in Re Hon Dennis M Wiley

Order Michigan Supreme Court
Lansing, Michigan
March 26, 2014 Robert P. Young, Jr.,
Chief Justice
Michael F. Cavanagh
Stephen J. Markman
148512 Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano,
In re: Justices
HONORABLE DENNIS M. WILEY SC: 148512
Berrien County District Court RFI No. 2013-20302
BEFORE THE JUDICAL TENURE COMMISSION
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On order of the Court, the Judicial Tenure Commission has issued a Decision and
Recommendation for Order of Discipline, and the Honorable Dennis M. Wiley has
consented to the Commission’s findings of fact, conclusions of law, and recommendation
of a public censure.
As we conduct our de novo review of this matter, we are mindful of the standards
set forth in In re Brown, 461 Mich 1291, 1292-1293 (2000):
[E]verything else being equal:
(1) misconduct that is part of a pattern or practice is more serious than
an isolated instance of misconduct;
(2) misconduct on the bench is usually more serious than the same
misconduct off the bench;
(3) misconduct that is prejudicial to the actual administration of justice
is more serious than misconduct that is prejudicial only to the appearance of
propriety;
(4) misconduct that does not implicate the actual administration of
justice, or its appearance of impropriety, is less serious than misconduct
that does;
(5) misconduct that occurs spontaneously is less serious than
misconduct that is premeditated or deliberated;
(6) misconduct that undermines the ability of the justice system to
discover the truth of what occurred in a legal controversy, or to reach the
most just 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.
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In this case those standards are being applied to the following findings of fact of
the Judicial Tenure Commission, which adopted the admissions contained in the
settlement agreement. We adopt them as our own.
1. Prior to December 4, 2012, LaRue Ford communicated with staff of
the Berrien County Trial Court regarding outstanding fines that she
owed which had resulted in the suspension of her Michigan driver’s
license.
2. Pursuant to direction by the court staff, Ms. Ford paid the balance
that was found by the staff to be owed.
3. On December 4, 2012, Ms. Ford went to the Niles Division of the
Berrien County Trial Court to investigate why a “hold” remained on
her driver’s license.
4. The staff in the clerk’s office reviewed Ms. Ford’s case history and
discovered that a $45 reinstatement fee in Case No. 2004-403400-ST
still had not been paid.
5. Ms. Ford became upset, as she believed that the court staff in St.
Joseph had previously advised her that all fees had been paid and the
hold on her driver’s license should have been lifted. She was also
upset by the possible imposition of a credit card service fee.
6. Several Niles Division court clerks, if called as witnesses, would
testify that Ms. Ford used the term “fuckers” or “motherfuckers” on
one or two occasions when dealing with them.
7. None of the clerks ever felt threatened, or that they were in danger,
when dealing with Ms. Ford.
8. Ms. Ford never interfered with the clerks’ ability to perform their
duties while she was in the courthouse. However, clerks would
testify that she was disruptive, and they had to pay extra attention to
her to make sure she did not get out of control.
9. On December 4, 2012, Respondent [5th District Court Judge Dennis
M. Wiley] was presiding in the Niles Division of the Berrien County
Trial Court.
10. On that day, Respondent was in the non-public office area of the
court, and overheard court clerk Katie Pugh tell court office manager
Carol Brohman that Ms. Ford had called them “fuckers’ or
“motherfuckers.” If called as a witness, Ms. Pugh would testify that
Ms. Ford had said this “after all the help we gave her.”
11. The conversation between Ms. Pugh and Ms. Brohman did not
initially involve Respondent.
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12. When Respondent overheard the discussion, Respondent approached
the individuals and asked Ms. Pugh to describe the events to
Respondent.
13. When Ms. Pugh recounted the events, she reported that Ms. Ford
had referred to the clerk staff as “fuckers” and/or “motherfuckers.”
14. Ms. Pugh also reported that Ms. Ford was expected to return to the
courthouse to pay a fee to have the hold on her license removed.
15. Ms. Pugh did not tell Respondent that she or any other court staff
had felt threatened by Ms. Ford during the incident, or that Ms. Ford
had in any way interfered with the regular operation of the court
during the incident. If called as a witness, Respondent would testify
that the clerks appeared to him to be upset and distracted from their
duties.
16. Respondent directed that Ms. Ford be brought before him in his
courtroom when she returned to the courthouse.
17. Respondent did not discuss the preparation of a petition for order to
show cause/bench warrant regarding Ms. Ford’s conduct with any
court employee at that time.
18. When Ms. Ford returned on December 4, 2012, and after she paid
the outstanding fee, Respondent’s court bailiff brought her to
Respondent’s courtroom, in accordance with Respondent’s directive.
19. At that time, the petition had not yet been prepared.
20. Respondent arraigned Ms. Ford for contempt of court outside of his
presence, based only on the unsworn conversation he had heard
between Ms. Pugh and Ms. Brohman, his own observations, and his
conversation with Ms. Pugh.
21. Respondent did not disclose that he had had the previously
mentioned conversation with Ms. Pugh.
22. Respondent did not disqualify himself, or raise the issue of his
possible disqualification, based on his receipt of the information
communicated in the previously mentioned conversation with Ms.
Pugh.
23. Respondent set December 18, 2012 for a hearing on the contempt
charge.
24. Respondent set a bond of $5,000/10%.
25. Ms. Ford did not post bond and spent the night in jail.
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26. Ms. Ford posted $500 bond on December 5, 2012 and was released
from custody.
27. On December 18, 2012, Ms. Ford appeared for the contempt
hearing.
28. At that proceeding, she was represented by attorney Shannon Sible,
who was assigned counsel.
29. Mr. Sible requested that the contempt hearing be adjourned, as he
wanted additional time to review the law applicable to the matter.
