IN RE HON CYNTHIA GRAY HATHAWAY
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Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice
Maura D. Cor rigan
Opinion
Justices
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED JULY 10, 2001
IN RE HONORABLE CYNTHIA GRAY HATHAWAY,
Judge of the Third Circuit Court,
Detroit, Michigan.
No. 112495
______________________________________/
PER CURIAM
The Judicial Tenure Commission recommends that we suspend
Wayne Circuit Judge Cynthia Gray Hathaway for thirty days,
without pay, for misconduct in the performance of her judicial
office.
Because
misconduct
at
we
issue
conclude
that
warrants
the
greater
severity
of
discipline
the
than
recommended, pursuant to Const 1963, art 6, § 30(2) and MCR
9.225, we modify the recommendation of the commission and
order that Judge Hathaway be suspended without pay for a
period of six months.
I
Facts
The recommendation of the Judicial Tenure Commission is
based on its findings of fact.
In turn, those findings are
adopted from findings made by the master.1
Specifically, the
commission found that Judge Hathaway acted improperly in her
handling of two cases, and in an overall lack of industry that
was exemplified by a third case.2
1
MCR 9.210, 9.215.
2
The master further found that Judge Hathaway had
committed judicial misconduct in her dispositive rulings in
several cases that are not discussed in this opinion. The
commission rejected those findings, explaining:
Based on the record before us, the decision
A
The first case is a drug prosecution, People v Spearman,
in which Judge Hathaway conducted an arraignment at a Detroit
police precinct.
With regard to this case, the commission
adopted these findings of the master:
Late in the afternoon of May 6, 1997, Attorney
Otis Culpepper, criminal lawyer, called the
Respondent at her home as she was arriving from
work.
He advised that his client, Bruce John
Spearman[,] had been arrested by the Detroit Police
Department on a marijuana charge. His client was
on bond from federal district court on a drug
charge. Bond was $30,000 cash and required that he
wear a tether.
He further requested that
Respondent come to the 7th District Precinct office
and arraign the defendant so that he could be
released
and
abide
by
the
federal
release
restriction to be at his home by 7:30 in the
evening. Police Lt. Gary D. Hendrix and Attorney
Otis Culpepper both testified that Respondent knew
that there were additional drug charges, including
cocaine and heroin, before the arraignment.
Notwithstanding that, the arraignment took place on
the 5th floor of the police precinct because there
was an altercation in the lobby of the 1st floor.
At the time of the arraignment, Respondent had no
documentary evidence of the charges and arraigned
the defendant on “a warrant for marijuana” only.
At the time, however, Respondent had been informed
by Lt. Gary D. Hendrix of the fact there was a
warrant for cocaine and heroin.
This was not
mentioned in the arraignment.
Respondent fixed
bond at $10,000, 10%.
Bond was furnished by
Attorney Culpepper and Defendant Spearman was
released from custody and ordered to report the
following day to fix a date for his preliminary
examination.
Defendant Spearman absconded on bond and was
not arrested until January 21, 1998, in St. Louis,
Mo., and returned to this jurisdiction.
There was testimony that the ususal procedure
on an arrest of this type was to detain the
defendant and have him arraigned the following
morning before a circuit judge or magistrate. At
that time, the police record and other information
about the defendant and the crime would be
available to have at the arraignment. Respondent
also knew that Christine A. Kowal, Assistant
Prosecuting Attorney, was on her way to attend the
arraignment and also knew that Sgt. Dwane Blackmon
was on his way with a copy of the defendant’s
police record.
Notwithstanding this, Respondent
decided to go ahead with the arraignment because
she had “waited long enough.” She said that she
was aware of the federal charge and bond and felt
that a larger bond was not required under these
circumstances.
Both Lt. Hendrix and Assistant
Prosecutor Kowal advised that they had never
making by the judge in these specific cases is not
a matter for a determination of judicial misconduct
by the JTC. It is not the responsibility of the
JTC to function as an appellate court nor can
erroneous decisions by a judge made in good faith
and with diligence be grounds for judicial
misconduct. MCR 9.203(B).
2
experienced an arraignment such as this before a
circuit judge in the police precinct.
Other
attorneys and police officers testified that they
never knew of such a proceeding and it was against
all accepted procedures and court rules.
On the basis of these findings, the commission reached
the following conclusion:
The arraignment conducted by the Respondent at
the 7th Precinct headquarters in People v Spearman
was inappropriate in that it was contrary to all
practice and procedure under court rules and
contrary to the practice and custom in Wayne
County.
It was not conducted in court during
normal business hours and was conducted without a
prosecutor present.
A questionable bond was
established under the circumstances considering the
crimes alleged.
The entire procedure gave the
appearance of impropriety, contrary to Canons 1, 2,
and 3 of the Code of Judicial Conduct and MCR
9.205(A) and (C)(4).
B
The second case on which the commission’s recommendation
for discipline is based is People v Crosse.
With regard to
Crosse, the commission adopted the following findings:
Defendant Crosse, a middle-aged man who had
retired to the Upper Peninsula, was charged with
CSC-1 and CSC-2 by a teen-age girl who was a former
neighbor.
It was agreed between defendant’s
counsel and Respondent that the cases against
defendant in Macomb County would be tried first.
He was acquitted of the Macomb County charges and
Respondent attempted to induce Defendant Crosse to
waive a jury so that the case could be expedited.
Defendant Crosse, however, insisted upon a jury
trial and Respondent threatened to put him in jail
if he did not waive the jury.
At approximately 11:00 a.m., April 28, 1997,
when the case had not been called, defendant and
his attorney left the courtroom, notifying the
prosecutor that they were stepping out for a
“cigarette” and would be available when the case
was called. Shortly thereafter the case was called
and when the defendant and his attorney were not
immediately in the courtroom and ready to proceed,
Respondent ordered a habeas issued for the arrest
of both the attorney and defendant.
Within a few minutes, defendant appeared in
the courtroom and Respondent had him arrested and
detained in a restricted area of the courtroom.
When defendant’s counsel returned, he was released.
The trial did not start on that day, but on the
following day, April 29, a jury was sworn and,
again, the matter was adjourned until April 30,
1997, at 9:00 a.m. It was then adjourned to May 8,
1997, and continued on May 12, 1997.
