisdiction as
provided in MCR 9.203(B). Although we disagree with any suggestion that “the
16
Canon 3(A)(3).
22
existence of appellate review to remedy a judge’s conduct divests the Commission of its
jurisdiction to review that same conduct for the existence of judicial misconduct,” 17 we
must likewise acknowledge that legal errors, standing alone, generally do not suggest the
existence of judicial misconduct. This understanding is rooted in MCR 9.203(B), which
provides:
The commission may not function as an appellate court to review the
decision of a court or to exercise superintending control or administrative
control of a court, but may examine decisions incident to a complaint of
judicial misconduct, disability, or other circumstance that the commission
may undertake to investigate under Const 1963, art 6, § 30, and MCR
9.207. An erroneous decision by a judge made in good faith and with due
diligence is not judicial misconduct.
Distinguishing judicial misconduct from legal error is not a simple endeavor. We
are guided by our recent decision in In re Morrow, a case in which we were presented
with several instances of judicial misconduct, all of which the respondent argued “should
be immune from action by the [Commission] because he acted ‘in good faith and with
due diligence[.]’ ” 18 This Court ultimately rejected the respondent’s argument, stating
that “[a]cting in disregard of the law and the established limits of the judicial role to
pursue a perceived notion of the higher good, as respondent did in this case, is not ‘good
faith.’ ” 19 Crucial to our determination that the respondent had committed misconduct
rather than legal error was the fact that he had willfully failed to follow the law even after
17
In re Laster, 404 Mich 449, 461-462; 274 NW2d 742 (1979).
18
Morrow, 496 Mich at 300 (second alteration in original).
19
Id.
23
the applicable law was brought to his attention. 20 Good faith, in this legal context, is
defined as “[a] state of mind consisting in (1) honesty in belief or purpose, [or] (2)
faithfulness to one’s duty or obligation” 21 A decision to willfully ignore the law is the
antithesis of a decision made in “good faith.” That is, a legal decision that is not made in
“good faith” reasonably implies that a judge has knowledge of the law but refuses to
acknowledge his or her duty or obligation to apply that law. This refusal cannot be
considered faithful to the law. Stated in terms of MCR 9.203(B), a “willful failure to
observe the law” is not merely “incident” to a complaint of judicial misconduct but is in
fact judicial misconduct because it cannot be characterized as a decision made in “good
faith.” Accordingly, a “willful failure to observe the law” directly implicates the
Commission’s duty “to prevent potential prejudice to future litigants and the judiciary in
general,” 22 and is squarely within the Commission’s jurisdiction.
Against this backdrop, we turn to the matter at hand. MCL 600.1701 states:
The supreme court, circuit court, and all other courts of record, have
power to punish by fine or imprisonment, or both, persons guilty of any
neglect or violation of duty or misconduct in all of the following cases:
* * *
(g) Parties to actions, attorneys, counselors, and all other persons for
disobeying any lawful order, decree, or process of the court.
20
Id. at 305.
21
Black’s Law Dictionary (10th ed).
22
Laster, 404 Mich at 462.
24
On June 23, 2015, respondent entered a written order reflecting that the father
would have supervised parenting time with RT and NT the next day in respondent’s jury
room. The order provided that the father’s visitation with LT would occur on July 14,
2015, after the father returned from a business trip. Yet, respondent held LT in contempt
on June 24 because he refused to participate in parenting time with his father. The
Commission concluded that respondent abused the power of contempt by holding LT in
contempt without any legal basis. Respondent maintains that her actions were less
egregious because she “did not act in the absence of any order whatsoever . . . .” While
respondent’s argument arguably admits that she did not have clear authority to hold LT in
contempt, there is some merit to respondent’s argument given that LT appeared to be
engaging in his persistent behavior of thwarting the parenting time between the younger
children and their father. Respondent understood that the parenting-time supervisor had
identified early on that the younger children were following LT’s cues and directions.
And respondent herself had witnessed this behavior at the August 14, 2014 parenting-
time session at which she personally intervened to prevent, in the words of the LGAL, the
children from “huddl[ing] together as if they were sending messages/vibes to each other
in some sort of Manson-like behavior.” 23 This same scenario appeared to be reoccurring
23
Indeed, during the public hearing, respondent acknowledged that she “would not have
informed . . . the middle child that his older brother had picked Children’s Village”
because in her view, “once I did that, [the middle child] went, oh, like he always did and
blindly followed [his older brother].”
25
on June 24, 2015, and respondent may have been justified in holding LT in contempt on
this basis. 24
But respondent did not clearly articulate this point at the contempt hearing. For
the purposes of this appeal, we assume, therefore, that she did not hold LT in contempt
for thwarting parenting time between the father and the younger children. And we agree
with the Commission that it would unquestionably be legal error to have held LT in
contempt without sufficient evidence that he had defied a “lawful order, decree, or
process of the court.” 25 We also agree with the Commission that respondent committed
a legal error by unlawfully delegating to the father the discretion to determine when any
of the children had purged themselves of contempt. 26 Respondent’s contempt orders as
to all three children violated the general rule that the contemnor must be given the “keys
to the jailhouse.” 27 The father planned to leave for Israel shortly after the children were
held in contempt. Yet, in regard to RT and NT, respondent ordered that
24
To the extent that LT’s behavior occurred outside respondent’s presence, such behavior
was not punishable as direct contempt; only the behavior that occurred “during [the
court’s] sitting, in its immediate view and presence,” MCL 600.1701(a), could be
punished as direct contempt. See In re Scott, 342 Mich 614, 619; 71 NW2d 71 (1955)
(“[P]ersonal judicial knowledge of the operative facts is necessary in a summary
conviction . . . .”).
25
MCL 600.1701(g).
26
MCL 600.1715(2) states that “[i]f the contempt consists of the omission to perform
some act or duty that is still within the power of the person to perform, the imprisonment
shall be terminated when the person performs the act or duty or no longer has the power
to perform the act or duty . . . .”
27
See In re Moroun, 295 Mich App 312, 318; 814 NW2d 319 (2012) (opinion by K. F.
KELLY, J.).
26
[y]our mother is not allowed to visit, no one on your mom’s side is allowed
to visit. Only your father and therapist and Mr. Lansat [LGAL]. When you
are ready to have lunch with your dad, to have dinner with your dad, to be
normal human beings, I will review this when your dad tells me you are
ready.
While the record does suggest that the children could have purged themselves of
contempt by informing Lansat that they would be amenable to meeting with their father,
this was not made entirely clear at the hearing, and the order of contempt left the
impression that only the father had the “keys to the jailhouse.”
In this case, as will be further discussed, respondent’s decision to hold the children
in contempt was an isolated instance of legal error. But we find it more significant that
the errors—holding LT in contempt and giving the father the keys to the jailhouse—
could have been remedied on appeal, that the errors were made with the parties’
knowledge, and that the parties failed to object to the orders. Further, in this tense court
hearing, the children each had a lawyer present as well as the LGAL. The record also
reflects that an FOC counselor was in the courtroom as well as an assistant prosecuting
attorney. None of the lawyers or trained professionals in the courtroom suggested that
respondent’s actions crossed the line nor did they offer alternative actions for the court’s
consideration. For these reasons, we cannot conclude that respondent’s decisions are
fairly characterized as “willful failure[s] to observe the law.” 28 Respondent had the
statutory authority to hold any contemptuous person in contempt of court, and it certainly
appears that at least RT and NT blatantly defied the court’s order. 29 As previously
28
See Morrow, 496 Mich at 299.
