IN RE CHRISTOPHER C BROWN
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Michigan Supreme Court
Lansing, Michigan 48909
_____________________________________________________________________________________________
C hief Justice
Justices
Maura D. Cor rigan
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
Opinion
____________________________________________________________________________________________________________________________
FILED MAY 30, 2001
In re HON. CHRISTOPHER BROWN (AFTER REMAND)
Judge of the Fiftieth District Court,
Pontiac, Michigan.
No. 111840
_________________________________
PER CURIAM
This judicial disciplinary matter is before this Court
after remand to the Judicial Tenure Commission (JTC) to
determine whether statements made by respondent following an
automobile accident resulted in judicial misconduct that was
clearly prejudicial to the administration of justice.
In In
re Brown, 461 Mich 1291 (2000), this Court set forth several
factors that were among the criteria to be used in evaluating
judicial discipline cases.
We then remanded the present
matter to the JTC for an application of the suggested factors
to the facts of this case.
The JTC, in a June 23, 2000
supplemental
recommendation,
decision
and
found
that
respondent was “attempting to use the prestige of [his] office
to
gain
a
personal
advantage”
and,
thus,
recommended
a
sanction of suspension from the discharge of all judicial and
administrative duties without pay for a period of fifteen
days.
Upon review, we hereby adopt the JTC’s recommended
sanction of suspension from the discharge of all judicial and
administrative duties without pay for a period of fifteen
days.
I
These proceedings arise out of statements made by 50th
District
Court
Judge
Christopher
C.
Brown,
respondent,
following an automobile accident involving respondent and
another driver.
The JTC filed a complaint and an evidentiary
hearing was held. Following the hearing, the master concluded
in a report that respondent did not abuse his office.
The
JTC’s examiner then filed written objections to the report
with the JTC.
On review, the JTC made the following findings
of fact:
(1) Respondent, at all times hereinafter mentioned, was
a Judge of the 50th District Court in the City of Pontiac,
County of Oakland, State of Michigan.
2
(2) Respondent was involved in an automobile accident
with Sue Lambouris on April 26, 1996.
(3) The Pontiac Police Department was notified of the
accident, and that officers Darryl Cosby and Craig Pesco
responded to the location of the accident.
(4) Respondent knew police officer Darryl Cosby.
(5)
Respondent
told
Lambouris was speeding.
the
police
officers
that
Sue
Specifically, Respondent stated that
Mrs. Lambouris was “doing 85 miles per hour.”
(6) Respondent requested that Mrs. Lambouris’ name be
“run on L.E.I.N. [Law Enforcement Information Network] and
ticketed.”
On the basis of its findings of fact, which we adopt for
purposes of this per curiam opinion, the JTC determined that
respondent was “attempting to use the prestige of [his] office
to gain a personal advantage” and that such conduct was
“clearly prejudicial” to the administration of justice in
violation of the Code of Judicial Conduct, Canons 1, 2A, 2B
and 2C. The JTC then recommended that respondent be suspended
from the discharge of all judicial and administrative duties
without pay for fifteen days.
Upon review of the JTC’s decision and recommendation,
this
Court
remanded
this
matter
to
the
JTC
for
the
“articulation of standards of judicial discipline, and for the
3
application of those standards to the instant case.”
Brown, supra.
In re
As we stated in that case, the development of
standards by the JTC will better enable the JTC to respond to
“equivalent cases in an equivalent manner.”
Furthermore, the
application of standards by the JTC will allow this Court to
more
meaningfully
recommendations.
review
the
JTC’s
disciplinary
In Brown, supra, we articulated several
factors that were among the criteria to be used in evaluating
judicial discipline cases.
The recommended factors are as
follows:
(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 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
4
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.
[461 Mich 1292-1293.]
After
remand,
recommendation.
the
JTC
filed
a
supplemental
In this recommendation, the JTC determined
that respondent was “attempting to use the prestige of [his]
office to gain a personal advantage.”
Consequently, the JTC
again recommended that this Court suspend respondent from the
discharge of all judicial and administrative duties for a
period of fifteen days.
The JTC, however, did not expressly
apply the recommended factors as set forth in In re Brown for
the
reason
that
its
membership
had
original recommendation and the remand.
changed
between
the
Therefore, before we
“adopt, reject, or modify” the JTC’s recommended discipline,
we will engage in a brief analysis of the Brown factors as
applied to Judge Brown himself.
II
Upon review, we conclude that factors 1, 2, 4, and 5 are
relevant to this case. In particular, factors 1 and 4 support
the JTC’s recommended discipline of respondent.