Defendant’s attorney then filed a motion for a
speedy trial to be heard on May 8, 1997.
Respondent showed her anger at the hearing of this
motion,
and
accused
defendant’s
counsel
of
“dishonesty” and cut him off from placing matters
on the record. Her anger was apparent to all in
the courtroom, and the matter appeared to be
delayed solely because of defendant’s resistance to
3
waive a jury.
This was obviously prejudicial conduct on the
Bench, which was apparent to all who were in the
courtroom.
With respect to Crosse, the commission reached this
conclusion:
Respondent’s conduct in the case of People v
Crosse, wherein Respondent threatened to put
defendant in jail if he did not waive his
constitutional right to a jury trial, as well as
questionable adjournments in view of defendant’s
resistance to waive a jury, constituted a failure
to properly perform Respondent’s judicial duties,
as
well
as
conduct
prejudicial
to
the
administration of justice, contrary to Canons 1, 2
and 3 of the Code of Judicial Conduct and MCR
9.205(A) and (C)(4).
C
The third basis for the commission’s recommendation of
discipline is a problem noted in connection with Crosse---a
remarkable pattern of adjourning cases and failing to attend
in timely fashion to the business of the court.
An example is
the handling of a case called People v Ketchings.
Here, the
commission adopted the following findings of the master:
Defendant
Ketchings
was
one
of
four
co-defendants accused in a shooting death of a
9-year old girl. Separate trials were set for the
four defendants. Respondent tried the first three,
who were convicted and given extended prison
sentences.
The Ketchings matter was finally set
for trial for December 9, 1996. The attorneys were
ready for trial, efforts were made to negotiate a
plea which were unsuccessful, and Respondent
adjourned the trial until January 30, 1997. Both
the attorneys were ready to proceed on that date.
The matter was adjourned because Respondent said
“She did not feel like hearing it” on that date and
later recused herself. The attorneys then went to
Chief Judge Michael Sapala, who attempted to induce
the Respondent to try the matter but was
unsuccessful. When the attorneys returned to the
courtroom, Respondent recused herself on the basis
that she could no longer be impartial because she
had tried the other three defendants.
Both
attorneys tried to persuade her to proceed with the
trial since she would not be the trier of the facts
and would only have to make rulings upon the
evidence. Respondent refused to try it.
The case was thereafter assigned to Judge
Harvey Tennen, who because of the substantial
delay, was compelled to release Defendant Ketchings
pending trial. There had been no evidence that she
was going to recuse herself or had even thought
about it when she reset the case on December 9,
1996, to be tried on January 30, 1997, so another
trial date was set.
Some of the problems with scheduling and
finding that the case was adjourned were vividly
set forth by Lisa Lindsey, Special Assignment,
Assistant Prosecuting Attorney in the Ketchings
4
case.
“Well, the adjournments on the Ketchings case,
you have to take into combination with the other
codefendants. All the witnesses were the same on
each case, and as it relates to having witnesses
who are cooperative, having witnesses who are
available, it really impacted on the witnesses
because the witnesses would come down.
Even the
police witnesses they would come down. They would
be there and nothing---and it wouldn’t go. And the
witnesses---I know specifically in the civilian
witnesses, we had a lot of trouble with the
civilian witnesses. We had to get bench warrants
for the civilian witnesses in order to get them in.
“At some points, I was literally begging the
witnesses to show up for the next hearing.
The
witnesses would curse me out, and it just---and
then, you know, they would just---they would
cuss---curse me out. I mean, you know, they’d be
very profane, very upset.
They’d complain that
they were taking off from work, not getting paid.
The victim’s mom, she was always very, very upset.
“And then you would have---when the witnesses
would come down, every time the witnesses would be
there, the defendant’s family and friends would be
there, and there would always be a situation where
in the hallways you would worry about whether a
fight was going to break out between the victim’s
family and the defendant’s friends and family.
They’d be out there wolfing [sic].
When I say
wolfing, it’s a slang term, you know, for talking
back and forth at each other and things of that
nature. So it was difficult.”
These are clear violations of the statute and
Canons of judicial conduct and prejudicial to the
administration of justice.
In addition to the facts pertinent to Ketchings, the
master made additional findings regarding Judge Hathaway’s
handling of her docket and her apparent pattern of absence.
In this respect, the master relied on a report submitted in
1996 by Susan B. Boynton of the State Court Administrative
Office.
The contents of this report, which Ms. Boynton
confirmed in her testimony at the hearing, included this:
Examination of the daily court sheets in the
Systems Department at Recorder’s Court presents
another possible theory for the increase in
adjournments. For many days during the summer, all
proceedings
were
adjourned
and
the
judge’s
signature was stamped at the bottom of the daily
court sheets, not signed as required by the
Recorder’s Court Docket Control Directive 93-5 (see
attachment 2).[3] The same Directive requires the
3
Docket Control Directive: DCD No. 93-5
Date: February 1, 1993
Re: Maintenance of Records on Court Sheets
1. Each judge shall personally sign the court
sheets recording each day’s activity.
5
court clerk to indicate on the court sheet if the
judge takes an unanticipated leave for vacation or
illness.
There were no indications on the court
sheets in those months and no leave of any type
reflected
in
the
Recorder’s
Court
official
attendance record [4] for Judge Hathaway during those
months.
If judicial leave cannot explain the high
number of days when all or most of the proceedings
were adjourned, then the possibility exists that
Judge Hathaway was choosing not to do the scheduled
work in her courtroom. For example, June, 1996 had
20 working days. The court sheets are missing for
two days, six days had all matters adjourned and
four days had most proceedings adjourned.
Trial
activity occurred on three days during the month,
resulting in one guilty verdict and one mistrial.
August, 1996 shows a similar pattern of work
habits. No official leave is recorded, yet nine of
the 19 working days on the court sheets showed that
all matters were adjourned and on another two days
most matters were adjourned.
There was no trial
activity in August other than a plea at a scheduled
jury trial.