29
In addition, the parties do not dispute that if respondent had the authority to hold the
27
discussed, respondent may even have had authority to hold LT in contempt for
encouraging his younger siblings’ contemptuous behavior, but we need not decide that
question because even if that was not the basis of respondent’s contempt order, it is clear
that respondent did not act in willful disregard of the law. In distinguishing between
judicial misconduct and a merely erroneous legal decision, we find our decision in In re
Post 30 instructive. In that case, the respondent held an attorney in contempt for
attempting to assert his client’s Fifth Amendment right against self-incrimination. 31 The
client had appeared for an arraignment on the charge of minor in possession of alcohol. 32
He pleaded not guilty, and the respondent inquired whether the client could pass a drug
test that day. 33 The attorney stated that his client would stand mute to the question on the
basis of his Fifth Amendment right. 34 The respondent nonetheless elicited an admission
from the client and continued to press the client for details about his recent substance
abuse. 35 The attorney repeatedly objected, but the court simply ignored him or belittled
his representation. 36 When the attorney persisted in asserting that the court was violating
children in contempt, sending them to Children’s Village was an appropriate sanction.
30
In re Post, 493 Mich 974; 830 NW2d 365 (2013).
31
Id. at 982-994.
32
Id. at 980.
33
Id. at 981, 983.
34
Id. at 983.
35
Id. at 983-991.
36
Id. at 983-994.
28
his client’s Fifth Amendment right, the respondent held the attorney in contempt of
court. 37 Although the respondent maintained that “his actions did not violate [the
client]’s Fifth Amendment right in the United States Constitution or Article [1], Section
17 or the Michigan State Constitution,” 38 the Commission disagreed and concluded that
“attached transcripts show by a preponderance of the evidence, that [r]espondent
breached the standards of judicial conduct . . . .” 39 Among the numerous violations of the
standards of judicial conduct found by the Commission, the Commission specifically
noted that the respondent’s “[c]onduct . . . violates MCL 600.1701, addressing
contempt.” 40 The Commission recommended that the respondent be publicly censured
and suspended from judicial office without pay for 30 days, and this Court accepted that
recommendation. 41
Unlike respondent in the instant case, the respondent in Post was repeatedly
informed by an attorney that he was acting in violation of the law. Counsel, as an officer
of the court, made numerous attempts to not only protect the constitutional rights of his
client but also to assist the court in properly applying the law. In response, the
respondent in Post utterly disregarded the concerns of the attorney and belittled him
37
Id. at 991-994.
38
Id. at 976.
39
Id. at 977.
40
Id.
41
Id. at 974.
29
before holding him in contempt. These circumstances, in our view, plainly exhibit a
“willful failure to observe the law.” 42 The same cannot be said in this case, in which
several attorneys, including the parents’ attorneys, the children’s individual attorneys, a
prosecuting attorney, and the LGAL, did not object or offer any substantial resistance to
respondent’s decisions.
Further, our review of judicial misconduct matters involving a complaint about a
court’s abuse of its contempt power supports the conclusion that respondent’s legal error
did not constitute judicial misconduct. A clear case in which a judge abused the
contempt power is In re Seitz. 43 In that case, the respondent ordered a youth home
director “to release a juvenile female to her father after 9:00 a.m. for a hearing to be
conducted in the courthouse that afternoon.” 44 Although the order was contrary to an
order of the chief judge, it “contained the statement that failure to comply would be
deemed contempt.” 45 The youth home director “expressed his concern about the order
[to the chief judge], who instructed [the youth home director] not to release the girl to her
father.” 46 “[The youth home director] testified that in any conflict, he thought he would
42
See Morrow, 496 Mich at 299.
43
In re Seitz, 441 Mich 590; 495 NW2d 559 (1993).
44
Id. at 601.
45
Id.46
Id.30
be required to follow the directive of the chief judge.” 47 Therefore, the youth home
director did not release the juvenile to her father when he came to get her. 48
The respondent had the youth home director arrested and brought to his
courtroom. The respondent then “conducted a ‘mock’ hearing devoid of due process.” 49
The respondent ignored the youth home director’s request for counsel and ordered him to
call the youth home and have the girl released. 50 The youth home director cited the chief
judge’s order, and the respondent found him in contempt of court and ordered him
jailed. 51 Under these circumstances, this Court agreed with the Commission that the
respondent had abused his contempt power because “the facts amply support the
conclusion that [the respondent] was intent upon subverting the rules of his court and the
decisions of his chief judge with which he disagreed . . . .” 52
A less egregious example of a judge abusing the contempt power is presented in In
re Hague, 53 in which the respondent “began systematically dismissing prostitution cases
for the stated reason that the preprinted citation or ticket forms which had been issued to
47
Id.48
Id.49
Id.50
Id.51
Id. at 601-602.
52
Id. at 604.
53
In re Hague, 412 Mich 532, 540; 315 NW2d 524 (1982).
31
defendants as the charging document could not be used to initiate non-traffic ordinance
violation cases.” The city sought and received from the chief judge “a temporary order of
superintending control directed to respondent which ordered” that the respondent “ ‘cease
dismissing non-traffic ordinance complaints . . . based upon objection to their form until
further order of this court.’ ” 54
Nonetheless, the respondent continued to act contrary to the order of
superintending control. The respondent also threatened the city’s assistant corporation
counsel with contempt of court if he continued to bring prostitution cases:
It is the order of this court that no further prostitution cases be
brought into this courtroom, and they can be tried before a referee or any
other judge in this court. Now whatever you want to do with them, that’s
your privilege.
Mr. Representative of the Detroit Police Department and Officer,
don’t bring them in this courtroom anymore; that’s an order of the court. If
you do, I’m going to cite you for contempt of court the minute you walk
through the court with the prostitutes; do you understand?[55]
This Court concluded that the respondent’s “completely unjustified threat of
contempt . . . was ‘conduct prejudicial to the administration of justice’ and an abuse of
the court’s contempt power warranting discipline.” 56
Seitz and Hague present clear examples of judges abusing the contempt power—
abuse that constituted judicial misconduct. Both judges defied clearly controlling
54
Id.55
Id. at 554.
56
Id. at 555.
32
directives that they had no discretion to ignore. Their failure to comply again and again
evinced a “willful failure to observe the law.” 57
In contrast, consider In re Hocking, in which the respondent held an attorney in
contempt after the respondent
instigated a confrontational exchange with [an attorney] by challenging her
to tell him why her motion was not the frivolous action he clearly had
predetermined it was, made caustic comments in an abusive tone, and
personally attacked [the attorney], conduct that is clearly prejudicial to the
administration of justice [and] in violation of the Code of Judicial
Conduct.[58]
The Court observed that the respondent illustrated “a total lack of self-control and an
antagonistic mind-set predisposed to unfavorable disposition.” 59 Even so, neither the
master nor the Commission concluded that the respondent’s contempt proceeding in and
of itself was judicial misconduct. 60
57
See Morrow, 496 Mich at 299.
58
In re Hocking, 451 Mich 1, 23; 546 NW2d 234 (1996).
59
Id.60
Id. at 22. This Court agreed with that conclusion:
[The attorney] acted improperly in arguing the merits of the motion
when she had been instructed not to do so and in continuing to argue after
the court had ruled. Fortunately, such behavior is rare, but a judge has
undoubted authority to control runaway behavior up to and including
contempt. To hold that a trial judge may not express strong displeasure or
even anger, would ignore the reality that the potential for such reactions
induces a level of civility in the process, without which the system literally
could not function. [Id. at 23.]
33
We conclude that respondent’s behavior in this case is far more similar to Hocking
than to Post, Seitz, and Hague. While all of these cases involved a lack of judicial
temperament that was deemed judicial misconduct, Post, Seitz, and Hague also involved
judicial misconduct relating to an abuse of the contempt power because those erroneous
legal decisions also evinced a willful failure to obey the law. Like Hocking, respondent’s
decision to hold the children in contempt in this case did not reflect a willful failure to
follow the law and is better characterized as legal error that could have been remedied on
appeal. Thus, our caselaw supports the conclusion that respondent’s legal error did not
constitute judicial misconduct.