Pursuant to
factor 1, we find that respondent’s conduct was part of a
pattern or practice of misconduct rather than an isolated
instance
of
misconduct.
As
the
JTC
stated
in
its
recommendation for discipline, respondent had been admonished
5
by the JTC on four prior occasions for acts of misconduct.1
Additionally,
pursuant
to
factor
4,
respondent’s
implicated the appearance of impropriety.
conduct
The record shows
that respondent knew one of the investigating officers who
arrived at the scene.
with
respondent’s
This existing relationship, coupled
attempted
direction
to
the
officer
concerning the type of investigation that he should conduct
with regard to the other driver, gave rise to an appearance of
impropriety and had the potential to erode the public’s
confidence in the judiciary.2
1
Even if the dissent is correct that respondent’s
behavior is not properly characterized as part of a “pattern
or practice” of misconduct, there is nothing at all
inappropriate in the JTC taking into consideration in its
proportionality decisions altogether unrelated instances of
misconduct.
2
We do not disagree with the dissent’s characterization
of the rules of conduct with regard to “judge-victims.” Post
at 7. However, unlike the dissent, we believe that
respondent’s conduct went well beyond a mere “report[ing] the
underlying facts involved in the crime.” Post at 4. Rather,
in this case, the respondent directed the officer to take two
very specific actions: (a) run Ms. Lambouris’ name through the
LEIN system, and (b) issue Ms. Lambouris a ticket. Though a
fine line cannot always be drawn in these matters, the
respondent’s direction to the officer, in our judgment, was
not in the nature of a mere call to investigation, it was not
simply a spontaneous expression of anger or pique, and it was
more than a generalized call to the officer to do something
about an unfortunate situation.
Rather, when made to an
officer who was aware of respondent’s judicial status, such
direction, in our opinion, invoked respondent’s judicial
status in an inappropriate manner.
6
On the other hand, factors 2 and 5 mitigate against
increasing respondent’s sanction. Pursuant to factor 2, it is
important to highlight that the misconduct at issue arose out
of statements made pursuant to an automobile accident.
The
misconduct did not occur while respondent was on the bench.
Additionally, pursuant to factor 5, the remarks made by
respondent appear to have been made spontaneously and under at
least some stress, with respondent having just been involved
in an automobile accident.
When the police officers arrived,
respondent told the officers that Mrs. Lambouris was speeding
at eighty-five miles an hour. With regard to this remark, the
JTC
found
that
statement.”
“[r]espondent
knowingly
made
a
false
However, pursuant to the circumstances of this
case, this Court concludes that this remark was merely a
speculation concerning the rate of speed of the other driver.
Concerning respondent’s request that the officers search Mrs.
Lambouris’ name in the LEIN system and ticket her, we reach
the
same
conclusion.
spontaneous
reaction
automobile accident.
Respondent’s
in
the
remark
immediate
was
merely
aftermath
of
a
an
After weighing the above factors, and
applying them to the circumstances of this case, we believe
that respondent’s past disciplinary indiscretions, as well as
the appearance of impropriety that resulted from respondent’s
statements to the police officers, one of whom he knew,
7
regarding the type of investigation that the officers should
engage in was sufficient misconduct to warrant the adoption of
the JTC’s recommendation of discipline.
Thus, we hold that
respondent be suspended from the discharge of all judicial and
administrative duties without pay for a period of fifteen
days.
Pursuant to MCR 7.317(C)(3), the Clerk is directed to
issue the judgment order forthwith.
CAVANAGH ,
WEAVER , KELLY ,
TAYLOR , YOUNG , and
concurred.
8
MARKMAN , JJ.,
S T A T E
O F
M I C H I G A N
SUPREME COURT
In re HON. CHRISTOPHER BROWN (AFTER REMAND)
Judge of the Fiftieth District Court,
Pontiac, Michigan.
_________________________________
No. 111840
CORRIGAN, C.J. (dissenting).
I respectfully dissent from the majority’s decision to
suspend respondent for fifteen days for certain statements he
made in the aftermath of an automobile accident. I would hold
that respondent’s actions, while certainly not exemplary, did
not constitute judicial misconduct because his conduct was not
clearly prejudicial to the administration of justice.
I
These proceedings arise from a car accident involving
respondent and another driver in Pontiac.
Pontiac police
officers responded to a call for assistance and investigated.
Respondent told an officer with whom he was acquainted that
the other driver had been traveling at eighty-five miles an
hour.
He then requested that the officer run the other
driver’s name on the Law Enforcement Information Network
(LEIN), and urged the officer to ticket the other driver. The
officer did not, however, issue a ticket.
The owner of the
other car later brought an action in 50th District Court to
recover his insurance deductible.