In light of the facts pertaining to Ketchings and Judge
Hathaway’s more generalized failure to perform the duties of
office, the commission reached this conclusion:
Respondent’s
constant
and
repeated
adjournments of proceedings without good cause, as
exemplified in the case of People v Ketchings, as
well as repeated unnecessary and unexcused absences
from judicial responsibilities during normal court
hours were inappropriate. Likewise, Respondent’s
overall lack of industry and proper management of
her court docket as well as an unwillingness to
take corrective action or accept constructive
suggestions
or
assistance
to
improve
case
management,
constituted
a
hindrance
to
the
administration of justice and gave the appearance
of impropriety, all contrary to Canons 1 and 3 of
the Code of Judicial Conduct and MCR 9.205(A) and
(C)(2) and (4).
D
The overall conclusion of the commission was that Judge
Hathaway “has committed misconduct in office, in violation of
MCR 9.205(C), and violated the provisions of Canons 1, 2 and
3
of
the
Michigan
Code
of
Judicial
Conduct.”
Without
2. If the judge takes an unanticipated leave
for vacation or illness, it should be indicated by
the court clerk on the court sheet. If the judge
comes in and leaves because of illness or other
business, that should also be indicated on the
court sheet.
3. In the absence of a judge on pretrial day,
a court clerk may not set subsequent proceeding
dates and indicate on the court sheets that
pretrial was held.
4
The record of this case does not contain the “official
attendance record.”
6
additional explanation, the commission then recommended that
this Court accept its findings of judicial misconduct and
impose a thirty-day suspension without pay.5
II
In lieu of acting upon that recommendation, we remanded
this case to the commission “for the articulation of standards
of judicial discipline, and the application of those standards
to the instant case, in order that this Court can meaningfully
carry out its powers of judicial review under Const 1963, art
6, § 30(2).
See In re Brown, [461 Mich 1291 (2000)].”
461
Mich 1296 (2000).
On remand, the commission renewed its recommendation of
a thirty-day suspension without pay.
The commission did not
provide further elaboration of its reasoning, noting that “the
composition of the Commission has changed substantially” since
its initial recommendation.
The commission added:
In the future the Commission will, to the
extent possible, cite additional factors which may
facilitate the Supreme Court’s review of sanctions
imposed by the Commission.
This Court then placed the case on its calendar,6 and
directed the parties to brief the issue “whether the proposed
suspension of thirty days without pay is sufficient discipline
in this case.”
462 Mich 1233, 463 Mich 1201 (2000).
III
The Judicial Tenure Commission was established in 1968
when the people of Michigan amended the constitution to add a
§ 30 to article 6.
When the commission comes to this Court
with a recommendation for discipline, it invokes the Court’s
jurisdiction under Const 1963, art 6, § 30(2), which provides:
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
5
Eight of the nine commission members heard this matter.
All eight concurred in the recommendation.
6
MCR 9.224(C), (F).
7
proceedings.
Under this Court’s constitutional authority to make rules
implementing Const 1963, art 6, § 30, we promulgated GCR 1963,
932 in early 1969.7
381 Mich lxxxiii (1969).
When the
General Court Rules of 1963 were replaced in 1985 by the
Michigan Court Rules, the provisions of GCR 1963, 932 were
placed in separate rules within subchapter 9.200.
419A Mich
552-569 (1985).
When this Court receives a disciplinary recommendation
from the commission, it has authority to “censure, suspend
with or without pay, retire or remove” a judge.8
art 6, § 30(2).
Const 1963,
On receipt of such a recommendation, this
Court undertakes a de novo review of the matter.
Ferrara, 458 Mich 350, 358; 582 NW2d 817 (1998).
In re
This review
occurs whether or not the respondent judge files a petition
with this Court.
MCR 9.224(A), (C).
In 1969, when this Court exercised its constitutional
rulemaking
authority
under
Const
1963,
art
6,
§
30
by
implementing GCR 1963, 932, we included this subrule:
The Supreme Court shall review the record of
the proceedings on the law and facts and shall file
a written opinion and judgment directing censure,
removal,
retirement,
suspension,
or
other
disciplinary action as it finds just and proper, or
reject or modify, in whole or in part, the
recommendations of the commission.
[GCR 1963,
932.25.]
That subrule was not amended until 1985, when it was
replaced by MCR 9.225:
The Supreme Court shall review the record of
the proceedings and shall file a written opinion
and judgment which may direct censure, removal,
retirement, suspension, or other disciplinary
action, or reject or modify the recommendations of
7
We earlier had promulgated GCR 1963,
transitional rule. 381 Mich lxxxii (1968).
8
931
as
a
Independent of Const 1963, art 6, § 30, which the
people of Michigan added to the constitution in 1968, this
Court has general superintending control of all Michigan
courts. Const 1963, art 6, § 4. This provision is a broad
grant of constitutional authority to take necessary action,
short of the outright removal of a judge. See In re Probert,
411 Mich 210, 229-233; 308 NW2d 773 (1981). See also In re
Huff, 352 Mich 402; 91 NW2d 613 (1958) and the discussion of
Huff by the framers of the 1963 constitution.
1 Official
Record, Constitutional Convention 1961, p 1269-1287. In the
present case, there is no need to explore the nature or
dimensions of this Court’s authority under Const 1963, art 6,
§ 4.
8
the commission.
The
court
rule
states
our
authority
to
modify
a
recommendation of the commission, and the meaning of the word
”modify”
encompasses
authority
to
alter
the
recommended
discipline. Random House Webster’s College Dictionary defines
“modify” as follows:
[T]o change somewhat the form or qualities of;
alter partially; amend; to modify a contract. RANDOM
HOUSE WEBSTER ’S COLLEGE DICTIONARY 843 (2nd ed. 1997).9
Our respect for the judgment of the men and women who
have served on the commission is substantial, and to date we
have not had occasion to increase the discipline recommended
for a respondent judge---we likewise anticipate that few such
occasions will arise in the future.
Yet our authority to
increase the recommended discipline is clear.10
9
The dissent purports to rely upon two dictionary
definitions that seemingly restrict the meaning of “modify” to
its “limiting” sense. Both of the dictionaries the dissent
references, however, include the definition of “modify” we
rely upon here.
10
There is no indication that the use of the term
“modify” was intended to permit or preclude this Court from
altering the recommended discipline so as to adequately
address the nature of the ethical infraction at issue.