We also conclude that respondent acted with due diligence when holding the
children in contempt. Due diligence is defined in Black’s Law Dictionary as “[t]he
diligence reasonably expected from, and ordinarily exercised by, a person who seeks to
satisfy a legal requirement or to discharge an obligation.” 61 It is significant that
respondent approached these contempt proceedings as addressing matters of direct civil
contempt. Pursuant to MCL 600.1701(a), a trial court may punish by fine, imprisonment,
or both “contemptuous, or insolent behavior, committed during its sitting, in its
immediate view and presence, . . . directly tending to interrupt its proceedings or impair
the respect due to its authority.” Respondent ordered that supervised visitation between
the father and his two younger children take place in the court’s jury room. But the
children refused to comply. Where, as here, the court believes contempt was committed
61
Black’s Law Dictionary (10th ed).
34
“during its sitting” and in its “immediate view and presence,” the contempt is direct and
the court may summarily make a finding of contempt and punish the contemnor. No
hearing is required for a finding of direct contempt. 62 Even though respondent proceeded
on a theory of direct contempt and neither the appointment of counsel nor a hearing is
required to make a summary finding of direct contempt, respondent conducted a hearing
at which she addressed each child individually and gave them the opportunity to comply
with the court’s directive. Further, respondent appointed three independent attorneys to
allow each of the children the opportunity to purge himself or herself of the contempt.
The attorneys were informed that the contempt proceeding would begin only after each
attorney had an opportunity to meet individually and confidentially with their respective
clients. After 30 minutes, respondent commenced the contempt hearing. Each attorney
indicated a willingness to proceed. No attorney requested additional time to prepare for
the hearing. This process—not required for proceedings involving direct contempt—
shows that respondent acted with due diligence, even if she ultimately committed legal
error. Accordingly, having reviewed the entire case, we cannot conclude that respondent
committed judicial misconduct by holding the children in contempt.
62
See In re Contempt of Warriner, 113 Mich App 549, 554-555; 317 NW2d 681 (1982)
(acknowledging that “[t]he United States Supreme Court has long held that such
summary punishment accords due process of law”), citing Fisher v Pace, 336 US 155; 69
S Ct 425; 93 L Ed 569 (1949), and Ex Parte Terry, 128 US 289; 9 S Ct 77; 32 L Ed 405(1888).
35
C. DISCIPLINARY ANALYSIS
The Commission recommends that this Court suspend respondent for 30 days
without pay. The Commission arrived at this recommendation after finding that several
of the Brown 63 factors militated in favor of a more serious sanction.
In Brown, the Court articulated the following seven factors to consider when
determining the seriousness of the misconduct at issue:
(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 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
63
Brown, 461 Mich 1291.
36
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.[64]
The Commission concluded that respondent’s misconduct (1) was isolated but
could reoccur without intervention, (2) occurred on the bench, (3) was prejudicial to the
administration of justice and the appearance of propriety, (4) implicated the actual
administration of justice, (5) “was a spontaneous reaction to her continued frustration and
inability to bring order to a dysfunctional relationship between the father and his
children,” though there was no effort “to contain or repair the damage,” 65 (6) undermined
the ability of the justice system to discover the truth about what occurred in this legal
controversy, or to reach the most just result in this case, 66 and (7) did not involve the
64
Id. at 1292-1293.
65
The Commission observed that although “[r]espondent’s actions appear to have been
contemplated for nearly a year, and she had the chance to reflect upon her actions during
the course of a hearing that lasted nearly an hour,” “the video record of the proceedings
suggests that [respondent’s] anger was a spontaneous reaction to her continued frustration
and inability to bring order to a dysfunctional relationship between the father and his
children.” We agree that respondent’s previous contemplation of a potential response to
the children’s failure to comply with her orders does not necessarily mean that
respondent deliberately took the action a year later. The circumstances changed during
the year, and according to the Commission, “[t]he fact that her actions on the day in
question appear entirely out-of-character appears to confirm the fact that this is an
isolated instance of a judge losing her temper, rather than a case of a chronically abusive
judge.”
66
The Commission specifically found that respondent “did not intentionally interfere
with the fact-finding process in the underlying litigation.” However, the Commission
also concluded that “by failing to respond to the children’s allegations of violence
exhibited by their father, or permitting them freely to articulate their reasons for their
behavior on the record the first time they appeared in court before her, [r]espondent’s
misuse of her contempt power prevented her from taking the children’s perspective into
account.” While we acknowledge that respondent’s inappropriate behavior certainly
curtailed the children’s ability to “articulate their reasons for their behavior on the
37
unequal application of justice on the basis of race, color, ethnic background, gender, or
religion—the Commission stated that respondent’s misconduct “did, however, target
children.”
We generally agree with the Commission’s analysis of the Brown factors but are
compelled to clarify the application of Factors 1 and 7. In regard to Factor 1, the
Commission viewed respondent’s conduct as an “isolated instance” in light of her
“exemplary record.” But the Commission nevertheless found that respondent seemed not
to “recognize[] that her acts far exceeded the bounds of proper judicial conduct,” and that
her lack of awareness “suggest[ed] . . . a pattern that may repeat itself in the future, in the
absence of any corrective action.” But the fear of future misconduct by a judge who, by
record,” we do not agree that respondent failed to consider the children’s allegations
regarding their father’s violence. LT’s claim that his father had hit his mother had been
addressed five years before the contempt hearing and was not substantiated by the police
even though a complaint had been filed. Further, the record of the proceeding at which
this incident was raised revealed that the mother had made an unsupported allegation in
2008 that the father had abused her and the children. Also, at the contempt hearing,
respondent directly explained to LT that “[y]our father has never been charged with
anything, your father’s never been convicted of anything. Your father doesn’t have a
personal protection order against him.”
In regard to RT’s complaint that his father had abused him, the record reflects that
respondent held a full evidentiary hearing on these allegations on March 23, 2015, and
found insufficient proof of the allegations. At the public hearing, respondent explained in
detail that “[w]e had had a hearing previously as to that issue where witnesses were
allowed to be called where I heard one witness. I didn’t prevent anyone else from calling
any other witnesses. The parties chose not to call a witness. At that point, there was
insufficient evidence to support [RT’s] claim.” She further stated that “[t]he parenting
time supervisor, who was apparently a police officer, a retired police officer, testified and
said it did not occur. So -- so I informed the child that basically we have to move on
from this. Let’s move on.” (Emphasis added.) The record reflects that respondent was
in fact aware of the children’s allegations of their father’s physical violence, but
dismissed them as either stale and/or unsupported.
38
the Commission’s account, has an exemplary record of public service and whose
misconduct was “isolated” is not reason to impose a period of suspension. 67 To the
contrary, it is because this is an isolated instance of misconduct by a judge with an
otherwise exemplary record that a measured sanction should deter future misconduct. If
this behavior repeats itself in the future, the Commission can initiate new proceedings to
address that misconduct and a sanction may be imposed for a pattern of misconduct. We
conclude that this factor unequivocally favors a lesser sanction.
In regard to Factor 7, we are not persuaded by the Commission’s conclusion that a
greater sanction is warranted because respondent “targeted” children. We acknowledge
that respondent’s treatment of the children was inappropriate. We expect judges to
conduct themselves in a manner that is respectful and courteous to all individuals before
the court, especially vulnerable individuals such as children. Respondent let her
frustrations get in the way of this duty. Nonetheless, we do not believe respondent’s
conduct falls within the scope of Factor 7 because although her misconduct involved
children, there is no evidence that her misconduct involved “the unequal application of
justice . . . on the basis of a class of citizenship,” which is what Factor 7 seems to
require. 68 Assuming arguendo that age may be included within “such considerations as
race, color, ethnic background, gender, or religion,” we simply see no evidence that
67
The Commission’s assessment of respondent’s record of public service as exemplary is
supported by the letters submitted by respondent both from members of the State Bar and
the public, as well as a brief filed by joint amici curiae The American Academy of
Matrimonial Lawyers (Michigan Chapter) and the Oakland County Bar Association.