30. Respondent adjourned the matter and increased Ms. Ford’s bond
from $5,000/10% to $5,000/cash or surety, after her counsel
requested that she be allowed to travel to Arizona and go to work as
a long haul truck driver. This was the first time that Respondent
heard that Ms. Ford lived in Arizona.
31. The court returned the $500.00 Ms. Ford had posted with the court.
The $500.00 check was maintained with Ms. Ford’s belongings in
the jail until her release on December 28, 2012.
32. Ms. Ford was represented at all times and had access to a list of
bondsmen.
33. John Targowski, a cooperating attorney with the American Civil
Liberties Union, filed an appearance on behalf of Ms. Ford on
December 28, 2012.
34. Mr. Targowski filed an emergency application for leave to appeal
and a petition for review of her bond in the Berrien County Trial
Court, Circuit Division that same day.
35. The appeal was assigned to Judge Charles LaSata, who was not
available that day.
36. The case was referred to Chief Judge Alfred Butzbaugh, who
granted leave to appeal and revised the bond to the original
$5,000/10%. No transcript or video recording exists of any
proceeding before Judge Butzbaugh.
37. Ms. Ford was released on December 28, 2012.
38. On December 28, 2012, Susan Akens, an Enforcement Officer in the
Berrien County Trial Court collections office, sent Respondent an e-
mail regarding her contact with Ms. Ford on several dates during
2012 which reflected a negative impression, and attached notes that
she maintained regarding those incidents.
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39. Ms. Ford, through counsel, filed a motion to disqualify Respondent
and a motion to stay proceedings in the Berrien County District
Court on January 2, 2013.
40. On January 3, 2013, Respondent sent a reply e-mail to Ms. Akens,
instructing her to send her notes to the Berrien County Prosecuting
Attorney’s office, as the notes could “show a pattern of
contemptuous behavior” and advising her that the prosecuting
attorney might want her to testify about Ms. Ford’s conduct.
41. Ms. Akens sent the notes to the prosecuting attorney via e-mail, and
copied Respondent on the message.
42. The Berrien County Prosecutor declined to prosecute the contempt
matter.
43. On or about January 3, 2013, Respondent instructed Ms. Brohman to
prepare a sworn statement regarding her contact with Ms. Ford on
December 4, 2012, which Ms. Brohman did.
44. Respondent also instructed Ms. Brohman to have all court clerks
who had had any interaction with Ms. Ford on December 4, 2012
prepare sworn statements about their contact with her.
45. Court clerks Katie Pugh, Sarah Belter, Julie Lear, and Toni Hall
prepared sworn statements pursuant to that directive.
46. Respondent presided over a hearing on the motion for
disqualification on January 8, 2013.
47. At that hearing, Respondent did not disclose his communication with
Ms. Brohman regarding his request for Ms. Brohman and the other
court clerks to prepare sworn statements regarding their contact with
Ms. Ford on December 4, 2012.
48. Respondent also did not disclose his communication with Ms.
Akens.
49. Ms. Ford, through counsel, filed a motion to dismiss the contempt
charge in the Niles Division of the Berrien County District Court on
January 7, 2013.
50. Respondent denied Ms. Ford’s motion for disqualification at the
January 8, 2013, hearing, and referred it to the Berrien County Trial
Court Chief Judge for review.
51. Respondent suspended the remaining proceedings (including
consideration of the motion for stay, motion to dismiss, and the
contempt hearing) to allow for the Chief Judge’s review of the
disqualification issue.
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52. On January 11, 2013, Judge LaSata issued a decision on Ms. Ford’s
appeal and motion to dismiss, dismissing the contempt charge
without prejudice.
The standards set forth in Brown are also being applied to the following Judicial
Tenure Commission legal conclusions, to which respondent stipulated and which we
adopt as our own:
A. Respondent violated the Michigan Code of Judicial Conduct, Canon
3A(1), in that he did not faithfully execute the law and maintain his
professional competence when he commenced indirect contempt
proceedings based only on unsworn conversations with his staff; and
B. Respondent violated the Michigan Code of Judicial Conduct, Canon
3A(4), in that he received communications regarding Ms. Ford’s
conduct from court staff, after the commencement of proceedings,
and directed staff to provide the information to the prosecuting
attorney and directed staff to prepare affidavits concerning the
events of December 4, 2012 and did not advise Ms. Ford’s counsel
of these communications.
The Commission also concludes, and we agree, that Respondent’s conduct constitutes:
C. Misconduct in office, as defined by the Michigan Constitution of
1963, as amended, Article 6, § 30, and MCR 9.105;
D. Conduct clearly prejudicial to the administration of justice, as
defined by Const 1963, art 6, § 30, and MCR 9.105;
E. Failure to establish, maintain, enforce, and personally observe high
standards of conduct so that the integrity and independence of the
judiciary may be preserved, contrary to the Code of Judicial
Conduct, Canon 1;
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F. Irresponsible or improper conduct that erodes public confidence in
the judiciary, in violation of the Code of Judicial Conduct, Canon
2A;
G. Conduct involving impropriety and the appearance of impropriety, in
violation of the Code of Judicial Conduct, Canon 2A;
H. Failure to conduct oneself at all times in a manner that would
enhance the public’s confidence in the integrity and impartiality of
the judiciary, contrary to the Code of Judicial Conduct, Canon 2B;
and
I. Conduct that exposes the legal profession or the courts to obloquy,
contempt, censure, or reproach, in violation of MCR 9.104(A)(2).
After review of the Judicial Tenure Commission’s decision and recommendation,
the settlement agreement, the standards set forth in Brown, and the above findings and
conclusions, we ORDER that the Honorable Dennis M. Wiley be publicly censured. This
order stands as our public censure.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
March 26, 2014
s0319
Clerk