Illustratively, the term “modify”, if construed to mean that
this Court could only reduce a sanction recommended by the
JTC, would, in our judgment, deny this Court the ability to
fairly and effectively carry out its obligations under MCR
9.225 to “review” the JTC’s record and to file a “written
opinion and judgment” in accord with that review.
As we
recently observed in an order of remand to the JTC:
The most fundamental premise of the rule of
law is that equivalent misconduct should be treated
equivalently . . . it is the burden of the JTC to
persuade this Court that it is responding to
equivalent cases in an equivalent manner and to
unequivalent cases in a proportionate manner. In
other words, to demonstrate that there is a
consistently enforced system of judicial discipline
in Michigan.
* * *
The importance of such standards is both in
ensuring that the JTC is consistent in its
consideration of factors relevant to the level of
sanctions, and in enabling this Court, by its
constitutional obligation, to meaningfully review
the JTC’s recommendations. In re Brown, 461 Mich
1291, 1292 (2000).
Just as there is an obligation upon the JTC, derived from
the fundamental “rule of law”, to sanction in an equivalent
and proportionate manner, so too does this Court have such an
obligation under MCR 9.225. Satisfying this obligation would
not be possible if this Court could only “modify” the
recommended sanctions of the JTC in a downward manner. Unless
“modify” is given its ordinary meaning, to change or to alter,
9
That
we
have
authority
to
alter
the
recommended
discipline is bolstered by the persuasive decision of the
Washington Supreme Court in In re Disciplinary Proceeding
against
Anderson,
138
Wash
2d
830;
981
P2d
426
(1999).
Working from a similar grant of constitutional authority,11 the
Washington Supreme Court considered a recommendation from the
state’s Commission on Judicial Conduct12 that a judge be
suspended without pay for four months and required to take a
specified “course of corrective action.”
138 Wash 2d 840.
For reasons stated at length by the Washington Supreme Court,
it decided instead to remove the judge from office.
2d 854.
138 Wash
With regard to its authority to take such action, the
Washington Supreme Court explained:
This court reviews judicial disciplinary
proceedings de novo. In re Discipline of Deming,
108 Wash 2d 82, 87-89; 736 P2d 639; 744 P2d 340
(1987). De novo review of judicial disciplinary
proceedings requires an independent evaluation of
the record as the court is not bound by the
Commission's findings or conclusions. In re
Discipline of Turco, 137 Wash 2d 227, 246; 970 P2d
731 (1999). De novo review does not mean that the
Supreme Court conducts a new evidentiary hearing.
Rather, this court must independently determine if
the judge violated the Code of Judicial Conduct,
and, if so, the proper sanction to be imposed. Id.
The Commission bears the burden of proving factual
findings by clear, cogent, and convincing evidence.
Id.
In evaluating the evidence, we necessarily
give
considerable
weight
to
credibility
the simultaneous pursuit of equivalence and proportionality in
this Court’s review of the recommendations of the JTC, would,
in many cases, be unattainable. Because we do not believe
that these objectives are in tension with one another, or that
there are occasions on which we should be constrained by one
from achieving the other, “modify” is properly interpreted, in
our judgment, to enable either upward or downward changes in
the recommendations of the JTC.
11
Upon the recommendation of the commission, the
supreme court may suspend, remove, or retire a
judge or justice. The office of a judge or justice
retired or removed by the supreme court becomes
vacant, and that person is ineligible for judicial
office until eligibility is reinstated by the
supreme court. The salary of a removed judge or
justice shall cease. The supreme court shall
specify the effect upon salary when it suspends a
judge or justice. The supreme court may not
suspend, remove, or retire a judge or justice until
the
commission,
after
notice
and
hearing,
recommends that action be taken, and the supreme
court conducts a hearing, after notice, to review
commission proceedings and findings against the
judge or justice. [Wash Const, art 4, § 31(5).]
12
As in Michigan, the Washington commission is itself a
creature of the constitution. Wash Const, art 4, § 31(1).
10
determinations by the Commission, as the body that
had the opportunity directly to observe the
witnesses and their demeanor. Id. Additionally,
we give serious consideration to the Commission's
recommended sanctions.
In re Discipline of
Ritchie, 123 Wash 2d 725; 870 P2d 967 (1994).
Nevertheless, the Commission's recommendation is
just that.
The constitution's use of the word
“recommend” indicates an intent to place the
ultimate decision to discipline in the Supreme
Court. Deming, 108 Wash 2d at 88. [138 Wash 2d
843 (emphasis supplied).]
IV
We explained in Ferrara that “[o]ur primary concern in
determining
the
appropriate
sanction
is
to
restore
and
maintain the dignity and impartiality of the judiciary and to
protect the public.”
458 Mich 372.
Thus, we chose a course
of discipline that was “based on the nature, extent, and
frequency of the misconduct.”
458 Mich 373.
Earlier, we had said this in In re Hocking, 451 Mich 1,
24; 546 NW2d 234 (1996):
In assessing the appropriate sanction in
judicial disciplinary proceedings, our primary
charge is to fashion a penalty that maintains the
honor and the integrity of the judiciary, deters
similar conduct, and furthers the administration of
justice. See In re Seitz, 441 Mich 590, 624; 495
NW2d 559 (1993).
In this Court’s Brown decision, we listed the following
standards, though not an exhaustive list, that the JTC shall
consider in making its recommendation:
(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
11
considerations as race, color, ethnic background,
gender, or religion is more serious than breaches
of justice that do not disparage the integrity of
the system on the basis of a class of citizenship.
Brown, supra, at 1292-1293 (2000).
In
its
Anderson
decision,
the
Washington
Supreme
Court
elaborated on similar criteria.13
In the present case, we cannot agree with the commission
that
a
thirty-day
suspension
without
pay
is
sufficient
discipline. Applying the Brown standards to the instant case,
we believe that the course of sustained judicial misconduct
that this record reveals requires stronger disciplinary action
than the thirty-day suspension without pay that Judge Hathaway
consented to and which the JTC recommended to this Court.
particular,
we
refusal
attend
to
conclude
to
that
her
Judge
judicial
In
Hathaway’s
protracted
duties
worked
has
an
injustice, not only upon the defendants charged with crimes
who had every legitimate expectation that their cases would be
handled expeditiously by the court, but also the witnesses in
those matters, the very people on whom our system of justice
depends.