68
See Brown, 461 Mich at 1293.
39
respondent treated the children differently from other persons who had previously defied
court orders. Indeed, respondent jailed the mother for not complying with a court order.
Respondent’s assignment to a family court docket means that her cases often involve the
custody of children. In our view, respondent’s conduct during the hearing cannot be
described as demonstrating animus toward children. Instead, her conduct demonstrated
frustration with these particular children and their persistent refusal to follow the court’s
orders. 69 And while it is true that her conduct was inappropriate and crossed the line of
good judicial temperament, there is no evidence that respondent engaged in “the unequal
application of justice” when holding the children in contempt. Therefore, we conclude
that Brown Factors 1 and 7 do not weigh in favor of a more severe sanction.
The Commission reviewed five previous judicial discipline cases for guidance
regarding the proper sanction in this case: Morrow (60-day suspension); 70 Post (30-day
69
At oral argument, the Examiner conceded this point:
[Justice Viviano]: Because she’s upset because they’re not
complying. They’re not doing what she’s ordering them to do, right?
[Mr. Helland]: Right. Yes. I agree with you.
[Justice Viviano]: She has a right to be upset.
[Mr. Helland]: I agree with that.
70
Morrow, 496 Mich 291.
40
suspension); 71 In re Servaas (public censure); 72 In re Moore (6-month suspension); 73 and
Hocking (3-day suspension). 74 The Commission noted that in Moore, “a persistent
pattern of abusive misconduct” justified a 6-month suspension, whereas in Morrow, “a
persistent disregard for the controlling law stemming from idealistic motives” justified a
60-day suspension. At the other end of the spectrum are Hocking and Servaas, “isolated
cases of personal or professional misbehavior” that warranted “a short suspension or
censure, particularly if the harm extend[ed] no further than offending the personal
sensibilities of the affected parties.” The Commission concluded that as in Post, “the
combination of legal harm and intemperate behavior seems to call for more than a
minimal sanction.” 75 The Commission explained that respondent in this case
crossed the line from proper demeanor to caustic abuse; and here, as in
Post, the judge had misused the contempt power during the course of a
heated exchange in open court. In this case, both Respondent’s insulting
and demeaning language, and subsequent finding of contempt, were not
only abusive, but directed at children, rather than at a trained, albeit
inexperienced attorney. If anything, this makes the misconduct worse than
71
Post, 493 Mich 974.
72
In re Servaas, 484 Mich 634; 774 NW2d 46 (2009).
73
In re Moore, 464 Mich 98; 626 NW2d 374 (2001).
74
Hocking, 451 Mich 1.
75
We recognize that the Commission likely intended the word “intemperate” to refer to
respondent’s obvious frustration during the June 24, 2015 hearing, that is, “intemperate”
in its more modern connotation. We note, however, that we have construed “habitual
intemperance” in Const 1963, art 6, § 30(2), the constitutional provision concerning
judicial misconduct proceedings, to mean “the abuse of alcohol.” In re Mikesell, 396
Mich 517, 536; 243 NW2d 86 (1976). There are no such allegations in this case.
41
the judge’s actions at issue in Post, which resulted in the judge’s
suspension for [sic, from] office for thirty days.
The Commission also noted that in Post, the attorney who was cited for contempt spent
only a few hours in jail, whereas the children in this case spent 17 days confined at
Children’s Village. In sum, given respondent’s exemplary record, the Commission
determined that a 30-day suspension without pay was the appropriate sanction.
While “no two judicial misconduct cases are identical,” 76 we agree with the
Commission that Post is somewhat analogous to the instant case, but as previously
discussed, unlike Post, we conclude that respondent’s decision to hold the children in
contempt did not constitute judicial misconduct. Rather, this case is more analogous to
Hocking, which likewise concluded that the respondent had not abused the contempt
power but nonetheless held that the respondent’s behavior during the proceeding in that
case was prejudicial to the administration of justice. 77 In Hocking, the Commission had
recommended a 30-day suspension but because this Court disagreed with the
Commission’s conclusion that the respondent had abused the contempt power, the
respondent was only given a 3-day suspension. 78
Further, we find that several mitigating factors in this case also compel a lesser
sanction. First, as previously discussed, we believe that Brown Factors 1 (isolated
misconduct) and 7 (misconduct not involving a specified class of citizenship) suggest a
76
Brown, 461 Mich at 1295.
77
Hocking, 451 Mich at 23.
78
Id. at 3-4, 27.
42
lesser sanction. Second, unlike Post, which involved only one proceeding, a criminal
arraignment, the proceedings in this case were extremely contentious and protracted.
Respondent presided over this difficult matter for several years and heard dozens of
motions. This instance represents her single recorded lapse of good temperament. Third,
unlike Post, respondent’s frustration was understandable. While this Court certainly
cannot condone respondent’s behavior at the June 24, 2015 hearing, our review of the
proceedings differs from the Commission’s view that respondent targeted the children.
The record is clear that as early as August 2010 these children embarked on a concerted
effort to thwart meaningful interaction with their father and continued to do so despite
respondent’s orders to the contrary. Regardless of their age, there is no question that
during the intervening years, each child knew they were supposed to have visitation with
their father. And any person old enough to engage in this deliberately defiant behavior
over a five-year period must appreciate that they could be called before the court to
account for their actions.
Finally, there is no indication that respondent sought to personally benefit from
her misconduct, which is also a “relevant mitigating factor in determining the appropriate
discipline.” 79 Nor is there any indication of “dishonest or selfish conduct [that would]
warrant[] greater discipline than conduct lacking such characteristics.” 80 Thus, we
conclude that public censure is proportionate to the judicial misconduct established by the
record.
79
Morrow, 496 Mich at 303.
80
Id.
43
D. COSTS
In the 28-day letter, the Examiner requested that respondent provide information
concerning her conduct at the June 24, 2015 hearing during which she circled her temple
with her finger and said that LT behaved similarly to Charles Manson and his cult. In her
answer, respondent “denie[d] the truth of the statement that her gesture made while she
was speaking was intended to indicate or even imply that [LT] was crazy. She believes
that her hand motion was intended to indicate that Defendant Father should let the court
know if [LT] had made any forward movement as a result of the therapy he would soon
be receiving, simulating the motion of a wheel moving forward.” The Master noted that
the video of the hearing reflects that respondent “frequently speaks with her hands.”
Before the Master, respondent acknowledged how this hand gesture is portrayed
on the video, realizing the symbolism behind the gesture, and how it could be
misunderstood. She posited that “[i]f anyone believes or believed that she was indicating
that [LT] was crazy at the time, [she] will accept responsibility for the misunderstanding.
However, she never intended to offend anyone in this way.” The Master agreed with the
Examiner that respondent’s answer to the Commission was false. Specifically, the
Master believed that the explanation proffered by respondent for the gesture was similar
to her efforts at the July 10, 2015 proceeding to explain away her June 24, 2015 conduct
in retrospect.
The Commission disagreed with the Master’s conclusion that respondent’s answer
was false, and prefaced its analysis by stating that
it is the Commission’s conclusion that a false statement requires the
speaker’s knowledge that the statement is false and intended to deceive.