The Judicial Tenure Commission (JTC) complaint alleged
misconduct
arising
from
(1)
respondent’s
conduct
at
the
accident scene, (2) respondent’s transfer of the district
court action to another judge, and (3) respondent’s conduct
during
the
hearing
on
the
district
court
lawsuit.
The
complaint also alleged misconduct arising from respondent’s
conduct during an unrelated criminal case and his unrelated
actions in presiding over uncontested and default matters
involving his court officer.
At the conclusion of an evidentiary hearing, the master
determined that the examiner failed to establish judicial
impropriety and that respondent did not violate the code of
judicial conduct, court rules, or the constitution.
The
master found that respondent “informed the officers of [the
other driver’s] excessive speed (the testimony varies between
85 and 50 miles per hour) and . . . stated his desire to have
[the other driver] run on a lien [sic] machine and ticketed
. . . .”
The master further found that reason existed to
believe that the other driver had been speeding, although the
evidence did not support respondent’s claim that the car had
been traveling at eighty-five miles an hour.
The master
characterized respondent’s statement that the other car was
2
traveling “85 miles per hour” as a “hyperbolic exaggeration
and
not
a
deliberate
falsification,
similar
perhaps
to
claiming that ‘she was going like a bat out of Hell.’”
The
master
the
rejected
all
the
remaining
allegations
in
complaint.
The JTC affirmed the master’s finding that respondent
made the statements at the accident scene, but rejected the
master’s
conclusion
that
prestige of his office.
respondent
had
not
abused
the
The JTC found that respondent’s
conduct violated Canons 1 and 2(A)-(C) of the Code of Judicial
Conduct.3
It found that respondent’s conduct constituted
1
Canon 1 provides in part that
participate in establishing, maintaining,
should personally observe, high standards
the integrity and independence of the
preserved.”
“[a] judge should
and enforcing, and
of conduct so that
judiciary may be
Canon 2(A)-(C) provides:
A.
Public confidence in the judiciary is
eroded by irresponsible or improper conduct by
judges.
A judge must avoid all impropriety and
appearance of impropriety. A judge must expect to
be the subject of constant public scrutiny.
A
judge must therefore accept restrictions on conduct
that might be viewed as burdensome by the ordinary
citizen and should do so freely and willingly.
B.
A judge should respect and observe the
law.
At all times, the conduct and manner of a
judge should promote public confidence in the
integrity and impartiality of the judiciary.
Without regard to a person’s race, gender, or other
protected personal characteristic, a judge should
(continued...)
3
misconduct
under
MCR
9.205(C)(4)
because
it
was
clearly
prejudicial to the administration of justice. The JTC adopted
the master’s findings and conclusions regarding the other
allegations of misconduct.
It recommended that this Court
suspend respondent for fifteen days.
II
In this case, the JTC recommends discipline solely on the
basis of respondent’s conduct at the accident scene.
Thus,
while the complaint certainly alleged other misconduct, I have
confined my review solely to judicial misconduct arising from
respondent’s statements to the investigating officers because
this Court may discipline a judge only “[o]n recommendation of
the judicial tenure commission.” Const 1963, art 6, § 30; see
In re Mikesell, 396 Mich 517, 524-527; 243 NW2d 86 (1976).
I
conclude that the JTC failed to prove by a preponderance of
the evidence4 that respondent attempted to use the prestige of
(...continued)
treat every
respect.
person
fairly,
with
courtesy
and
C. A judge should not allow family, social,
or other relationships to influence judicial
conduct or judgment. A judge should not use the
prestige of office to advance personal business
interests or those of others. A judge should not
appear as a witness in a court proceeding unless
subpoenaed.
2
In re Loyd, 424 Mich 514, 521; 384 NW2d 9 (1986).
4
his office to gain a personal advantage and that his conduct
was clearly prejudicial to the administration of justice.
In
my
view,
the
determination
whether
respondent’s
conduct was clearly prejudicial to the administration of
justice hinges on respondent’s intent in making statements to
the officers at the accident scene.
The master found that
respondent was “shaken, excited and emotional” after the
accident.
The
master
further
characterized
respondent’s
statement regarding the speed of the other driver’s car as
“hyperbole.”
I
would
defer
to
those
findings
because,
although this Court reviews the record de novo, In re Loyd,
424 Mich 514, 521; 384 NW2d 9 (1986), we accord deference to
the
master’s
ability
to
observe
evaluate their credibility.
master’s
credibility
witnesses’
Id. at 535.
finding
that
demeanor
and
I thus defer to the
respondent
did
not
intentionally lie to the officer. I am frankly puzzled by the
JTC majority’s finding of an intentional falsehood. They gave
no reason for concluding that the master erred in his contrary
credibility determination.5
3
Under MCR 9.221(B), the JTC must make written findings
of fact and conclusions of law along with its recommendations
for action, but may adopt the master’s findings, in whole or
in part, by reference.