The repeated unexplained adjournments of matters
pending before Judge Hathaway have worked an injury upon the
public and potentially contributed to the increasing cynicism
about our judicial system, its efficacy and fairness.
The circumstances of the arraignment in Spearman were
utterly
irregular.
against
Mr.
Spearman
The
and
confusion
regarding
regarding
the
the
charges
advisability
of
facilitating his release were the direct result of Judge
13
In determining the appropriate sanction for judicial
misconduct, the court considers:
(a) whether the misconduct is an isolated
instance or evidenced a pattern of conduct; (b) the
nature, extent and frequency of occurrence of the
acts of misconduct; (c) whether the misconduct
occurred in or out of the courtroom; (d) whether
the misconduct occurred in the judge's official
capacity or in his private life; (e) whether the
judge has acknowledged or recognized that the acts
occurred; (f) whether the judge has evidenced an
effort to change or modify his conduct; (g) the
length of service on the bench; (h) whether there
have been prior complaints about this judge; (i)
the effect the misconduct has upon the integrity of
and respect for the judiciary; and (j) the extent
to which the judge exploited his position to
satisfy his personal desires. Deming, 108 Wash 2d
at 119-120. [138 Wash 2d 854-855.]
12
Hathaway’s inexplicable decision to place the interests of Mr.
Spearman and his counsel, Mr. Culpepper, ahead of all other
interests, including protection of the public.
We employ the
term “inexplicable” advisedly, since no remotely convincing
explanation has yet been tendered for the handling of the
Spearman arraignment, nor can we imagine one.
The improper effort to persuade Mr. Crosse to waive his
right to a jury trial is another example of a serious one-time
breach of Judge Hathaway’s responsibility to use her judicial
power lawfully.
However, it surely was connected to a more
serious problem that was ongoing---her prolonged failure to
attend in timely fashion to the business of her court.
Ketchings was chosen by the commission as an example of
a case in which Judge Hathaway’s refusal to do her work caused
profound suffering for the family of the victim and outrageous
inconvenience for the witnesses.
example.
However, it is only an
The record of this case amply demonstrates the
remarkable extent of Judge Hathaway’s failure to discharge her
judicial duties.
We are not talking here of a failure to move
papers or to file administrative reports.
Nor are we talking
about a judge having “a bad day”---or several.
disciplinary
proceeding
concerns
a
judge
Rather, this
who
has
simply
declined over an extended period to do her work.
Again citing Ketchings only as an example, the record
reflects
twenty-one
adjournments,
five
initiated
by
the
defense, none by the prosecution, and sixteen by the court.
After all this, the parties gathered for trial on January 30,
1997, only to be advised by Judge Hathaway that another
adjournment would occur because “I just don’t feel like doing
it.”
Judge Hathaway then inexplicably recused herself from
the case, causing still more delay.
described
the
mother
of
“devastated”
by
the
events
establishes,
if
not
a
the
of
pattern
The assistant prosecutor
nine-year-old
January
of
30.
deliberate
victim
This
as
record
misconduct,
capricious conduct shockingly lacking in appropriate judicial
deliberation.
This
is
indefensible
conduct.
13
A
judge’s
whimsical
decision whether to work on a particular day, or during
particular months, cannot take precedence over the affairs
brought to the courthouse by the people for resolution.
As with Spearman, we are further troubled by the absence
of any plausible explanation for this conduct. Judge Hathaway
generally denies excessive absences, and relies on the fact
that her docket is reported to be current at this time.
Absent some understanding of why these problems occurred, or
even a direct acknowledgment that such a situation existed, we
see no reasonable basis for assuming that these problems are
safely behind her.14
For
these
reasons,
we
disagree
with
the
JTC’s
recommendation that respondent be suspended only thirty days
without pay.
In our judgement, the conduct of respondent is
deserving of far more serious discipline that is in keeping
with severity of the breach of standards of judicial conduct
demonstrated in this record. The discipline sanction should
(1)
first
and
foremost
impress
upon
the
respondent
the
severity and significance of her misconduct and (2) serve as
a strong motivation to deter her from future misconduct.
Highly relevant to our determination is the fact that Judge
Hathaway has never on this record acknowledged the nature of
her misconduct, or the deleterious effect that it has had on
the persons who appeared before her, or on the public’s
perception of the judiciary.
We conclude that our disciplinary goals will be best
served if Judge Hathaway is suspended without pay for a period
of six months.15
14
Indeed, the only Brown criterion not implicated in this
record is criterion seven. There is no evidence that any of
Judge Hathaway’s actions or inactions were predicated upon
consideration of race, sex or any other impermissible
characteristic.
15
Likewise, in In re Moore we ordered that Judge Moore
be suspended for a period of six months without pay.
We
recognize that the Brown standards, as applied to the conduct
of Judges Hathaway and Moore, support proportionate sanctions.
A six-month suspension without pay is justified in Moore
because of Judge Moore’s pattern of misconduct extending over
a period of twenty years. Though Judge Hathaway’s misconduct
occurred over a shorter period of time in comparison to that
of Judge Moore, we believe a six-month suspension is justified
because of the troubling nature of Judge Hathaway’s conduct.
Accordingly, the misconduct engaged in by both Judges Hathaway
14
V
The dissent contends that this Court does not have the
constitutional
authority
to
increase
the
discipline
recommended by the JTC. In fact, the dissent suggests that to
do so violates our duty to the constitution.
We believe, to
the contrary, that the dissent’s position is inconsistent with
the constitution.
The dissent’s view results in partial
“immunization” of JTC decisions from accountability to any
elected branch of government and is contrary to the central
organizing principle of constitutional government–control by
the citizens, either indirectly (election of legislators,
executive or judicial officers all of whom are accountable for
their actions and the actions of their agents) or directly
(initiative or referendum) of all aspects of government.
Under the dissent’s approach, the JTC, selected not by the
people but by lower court judges, the State Bar of Michigan,
and the Governor,16 could conceivably give mild wrist slaps to
seriously misbehaving judges, and no one that reports directly
to the people, no member of this Court, no legislator, and no
Governor could do a thing about it.
Such a departure from
fundamental constitutional theory, namely, a departure from
electoral accountability, should be a power found only if very
clearly stated in the constitution.
situation here.