The fact that a statement may be incorrect does not, by itself, render the
44
statement “false” within the context of a legal proceeding. It may be
discredited, or deemed unworthy of belief, but given the limits of human
memory and perception, as well as the limitations of language, it would be
unfair to impute motives of deception or falsehood to everyone who says
something that someone else finds incredible, or that proves to be incorrect.
Selective memory does not equal falsehood; incorrect memory does
not equal falsehood; imprecision in expression does not equal falsehood;
even an answer that one chooses to disbelieve does not equal a falsehood.
The Commission noted that “the only real fact contained in Respondent’s response
to the question about her ‘circular gesture’ was her ‘belief’ about what she intended.”
The Commission explained that “[h]er subsequent testimony at the hearing before the
Master clarified that she did not recall making the gesture and was unaware she had done
so until she viewed the video recording of the proceedings, but that she felt obligated to
provide her best guess about what she intended.” The Commission stated that “as long as
she was candid about her lack of memory, we cannot deem speculations about her
motives or intentions in performing actions months earlier --- actions that she could not
even recall --- to be actionable falsehoods.” In the Commission’s view, “the simple
answer --- ‘I do not remember what was in my mind at the time’ --- would have been
both accurate and helpful.” The Commission concluded that “the Examiner failed to
prove the misconduct alleged in Count II by a preponderance of the evidence.” But the
Commission nonetheless held that “Respondent’s answer to the 28-day letter was
misleading enough to justify the imposition of costs under MCR 9.205(B).” According
to the Commission, “[t]he answer given, while not actionably false, was sufficiently
misleading to require a hearing to discover the facts, a facet of the hearing that the
simpler answer would have prevented.”
45
MCR 9.205(B) states:
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.
In her petition to this Court, respondent notes that MCR 9.205(B) authorizes this
Court to order payment of “the costs, fees, and expenses incurred by the [C]ommission 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
[C]ommission, the [C]ommission’s investigators, the [M]aster, or the Supreme Court.”
Respondent then highlights that the Commission “in its de novo review of the evidence
appropriately determined that [respondent] did not make any misrepresentation to the
Commission’s investigators, the Master, or the Commission, and found specifically that
her statements about her belief did not constitute intentional deception[.]”
A common definition of “misrepresent” is “to give a false or misleading
representation of usu[ally] with an intent to deceive or be unfair[.]” 81 Note that
“misrepresent” is defined in terms of a “misleading” statement, which renders the
meaning of “misleading” somewhat tautological. But a common definition of “mislead”
is “to lead in a wrong direction or into a mistaken action or belief often by deliberate
deceit[.]” 82 These definitions make clear that both a misrepresentation and a misleading
81
Merriam-Webster’s Collegiate Dictionary (11th ed).
82
Id.
46
statement generally include an actual intent to deceive. While the definitions do not
categorically exclude a lesser mens rea, we believe that respondent makes a solid point
that “[i]t is inconsistent to find one without the other as both seemingly require a
wrongful intent to misdirect.” Even though there may be some instances in which a
misrepresentation and a misleading statement are not based on an actual intent to deceive,
we believe that, at a minimum, there must be some showing of wrongful intent. In this
case, respondent merely speculated as to her intent and other than the possibility that the
guess was self-serving, which the Commission acknowledged and rejected, we cannot
conclude that respondent’s guess is akin to either a misrepresentation or a misleading
statement. Accordingly, we reject the Commission’s request to impose costs.
III. RESPONSE TO THE PARTIAL DISSENT
For the most part, the partial dissent agrees with the majority’s identification of the
pertinent facts and law applicable to this case. The partial dissent, however, disagrees
with “the majority’s conclusions that respondent’s exercise of her contempt power did
not constitute misconduct and that her behavior warrants only public censure.” The
partial dissent maintains that “respondent did not act in good faith or with due diligence
in the exercise of her contempt power” and that therefore the legal errors involved in that
exercise of her contempt power merit a finding of judicial misconduct.
We disagree with the partial dissent’s assertion that respondent did not act in good
faith. Michigan law requires family courts to evaluate the “willingness and ability” of
divorced parents to “facilitate and encourage a close and continuing parent-child
47
relationship between the child and the other parent or the child and the parents.” 83 It is
apparent from the record that respondent acted in furtherance of this ideal. Nonetheless,
for nearly five years, the children failed to make any meaningful effort or progress
toward developing a relationship with their father. Throughout the year preceding the
contempt hearing, respondent made progressive attempts to get the children to adhere to
the court’s directives to engage with their father. Various attempts at supervised
visitation were tried, but they were thwarted by the mother, the children, or both. 84 The
children’s LGAL advised the court to consider draconian measures to obtain compliance
from this family. Respondent ultimately heeded the advice of the LGAL. Under the
circumstances of this case and for the reasons stated in this opinion, we conclude that the
record well establishes respondent’s good faith in exercising her contempt power to
facilitate a relationship between the children and the father.
83
MCL 722.23(j).
84
Recall that during this period the mother admitted to violating the parenting-time
agreement after which she was temporarily jailed and later required to work at an animal
shelter for two days. She also agreed to pay the father’s attorney fees.
Moreover, recall that the mother had encouraged her children to call 911 on
August 27, 2010, to report that the father had allegedly abused her. The responding
officers saw no visible injuries to the mother, concluded that there was no probable cause
to arrest the father, and referred the matter to DHS, which later closed it. On March 23,
2015, respondent held a full evidentiary hearing after RT complained to the court that his
father had abused him. At that hearing, the parties called no witnesses, the parenting-
time supervisor testified that no abuse occurred, and respondent found insufficient proof
to support RT’s allegations.
48
We also disagree with the partial dissent that respondent did not act with due
diligence in the exercise of her contempt power. As earlier explained, respondent did not
act at a “breakneck pace” to find the children in contempt. To the contrary, respondent
implemented processes not typically required in a direct contempt situation in order to
afford the children an opportunity to comply with the court’s directives.
The partial dissent also suggests that respondent’s error was misconduct because
the contempt order violated a basic principle of civil contempt—that the contemnor must
be given the “keys to the jailhouse.” 85 But again, it is not the violation of basic principles
of law that transforms legal error into misconduct; it is acting without good faith and due
diligence that compounds legal error and gives rise to judicial misconduct. For the
reasons previously stated, we conclude that respondent acted in good faith and exercised
due diligence.
The partial dissent is also perplexed that the majority concludes that it is
significant that none of the many trained professionals who witnessed the contempt
proceeding interceded or signaled to respondent that she might be exceeding her
authority. Contrary to the conclusion of the partial dissent, we do not “rely on attorneys
and other bystanders to police a judge’s proceedings . . . .” Appellate courts check
reversible legal error, and the Commission checks judicial misconduct. But again, in
drawing the line where legal error also constitutes judicial misconduct, we must assess
85
Moroun, 295 Mich App at 318 (opinion by K. F. KELLY, J.). Interestingly, under the
dissent’s theory, the trial judge in Moroun would have been subject to discipline for
violating the longstanding principle that the contemnor must possess the keys to the
jailhouse.
49
the good faith and due diligence of the presiding judge. There were seven attorneys and
several trained family court professionals in respondent’s courtroom to protect various
interests and aid in the administration of justice, and not one of them concluded that it
was appropriate to aid the court in its judicial function or to lodge an objection to
respondent’s decision to hold the children in contempt. That so many trained
professionals failed to object or otherwise intervene supports the conclusion that
respondent acted in good faith and with due diligence. In other words, it is clear with the
benefit of hindsight that respondent committed legal error, but viewing her conduct in the
context in which it occurred—during heated litigation in a highly acrimonious
proceeding—we cannot conclude that respondent’s initiation of contempt proceedings
and the process she followed during the proceedings demonstrate that she acted in bad
faith or without due diligence.