In light of the master’s superior
position for purposes of evaluating the credibility of
witnesses, however, it is incumbent on the JTC to explain its
reasons for rejecting a master’s finding that turns on such a
determination.
Moreover, absent a hearing at which the
(continued...)
5
I further agree with the majority’s characterization of
respondent’s statement at the accident scene as a “spontaneous
speculation” induced by “stress” in the immediate aftermath of
an automobile accident.
I accept and see no clear error in
the finding of the Master that Judge Brown’s statement was
hyperbole.
Further, I accept the master’s finding that Judge
Brown had no insidious motive.
In light of this conclusion, I would not hold that Judge
Brown
knowingly
and
intentionally
attempted
to
use
the
prestige of his office to gain a personal advantage. I cannot
say with any degree of certainty that he attempted to misuse
the prestige of his office to gain a personal advantage.
His
conduct seems to me equally likely the spontaneous reaction of
a shaken accident victim.
The
majority
rule
is
that
a
judge-victim
who
is
acquainted with the police officers who are conducting an
investigation may provide a report about the relevant facts,
but cannot recommend any action on the basis of those facts.
Thus, a judge who is a victim of an armed robbery may report
the underlying facts involved in the crime, but may not say,
(...continued)
witnesses actually testify before the JTC, MCR 9.219, I
question whether this Court should reject the master’s finding
in favor of a contrary finding by the JTC.
6
“There’s the robber—arrest that man.”6
The direction to
arrest may demonstrate a misuse of office to advance personal
interests in recovering the judge’s stolen property.
Next, I cannot join the conclusion that Judge Brown’s
statements at the accident scene were part of a “pattern and
practice” of misconduct on the basis of prior JTC admonitions
against Judge Brown.
Judge Brown’s excited utterances at the
accident scene were unique, isolated events, different in kind
from the events and statements that formed the basis of the
prior JTC admonitions.
I cannot join the conclusion that
Judge Brown’s conduct at the accident scene demonstrates a
pattern and practice of misconduct.
I would reject the JTC recommendation in this case
because respondent’s conduct at the accident scene was not
clearly prejudicial to the administration of justice.
record
does
not
reflect
that
the
other
driver
The
heard
respondent’s remarks. Nor does it establish that respondent’s
statements
ticket.
influenced
the
officer’s
decision
to
issue
a
That a motorist whose vehicle has been struck in an
accident would request in the immediate aftermath that the
responding officer ticket the driver of the other car is not
unusual.
That a judge, still shaken from the accident, would
6
While an armed robbery is a crime, not an accident,
both are startling events likely to trigger in the victim
spontaneous, excited utterances.
7
make
a
similar
request
administration of justice.
is
not
prejudicial
to
the
Moreover, respondent’s comment
requesting a LEIN check does not, under the circumstances of
this case, elevate respondent’s conduct to a level that
clearly prejudices the administration of justice.
The master
found that respondent acted without an insidious motive.
Accordingly, I would decline to impose discipline on the basis
of respondent’s conduct at the scene of the accident.7
7
Assuming
that
respondent’s
actions
constituted
misconduct, the misconduct would not warrant a suspension. I
also part company from my colleagues in their application of
the governing principles set out in our prior order to these
facts:
While we do not purport to substitute our
judgment for that of the JTC in this regard, some
of these standards are obvious.
For example,
everything else being equal:
(1) misconduct that is part of a pattern or
practice is more serious than an isolated instance
of misconduct;
(2) misconduct on the bench is usual 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
(continued...)
8
III
I
conclude
prejudicial
therefore
respondent.
to
that
the
reject
respondent’s
administration
the
JTC
were
of
not
justice.
recommendation
to
clearly
I
would
discipline
Accordingly, I dissent.
7
(...continued)
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.
[461 Mich 1294-1295.]
Application of these factors to this case suggests the
lightest form of discipline for those members of this Court
who conclude that respondent was engaged in judicial
misconduct—a censure.
Respondent’s acts were spontaneous,
isolated, occurred off the bench, and, at most, gave the
appearance of impropriety.
Respondent’s conduct did not
implicate the actual administration of justice, and did not
affect the ability of the justice system to discover the truth
in a case. Moreover, the alleged misconduct does not involve
the unequal application of justice. Under the circumstances
of this case, a suspension is not appropriate.
9
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