We do not have that
Indeed, the dissent’s position can only be
attained by torturing the definition of the word “modify,”
suggesting that it only means a downward departure.
This is an interesting position for the author of the
dissent to advocate, given that only six months ago he voted
to increase a JTC recommended sanction.
See In re Runco, 463
Mich 517, 518; 620 NW2d 844 (2001), the very thing he today
says is constitutionally forbidden.
In that matter, Judge
and Moore are equally deserving of a six-month sanction.
16
Pursuant to Const 1963, art 6, § 30, the JTC has nine
members, one Court of Appeals judge elected by the Court of
Appeals judges, one circuit judge elected by the circuit
judges, one probate judge elected by the probate judges, one
district court judge elected by the district judges, three
members elected by the state bar of whom one shall be a judge
and two shall not be judges, and two members are appointed by
the Governor who shall not be judges, retired judges or
members of the state bar.
15
Runco was brought before this Court by the JTC with the
recommendation
being
a
censure.
We
affirmed.
Justice
Cavanagh, however, in dissent effectively asserted that the
sanction be “modified” upward from a censure to thirty days.
Id. at 524.
A penalty, not to belabor the obvious, that was
considerably more severe than that recommended by the JTC.
As to the dissent’s analysis, after deconstructing the
definition of the word “modify” to claim it only allows a
downward departure (see n 9), it then urges that the language
“[o]n
recommendation
of
the
judicial
tenure
commission”
suggests that “[t]his Court’s actions in judicial discipline
cases that are not ‘on recommendation’ of the JTC are actions
. . . not authorized by the constitution.”
Slip op pp 3-4.
However, the dissent’s argument is effectively undermined by
its
further
insistence
that
an
increase
from
the
JTC’s
recommended discipline is not “on recommendation” of the JTC,
but that a decrease from the JTC’s recommended discipline is
“on recommendation” of the JTC.
We do not understand how the
dissent can, consistent with the constitution, vote in support
of a decrease in the discipline recommended by the JTC,17 yet
maintain
that
it
is
unconstitutional
for
this
Court
to
increase the JTC’s recommended discipline.18
17
See In re Simmons, 444 Mich 781; 513 NW2d 425 (1994).
In
Simmons,
this
Court
rejected
the
commission’s
recommendation of a public censure and did not impose any
punishment.
18
The dissent's theory of what "on recommendation" means
can only be described as a "ratchet construction"—one that
proceeds in only one direction. The dissent urges that the
Mikesell matter, in which this Court rejected the JTC's
recommendation of permanent removal in favor of a time-limited
suspension,
was
nonetheless
a
decision
made
"on
recommendation" "because the more severe discipline, or more
bases of misconduct, recommended by the JTC necessarily
include lower levels of discipline and the bases of misconduct
recommended, but not accepted." Slip op, p 5 n 1 (emphasis
added).
Apart from the fact that this explanation has a certain
impenetrable Alice in Wonderland logic about it, and leaving
aside that judicial discipline jurisprudence recognizes no
"lesser included offenses," the dissent's argument is
internally inconsistent.
If this Court rejects the JTC
recommendation and interposes a lower level of discipline, the
Court has not acted on the recommendation as the dissent
contends. On the contrary, if the dissent's argument were
truly consistent, then when, as in Mikesell, this Court
rejects some of the bases for discipline the JTC relied upon,
the Court would then be obligated to remand the case to the
JTC for a new recommendation concerning the remaining acts of
16
Indeed, consistent with Justice Cavanagh’s own voting
record, we are convinced that the phrase “on recommendation”
is an expression on how the judicial discipline process is
initiated. Once the JTC makes a recommendation of discipline,
this Court may accept or reject that recommendation. Inherent
in our authority to reject a JTC recommendation is the option
to decide the appropriate discipline to impose, whether it be
an
affirmance,
a
reduction,
or
an
increase
in
the
recommendation of the JTC.19
It is also noteworthy that the dissent has no response to
the anomalous situation, identified in note 10, in which this
Court would find itself if “modify” were interpreted only to
refer to a downward change in sanction. We would be precluded
in
many
instances
from
achieving
both
equivalence
and
proportionality in our sanctions, instead necessarily having
to subordinate one or the other of these fundamental judicial
values in favor of the other.
In fact, the most that can be
argued by one holding the position that no upward departure is
constitutionally allowed—and it has been said by none other
than
Justice
Cavanagh
himself—is
that
increasing
the
recommended suspension has “never directly [been] addressed by
this Court before” (except of course, in Justice Cavanagh’s
dissent in Runco).
See Hathaway, 463 Mich 1201 (2000).
This
case presents a question of original impression, rather than
as the dissent would characterize it, a departure from an
unbroken line of cases for thirty-three years that have held
contrary to today’s majority.
the
meaning
adopted
by
Only if “modify” is accorded
the
majority
can
this
Court
simultaneously achieve both of these indispensable ends.
Finally, we could not disagree more with the dissent that
Judge Hathaway was not aware of the possibility that “the
harshest
discipline”
she
might
face
may
go
beyond
that
misconduct.
Neither the dissent nor this Court has
interpreted the Const 1963, art 6, § 30(2) in this fashion and
nothing in that provision compels such a construction.
19
The dissent’s position would also preclude this Court
from being able to ensure fairness and proportionality across
discipline cases. See footnote 10.
17
recommended by the JTC.
Slip op, p 15.
Judge Hathaway fully
contested the charges at every level available to her at the
JTC. In this Court’s July 26, 2000, order directing that this
case be placed on the calender for oral argument and also
directing the parties to address the sufficiency of the
recommended discipline, Judge Hathaway was fully apprised that
she might face an increased sanction from that recommended by
the JTC.
See 463 Mich 1201 (2000).
Even in the dissenting
statement prepared by Justice Cavanagh, when this matter was
set for oral argument, Judge Hathaway was provided with
further notice of the possibility that this Court might not
believe
a
thirty-day
suspension
is
justifiable
increased sanctions might be forthcoming.
and
that
Here is what
Justice Cavanagh said:
I can only assume that implicit in this
Court’s order is the issue whether this Court
has the authority to increase any discipline
recommended by the Judicial Tenure Commission,
an issue of great significance and one never
directly addressed by this Court before. 463
Mich 1201 (2000). Id.