Finally, the partial dissent takes issue with imposing a public censure rather than a
30-day suspension without pay. This divergence between the majority and the partial
dissent is in large part due to our disagreement that respondent’s erroneous finding of
contempt itself constitutes judicial misconduct. In our opinion, a lower sanction is
required because we do not accept the Commission’s conclusion that respondent was
guilty of misconduct in the exercise of her contempt power. But we also note that the
partial dissent makes much of the fact that five of the seven Brown factors weigh in favor
of a “more severe sanction.” The partial dissent fails to appreciate the context of the
words “more severe.” These factors suggest a more severe sanction in relation to the
overall range of sanctions appropriate to the misconduct established. The severity of the
misconduct plays a great role in determining the appropriate sanction range in the first
50
instance. Because the judicial misconduct in this case only relates to respondent’s
demeanor and temperament, a lesser range of sanctions applies than would apply had this
Court agreed with all the conclusions of misconduct found by the Commission. In this
case, we have a judge with no prior record of misconduct who in an isolated instance
exercised poor judgment and displayed a lack of appropriate judicial temperament and
demeanor during a highly acrimonious and protracted divorce and custody proceeding.
Under the circumstances, a public censure is appropriate.
IV. CONCLUSION
We order that respondent be publicly censured for committing judicial misconduct
under the understandably difficult circumstances of the underlying divorce and ongoing
custody matter. In sum, respondent became admittedly frustrated and exasperated at a
June 24, 2015 hearing when attempting to convince three children to participate in
parenting time with their father. Under these circumstances, we agree with the
Commission that respondent exhibited a lack of judicial temperament during the
proceedings in open court when she directed at the three children and their mother
language that was insulting, demeaning, and humiliating. Respondent also committed
legal error by holding the children in contempt, ordering them to be confined at the
Oakland County Children’s Village, and leaving in the hands of their father, who was
soon to be out of the United States, the ability of the children to purge themselves of civil
contempt. But that decision did not constitute a “willful failure to observe the law,”
which would merit a finding of judicial misconduct. In sum, we agree in part with the
Commission’s conclusion that respondent committed judicial misconduct, and we hold
51
that public censure is proportionate to the judicial misconduct established by the record.
We also reject the Commission’s recommendation that costs, fees, and expenses be
imposed against respondent under MCR 9.205(B).
Brian K. Zahra
Stephen J. Markman
Bridget M. McCormack
David F. Viviano
Joan L. Larsen
Kurtis T. Wilder
52
STATE OF MICHIGAN
SUPREME COURT
In re Honorable LISA O. GORCYCA,
Judge, 6th Circuit Court.
No. 152831
VIVIANO, J. (concurring).
I agree with the majority that a public censure is a sanction proportionate to the
limited judicial misconduct in this case. I also agree with the majority that there is no
basis on which to impose costs, fees, and expenses against respondent. I write separately,
however, because I believe that in Judicial Tenure Commission (JTC) cases we should
address all the legal bases for the findings of misconduct recommended to us by the JTC
or explain why we do not.
The JTC found that respondent violated Canons 1, 2(A), 2(B), 3(A)(1), 3(A)(3),
and 3(A)(9) of the Code of Judicial Conduct; committed misconduct under MCR
9.104(2) to (4); engaged in “misconduct in office” and “conduct clearly prejudicial to the
administration of justice” under Const 1963, art 6, § 30(2) and MCR 9.205; violated
MCR 9.205(A); and failed to exhibit due diligence. 1 The majority sustains only the
1
The JTC’s recommendation in this case follows what appears to be the JTC’s custom of
making a laundry list of findings of misconduct, including findings based on rules that
are duplicative, vague, and, in my view, entirely unnecessary. This wide-net approach is
unfair to respondents (and their attorneys) who must decide which of the myriad factual
and legal issues that arise in these cases should be the focus of their presentation to this
Court. I would encourage a more disciplined approach by the JTC in order to allow the
JTC’s findings as to Canon 1, the first sentence of Canon 2(A), Canon 2(B), and Canon
3(A)(3). I agree with the majority’s reasoning and conclusions with respect to these
findings 2 and interpret the majority’s silence as a rejection of the JTC’s remaining
findings. 3 And, with the exception of the JTC’s finding under MCR 9.104(2), I also
agree that no additional findings should be sustained. 4 I would simply explain why we
reached the conclusion we did for each of the JTC’s findings.
lawyers and litigants to sharpen the issues for us to resolve by spending more time on the
substance of the charges.
2
Respondent does not argue that any of the canons establishing a basis for action here are
aspirational in nature and thus fail to provide sufficient notice of prohibited conduct. Nor
does respondent argue that when there is a more specific canon governing the misconduct
alleged, the more general canons are inapplicable. See In re Haley, 476 Mich 180, 183;
720 NW2d 246 (2006) (“Having decided that respondent was in violation of a specific,
controlling judicial canon, we conclude that it is inappropriate to also consider whether
respondent created a general appearance of impropriety under Canon 2, as urged by the
examiner.”). Nor has respondent argued that MCR 9.205(A) is aspirational only,
although I note that there is no language in MCR 9.205 providing that a violation of
Subrule (A) may constitute a ground for action. To me, these questions are worth
considering in the future.
3
Respondent does not argue that we may not sanction her solely on the basis of
violations of the Code of Judicial Conduct, i.e., without also finding a violation of Const
1963, art 6, § 30(2), see, e.g., In re Kapcia, 389 Mich 306, 311; 205 NW2d 436 (1973)
(once the JTC makes a recommendation, “the Supreme Court ‘may censure, suspend with
or without salary, retire or remove’ a judge on grounds specified in the Constitution”), so
I would not reach that question either.
4
I agree with the JTC to the extent it found that respondent engaged in “[c]onduct
exposing the legal profession or courts to . . . reproach,” contrary to MCR 9.104(2). But
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, I
would not address the issue. See In re Simpson, ___ Mich ___, ___ n 26; ___ NW2d ___
(2017) (Docket No. 150404); slip op at 19 n 26.
2
In my judgment, this Court should, as a matter of course, address all the legal
bases for the findings of misconduct submitted to us by the JTC, just as I would expect
the JTC, as a matter of course, to resolve all the allegations of misconduct in the formal
complaint and to address all the findings of the master. 5 Respondent judges and the
public are entitled to have this Court carefully and rigorously assess all the legal bases for
the JTC’s findings of misconduct to ensure that the ultimate sanction imposed is
proportionate to the misconduct and supported by legal authority. More than that, too,
respondent judges and the rest of the Michigan judiciary deserve the benefit of our
careful consideration and reasoned opinion regarding each charge submitted to us. The
bench should have the benefit of our explanation of the court rules, the Constitution, and
the judicial canons as applied to particular conduct, especially because much of this
authority is not specific about the conduct it prohibits.
In the end, I agree with the majority that respondent’s courtroom conduct violated
certain provisions of the Code of Judicial Conduct and that a public censure is a
proportionate sanction. Accordingly, I concur.
David F. Viviano
Bridget M. McCormack
5
See generally In re Simpson, ___ Mich at ___; slip op at 12-14 (noting the disconnect
between the allegations in the formal complaint, the master’s findings, and the JTC’s
findings).
3
STATE OF MICHIGAN
SUPREME COURT
In re Honorable LISA O. GORCYCA,
Judge, 6th Circuit Court.
No. 152831
BERNSTEIN, J. (concurring in part and dissenting in part).
I agree with my colleagues in the majority that respondent, Sixth Circuit Judge
Lisa O. Gorcyca,’s language and demeanor throughout the June 24, 2015 hearing
constituted judicial misconduct and that the imposition of costs under MCR 9.205(B)
would not be appropriate in this case. I also agree in broad strokes with the majority’s
recitation of the underlying facts. However, I respectfully disagree with the majority’s
conclusions that respondent’s exercise of her contempt power did not constitute
misconduct and that her behavior warrants only public censure. I would have adopted the
findings and recommendation of the Judicial Tenure Commission (Commission) to
publicly censure respondent and suspend her from office for 30 days without pay.