Indeed, Judge Hathaway’s brief addressed the issue whether
this Court had the authority to increase the recommended
suspension and the issue was explored further when we heard
oral argument.
We believe that there was no question that
Judge Hathaway was aware of the potential for an increased
sanction from that recommended by the JTC.
For these reasons, we do not agree with the dissent.
Pursuant to MCR 7.317(C)(3), the Clerk is directed to
issue the judgment order forthwith.
CORRIGAN ,
C.J.,
and
TAYLOR ,
concurred.
18
YOUNG ,
and
MARKMAN ,
JJ.,
S T A T E
O F
M I C H I G A N
SUPREME COURT
IN RE HONORABLE CYNTHIA GRAY HATHAWAY,
Judge of the Third Circuit Court,
Detroit, Michigan.
No. 112495
_____________________________
WEAVER, J. (concurring).
I concur in the result and the reasoning of parts I
through IV of the majority opinion.
S T A T E
O F
M I C H I G A N
SUPREME COURT
IN RE HONORABLE CYNTHIA GRAY HATHAWAY,
Judge of the Third Circuit Court,
Detroit, Michigan.
No. 112495
________________________________
CAVANAGH , J. (dissenting).
With its decision in this case, this Court departs from
thirty-three years of precedent to assert that it has the
constitutional authority to impose a level of discipline that
exceeds the discipline recommended by the Judicial Tenure
Commission.
considered
It does so in a matter that the JTC has twice
and
in
which
twice
a
unanimous
JTC
and
the
respondent Judge Hathaway have agreed on the appropriate level
of discipline.
I do not believe that this Court has the
constitutional
authority
to
increase
the
discipline
recommended by the JTC and, accordingly, I must respectfully
dissent.
I
As our deliberations in these cases have invariably
demonstrated,
our
views
of
what
is
“proportionate” discipline vary greatly.
appropriate
and
The final level of
discipline imposed quite often is a negotiated level on which
at least a majority of this Court can agree.
to
doubt
similarly.
that
the
decisional
process
for
I have no reason
the
JTC
works
Any recommendation emanating from that body, more
often an amalgam of its members opinions, is a subjective
view.
Because the JTC has the experience of dealing with
these matters routinely, I have usually felt great reluctance
in
replacing
the
JTC’s
determination
discipline with my own subjective view.
of
an
appropriate
On some occasions, I
have joined this Court’s rejection of recommended discipline
as inadequate. See, e.g., In re Griffin, 448 NW2d 352 (1989).
However,
in
each
instance
of
this
Court
finding
the
recommended discipline inadequate, it has returned the matter
to the JTC for reconsideration and the possibility of a new
recommendation.
majority
of
With its decision in this case, though, a
this
Court
rejects
the
JTC’s
twice-offered,
unanimous recommendation, and sua sponte raises the level of
discipline imposed.
In doing so, it also raises the stakes
and alters the historically understood dynamic in judicial
discipline proceedings.
A. THE SUPREME COURT ’S AUTHORITY
TO
INCREASE DISCIPLINE
Before addressing the now-dynamited dynamic, though, I
must address the majority’s error in concluding that this
Court
even
has
the
authority
to
increase
the
level
of
discipline recommended by the JTC. The JTC was created by the
Michigan
Constitution,
and
this
Court’s
authority
over
judicial discipline is granted by that document as well.
Our
authority, however, is limited:
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. [Const 1963, art 6, § 30(2).]
The majority concludes that this provision gives this Court
the authority to increase the level of discipline recommended
by the JTC.
It observes that this Court may “censure,
suspend, with or without pay, retire or remove” a judge.
slip op at 11, quoting Const 1963, art 6, § 30(2).
See
However,
I cannot agree with that conclusion because it does not
account for the common understanding of the constitution.
When interpreting constitutional provisions, this Court
applies the rule of common understanding, first articulated by
Justice COOLEY . Any such analysis is conspicuously absent from
the majority opinion, but under this rule, we interpret the
constitution to have the meaning most obvious to the common
understanding, which is the meaning reasonable minds, the
great mass of the people, would give it.
See Traverse City
Sch Dist v Attorney Gen, 384 Mich 390, 405; 185 NW2d 9 (1971).
2
The most obvious sense of the constitution is that this Court
may impose the levels of discipline mentioned, but that it may
only
do
so
“[o]n
recommendation
of
the
judicial
tenure
commission . . . .” This phrase introduces this Court’s power
in judicial discipline cases, and conditions any exercise of
this Court’s authority on that exercise first having been
recommended by the JTC.
If the JTC has not recommended to
this Court that the Court exercise its authority to impose a
certain penalty, then any such exercise by definition cannot
be “on recommendation” of the JTC.
This Court’s actions in
judicial discipline cases that are not “on recommendation” of
the JTC are actions in the first instance, and are not
authorized by the constitution. Rather, they are an assertion
of plenary power over judicial discipline cases.
This exercise of plenary power is contrary to this
Court’s demonstrated understanding of its proper role in
judicial discipline cases.
For example, In re Mikesell, 396
Mich 517; 243 NW2d 86 (1976), held that § 30(2) authorizes
this Court to act in judicial discipline cases only on the
JTC’s recommendations. In Mikesell, the JTC filed a complaint
against the respondent judge, alleging twelve instances of
misconduct.
However, only five of the twelve allegations
survived the initial proceedings and were recommended to this
Court as bases for discipline.
had
to
decide
was
whether
it
One of the issues this Court
could
consider
all
twelve
allegations, or only those five that survived the JTC’s
review.
The Court concluded that the allegations upon which
the JTC had not relied were “not part of the recommendation of
the Commission and [would] not be considered by this Court.”
Id. at 526.
Thus, Mikesell held that in judicial discipline
cases, this Court is limited to acting on recommendation of
the JTC, and matters beyond the JTC’s recommendation are not
to be considered by the Court.1
1
Occasionally, this Court has deviated downward from
both the JTC’s recommendations on the bases of discipline and
the level of discipline. In Mikesell, for example, the JTC
alleged five bases of misconduct and recommended that the
(continued...)