I. ABUSE OF CONTEMPT POWER
The majority insists that respondent did not commit misconduct by holding the
oldest child in contempt even though he was not subject to the June 24 parenting-time
order at issue or by ordering all three children to be confined to Children’s Village and
delegating to their father the discretion to determine when the children had purged
themselves of contempt. Rather, the majority insists, these actions constituted no more
than legal error. As the majority notes, under MCR 9.203(B), “[a]n erroneous decision
by a judge made in good faith and with due diligence is not judicial misconduct.” But as
the plain language of the court rule makes clear, legal error is not automatically shielded
from review by the Commission or by this Court—to be so shielded, a legal error must
have been made in good faith and with due diligence. Legal error and judicial
misconduct are not mutually exclusive. As this Court explained in In re Laster, 404
Mich 449, 462; 274 NW2d 742 (1979):
Judicial conduct creating the need for disciplinary action can grow from the
same root as judicial conduct creating potential appellate review, but one
does not necessarily exclude the other. One path seeks to correct past
prejudice to a particular party; the other seeks to prevent potential prejudice
to future litigants and the judiciary in general.
The majority’s analysis overlooks the context of respondent’s actions; that context
demonstrates that respondent did not act in good faith or with due diligence in the
exercise of her contempt power.
As this Court stated in In re Hague, 412 Mich 532, 555; 315 NW2d 524 (1982):
“The contempt power is awesome and must be used with the utmost restraint. . . . Abuse
of the contempt power, including unjustified threats to hold persons in contempt,
constitutes misconduct warranting discipline.” (Citations omitted.) Clearly, then, judges
must be prudent in their use of this power, and they must be held responsible accordingly.
See People v Matish, 384 Mich 568, 572; 184 NW2d 915 (1971) (“The power to punish
for contempt is awesome and carries with it the equally great responsibility to apply it
judiciously and only when the contempt is clearly and unequivocally shown.”).
2
In this case, respondent entered a written order on June 23, 2015, stating that the
father would have supervised parenting time with the two younger children the next day
in respondent’s jury room. The order expressly provided that the father’s next visitation
with the oldest child would occur on July 14, 2015, after the father returned from a
business trip. Nevertheless, on June 24, 2015—the day after the visitation order
entered—respondent held the oldest child, LT, in contempt because he refused to
participate in parenting time with his father on that same day. The Commission properly
concluded that respondent abused the contempt power by holding LT in contempt
without any legal basis. Respondent suggests that her actions were less egregious
because she “did not act in the absence of any order whatsoever . . . .” However, that
respondent can only argue in the negative here rather than positively pointing to any
record evidence to validate the contempt order merely serves to underscore the point that
she was and is unable to provide any clear justification for her decision to hold LT in
contempt. 1
As the Commission concluded, respondent also unlawfully delegated to the father
the discretion to determine when any of the children had purged themselves of contempt.
Even though respondent was aware that the father would be leaving shortly after the June
24 hearing for a weeks-long business trip to Israel, she ordered that LT be confined to
1
Indeed, to the extent that respondent intended to argue that holding LT in contempt was
somehow related to an order, her argument must fail—LT clearly had not violated the
June 23, 2015 order for visitation on June 24, 2015, because that part of the order was not
directed to him.
3
Children’s Village and announced that the father could let her know if LT “changed.”
With regard to the two younger children, RT and NT, respondent ordered:
Your mother is not allowed to visit, no one on your mom’s side is
allowed to visit. Only your father and therapist and [legal guardian ad litem
(LGAL)] Mr. Lansat. When you are ready to have lunch with your dad, to
have dinner with your dad, to be normal human beings, I will review this
when your dad tells me you are ready. Otherwise, you are living in
Children’s Village [until] you graduate from high school.
Respondent’s contempt orders regarding all three children therefore violated a basic
principle of civil contempt—that the contemnor must be given the “keys to the
jailhouse.” In re Moroun, 295 Mich App 312, 318; 814 NW2d 319 (2012) (opinion by K.
F. KELLY, J.). In giving the father the sole authority to ask respondent to revisit her
contempt orders, respondent completely removed from the children the ability to satisfy
the court’s demands and to lift the court’s contempt order. This left the children
powerless, with no way to purge themselves of contempt while the father was out of the
country.
It is clear that respondent wielded her contempt power inappropriately. The
majority would have us dismiss this as an innocent mistake, unworthy of our
intervention. But this attitude is at odds with our established caselaw regarding the
contempt power. We have made clear in cases like Hague and Matish that judges do not
have the luxury of using this awesome power casually; they must wield it with care or
risk facing judicial discipline.
I disagree with the majority’s attempts to make factual distinctions between this
case and prior judicial misconduct cases. The majority argues primarily that the legal
errors respondent made when she held the children in contempt could have been
4
remedied on appeal and that they were made with the parties’ knowledge and without any
objection. Because the bevy of lawyers and trained professionals present in the
courtroom—the majority reels off a list of the children’s appointed lawyers, the LGAL, a
Friend of the Court counselor, and an assistant prosecuting attorney—did not object, the
majority insists that respondent could not possibly have engaged in a “willful failure to
observe the law.”
First, I am hard-pressed to see how the weeks-long wrongful confinement of three
children could be fully remedied by a standard appeal, but even if it could, the
availability of appellate review does not exclude the possibility of judicial misconduct
warranting discipline. Laster, 404 Mich at 461-462. The majority’s reliance on the
number of people who did not object to respondent’s contempt rulings is also perplexing.
Regardless of how many attorneys were in the courtroom during the summary contempt
hearing, only the children’s appointed attorneys had any duty to raise objections on the
children’s behalf, and respondent’s conduct left them woefully ill-prepared to do so. The
children’s attorneys were given no more than 30 minutes to confer with their young
clients. They were not given an opportunity to review any pleadings or court orders and
were given only a brief description of the situation by the LGAL. 2 Given the breakneck
pace of the contempt hearing and the attorneys’ lack of preparedness, it seems
implausible that their lack of objection could serve as an endorsement of respondent’s
conduct. Moreover, even if the attorneys had been given adequate time to prepare, to rely
2
NT’s attorney assured respondent that she had encouraged the child “to apologize for
whatever she did.”
5
on attorneys and other bystanders to police a judge’s proceedings flies in the face of
MCR 9.205(A), which provides, “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.” 3 The majority is mistaken in tacitly condoning respondent’s finger-pointing.
The majority also fails to take into account that, under MCR 9.203(B), a legal
error is not judicial misconduct only if the error was made in good faith and with due
diligence. The majority’s conclusion that respondent’s decisions did not demonstrate a
willful failure to observe the law encompasses only a review for good faith.
Additionally, this conclusion is belied by the context in which the contempt hearing took
place—within the divorce and child custody case as a whole. The majority focuses on
distinguishing this case from In re Post, 493 Mich 974; 830 NW2d 365 (2013), in which
the respondent ignored an attorney’s efforts to inform him that he was acting in violation
of the law. The majority suggests that because there was no objection to respondent’s
contempt orders, respondent could not have known that her actions were improper. Ergo,
because respondent did not willfully violate the law, she did not commit judicial
misconduct.
But respondent has made clear in her arguments to this Court that she had been
displeased with the behavior of the children in the custody case for some time. By July
2013, she began threatening to hold the parents in contempt for their violations of court
orders, and by August 2014, she was considering holding the children in contempt.
3
To hold otherwise seems tantamount to insulating judicial misconduct against its
consequences by way of ineffective assistance of counsel.
6
Respondent had therefore been contemplating the actions she took on June 24, 2015, for
nearly a year. She had ample time to consider whether her actions were lawful or
appropriate. There were endless opportunities during that period for respondent to
research the law of contempt and to thereby fulfill her duties under MCR 9.205(A). In
these circumstances, I cannot see how such behavior could indicate either good faith or
due diligence. 4
Respondent’s failure to fully consider her course of action and her decision to
enter patently inappropriate contempt orders reflect a lack of good faith and due
diligence, and her actions were clearly prejudicial to the administration of justice. I
would agree with the Commission that respondent committed judicial misconduct by
holding the children in contempt.
4
The majority contends that respondent acted with due diligence during the June 24,
2015 hearing because she “approached these contempt proceedings as addressing matters
of direct civil contempt.” But respondent initiated the contempt proceedings because she
believed that the children had failed to comply with her visitation orders. Under these
circumstances, the alleged contempt occurred in respondent’s jury room where the
visitation was to take place, not during the court’s sitting and not in respondent’s
presence. Respondent at most witnessed a portion of one child’s session with his father.
To the extent that the children refused to comply with respondent’s orders in the presence
of the court, they did so during the contempt proceedings initiated by respondent. The
magnitude of this error, in light of the amount of time that respondent had been
contemplating holding the children in contempt, demonstrates that respondent did not act
with “[t]he diligence reasonably expected from, and ordinarily exercised by, a person
who seeks to satisfy a legal requirement or to discharge an obligation.” Black’s Law
Dictionary (10th ed).
7
II. SANCTION
As suggested by the majority’s recitation of the facts, the divorce action
underlying this judicial misconduct proceeding was unusually complicated and
acrimonious. While these facts may render respondent’s obvious frustration with the
litigants and their children understandable, they do not obviate respondent’s duty to
diligently fulfill her judicial obligations and to conduct herself honorably and with
dignity as a representative of our judicial system. In assessing the appropriate sanction
for judicial misconduct, this Court strives to mete out judicial discipline in a consistent
and proportionate manner in order to “maintain the honor and integrity of the judiciary,
deter similar conduct, and further the administration of justice.” In re Hocking, 451 Mich
1, 24; 546 NW2d 234 (1996). Furthermore, our “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.’ ” In re Morrow, 496 Mich 291,
302; 854 NW2d 89 (2014), quoting In re Brown, 461 Mich 1291, 1292; 625 NW2d 744
(2000). “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.” In re Jenkins, 437
Mich 15, 28; 465 NW2d 317 (1991). I fear that the mere public censure favored by the
majority does not achieve these goals.
The majority opinion acknowledges that the Commission arrived at its
recommendation of a 30-day suspension and public censure after finding that several of
the factors set forth in Brown, 461 Mich 1291, militated in favor of a more serious
sanction. However, the majority focuses nearly exclusively on two Brown factors that it
8
believes weigh against a more serious sanction. Brown provides the following seven
factors to consider when fashioning a judicial sanction:
(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 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. [Id. at 1292-
1293.]
In this case, the Commission concluded that the bulk of the Brown factors weighed
in favor of a more severe sanction. Respondent’s misconduct occurred on the bench, was
prejudicial to both the actual administration of justice and the appearance of propriety,
and impeded the court’s ability to determine the best interests of the children and the best
course of action to resolve the underlying custody case. Although respondent’s
demeanor during the proceedings was a spontaneous reaction to her frustration with the
9
children, the Commission noted that respondent’s decision to hold the children in
contempt appeared to have been brewing for some time. Finally, the Commission noted
that while the misconduct was isolated, it was likely to reoccur in the future absent
corrective action. Moreover, although the misconduct did not involve a protected class of
citizenship, it “target[ed] children.” In some sense, then, the Commission concluded that
each of the Brown factors weighed in favor of a more serious sanction or was related to
some aggravating circumstance.
The majority claims to generally agree with the Commission’s assessment of the
Brown factors, but focuses its disciplinary analysis solely on the two Brown factors about
which it disagrees with the Commission. The majority concludes that the Commission’s
analysis of Factor 1—whether misconduct is part of a pattern or practice—improperly
focused on the possibility of future misconduct rather than on the fact that the misconduct
was undisputedly isolated. The majority also complains that the Commission’s analysis
of Factor 7—specifically, its conclusion that respondent “targeted” children—was
inappropriate because there was no indication that respondent treated the children
differently than she would have treated any other person who defied court orders. The
majority goes on to determine that because these two Brown factors actually weigh in
favor of a less severe sanction, respondent’s misconduct warrants only public censure.
I agree with the majority that Factors 1 and 7 do not weigh in favor of a more
severe sanction. However, I disagree with the majority regarding the effect that this
conclusion should have on our ultimate disciplinary determination. Focus on only two of
the factors ignores the fact that the remaining five Brown factors weigh in favor of a more
severe sanction. Furthermore, the concerns articulated by the Commission in its
10
discussion of Factors 1 and 7 represent aggravating factors highly relevant to our
disciplinary analysis. As noted by the Commission, respondent has not expressed any
remorse for her actions, nor has she even acknowledged that her demeanor and her
contempt orders were inappropriate. Given that one of the aims of judicial discipline is to
deter misconduct, we must keep a weather eye out for improper behavior that may be
repeated in the future, and we must make clear that such conduct is unacceptable. And
while there is no evidence that respondent targeted the children on the basis of their age,
their youthfulness does render respondent’s caustic language and hostile temperament
even more troubling than the judicial behavior addressed in cases like Post and Hocking,
in which the targets of judicial hostility were trained, adult attorneys. 5
Contrary to the majority’s conclusion, I believe that respondent’s misbehavior in
this case was more problematic than that in Post or Hocking and merits a more severe
sanction. As earlier suggested, the children cited for contempt in this case and the
attorneys in Post and Hocking were in very different positions in terms of knowledge of
courtroom etiquette, the law, and authority in a general sense. In Post, the respondent
repeatedly told the attorney to be quiet and sit down, responding to the attorney’s attempt
to enforce the defendant’s Sixth Amendment right to the effective assistance of counsel
with: “That’s right. And that’s not what he’s getting at the moment.” Post, 493 Mich at
986. In Hocking, the respondent was rude and abrupt with two attorneys and leveled a
single personal attack against one of them. Hocking, 451 Mich at 23. By contrast, in this
5
An attorney could reasonably expect to have some unpleasant interactions with a judge.
It appears that the children in this case had never appeared on the record before the June
24, 2015 hearing.
11
case respondent berated the children with personal attacks, questioning their intelligence,
calling them brainwashed, comparing them to cult members, and referring to them as
“mentally messed up.” While the attorney cited for contempt in Post was only held in
lockup for a few hours, the children in this case were told that they would be confined in
jail indefinitely, locked up in cells, separated from their mother and one another, and
would have to go to the bathroom in public. The children were ultimately left at
Children’s Village for more than two weeks. Furthermore, the respondent in Post
admitted wrongdoing and took responsibility for his misconduct, but respondent in this
case continues to attempt to justify her behavior. I agree with the Commission that a 30-
day suspension in addition to public censure would be appropriate.
III. CONCLUSION
Respondent’s conduct and its consequences were severe. She allowed her
frustration to result in the verbal abuse and confinement of three young children for
seventeen days. Respondent has continuously refused to recognize that this conduct
could be seen as improper, and instead she has shifted responsibility to the children—
individuals who were not parties to the case before her—and their attorneys for failing to
object to her contempt holdings. Respondent’s extreme misconduct and her inability to
recognize its problematic nature warrant a severe sanction, even in the absence of other
allegations of misconduct. I would impose the Commission’s recommended public
censure and 30-day suspension.
Richard H. Bernstein
12