3
Despite
the
Court
being
restricted
to
acting
“on
recommendation” of the JTC, a majority of this Court imposes
discipline
on
respondent
recommendation.
that
is
beyond
the
JTC’s
The JTC recommended that respondent receive
a thirty-day suspension, but the Court has gone well beyond
that recommendation to impose a six-month suspension.
Like
the bases of discipline that were not recommended and could
not be considered in Mikesell, the six-month suspension the
Court imposes on respondent was not recommended to this Court,
so
this
Court
lacks
the
constitutional
authorization
to
consider such discipline, let alone the authorization to
impose it on respondent.
JTC’s
recommendation,
it
If the Court is unhappy with the
should
follow
our
longstanding
practice and remand the case to the JTC, rather than assert
its own power to act beyond the JTC’s recommendation.
Because
the
constitution
limits
this
Court
to
the
discipline recommended by the JTC, I also cannot agree with
the majority’s interpretation of MCR 9.225.
provides
that
this
Court
may
That rule, which
“modify”
the
JTC’s
recommendations, must be read to conform to the Constitution.
As we stated in Grievance Admin v Underwood, 462 Mich 188,
193; 612 NW2d 116 (2000), the court rules are interpreted
under the principles of statutory construction, which require
us to read the court rules in a manner that does not conflict
1
(...continued)
respondent judge be removed from office. However, the Court
accepted only three of the bases for discipline, and suspended
the judge for one and a half years. See Mikesell at 520, 539;
see also In re Moore, 464 Mich 98; ___NW2d __ (2001)
(rejecting bases of misconduct and lowering the recommended
discipline).
Although these cases represent variations from the JTC’s
recommendations, the Court’s actions in them did not go beyond
the JTC recommendations.
For example, the JTC recommended
removal in Mikesell, but the Court ordered a suspension. The
suspension was “on recommendation” of the JTC because
permanent removal certainly entails one and a half years off
the bench. When the Court has ordered less severe discipline
than the JTC has recommended, or has not accepted all the
bases of misconduct, the Court nevertheless acts “on
recommendation” of the JTC because the more severe discipline,
or more bases of misconduct, recommended by the JTC
necessarily include the lower levels of discipline and the
bases of misconduct recommended, but not accepted. Thus, I
disagree with the majority’s conclusion that such an action
would not be “on recommendation” of the JTC.
4
with the Constitution.
See People v McLeod, 407 Mich 632,
657; 288 NW2d 909 (1980).
Thus, the court rule’s provision
that we may “modify” the JTC’s recommendations can only mean
that this Court may modify them as long as it stays within the
recommendations.
a
recommendation
It cannot mean that this Court may “modify”
to
do
something
recommended in the first place.
that
the
JTC
has
not
Doing so is not modifying a
recommendation for action, but is taking a greater action
despite the recommendation.
Such a meaning and the actions
pursuant to it, conflict with the constitutional requirement
that this Court can only act “on recommendation” of the JTC.2
The
majority
seems
to
understand
me
to
first
“deconstruct” and “torture” the term “modify,” and then urge
2
Notably, the majority cites a definition of “modify”
that allows it to “alter” the recommendation, and asserts that
its authority to increase discipline is “clear.” Slip op at
12-13. Even aside from the constitutional problems with the
majority position, the Court’s understanding of the term
“modify” is not so “clear.” Rather, “modify” is defined to
mean to alter something by making it less extreme, severe, or
strong.
For example, The American Heritage Dictionary (2d
College ed), p 806-807, defines “modify” to mean:
1. To change in form or character; alter. 2.
To make less extreme, severe, or strong. 3. . . .
To qualify or limit the meaning of. . . 4. . . .
To change (a vowel) by umlaut . . . To be or become
modified. [Emphasis added.]
Similarly, Webster’s New International Dictionary of the
English Language (2d ed, unabridged), p 1577, indicates that
“modify” means to change by lessening:
1. To limit; also, to mitigate, assuage, Obs.
2. To reduce in extent or degree; to moderate;
qualify;
lower;
as,
to
modify
heat,
pain,
punishment. (He modifies his first severe decree.
Dryden.) 3. To differentiate into, or diversify
by, different forms, as light, sound, passion; –
now merged in sense 4. 4. To change somewhat the
form or qualities of; to alter somewhat; as, to
modify the terms of a contract.
5.
Gram.
To
limit or restrict the meaning of; to qualify. 6.
Philol.
To change by umlaut.
7.
Philos.
To
determine the, or a particular, mode of. 8. Scots
Law. To award a decree as something to be done or
paid.
–,
Intrans.:
To
undergo
or
make
a
modification; change. [Emphasis added.]
The majority is correct that these dictionaries include the
definitions they choose.
See slip op at 12, n 9.
Nevertheless, I offer these definitions of “modify” to
illustrate the different understandings of the term, in
contrast with the majority’s convenient citation of only the
definition that supports its conclusion. With these different
understandings of “modify,” I can hardly agree that the
majority conclusion is “clear.” See slip op at 13.
5
that
the
constitutional
language
“on
recommendation”
conditions this Court’s power in judicial discipline cases.
See slip op at 22.
This understanding is quite backward.
As
explained above, the “on recommendation” language from art 6,
§ 30(2) limits this Court’s power.
must
interpret
the
term
Because of that limit, we
“modify”
consistent
with
the
constitution, which means interpreting it to mean that this
Court
cannot
discipline.
exceed
If
the
JTC
recommendations
a
interpreting
in
court
term
in
the
imposing
rules
consistent with the constitution is a “tortured” reading of
the term, then this Court must be the Torquemada of text,
because
we
interpret
such
terms
as
consistent
with
the
constitution as frequently as necessary because it is our
duty.
See McLeod, supra at 657; see also Singer, 2A Statutes
& Statutory Construction (6th ed), § 45.11, pp 70-71.
If
adhering to this canon of construction is torturing a word,
then we all must be prepared to occasionally inflict forty
lashes.
Beyond this, I find perplexing the majority’s other
pontifications on restricting the term “modify” to conform to
the constitutional requirements.
See slip op at 13, n 10.
The majority sees no indication that the term “modify” only
allows the Court to operate within the JTC’s recommendations,
but that indication is the constitution, which restricts this
Court to the JTC recommendations.
Further, the majority
suggests that, absent the expansive understanding of “modify,”
which is only possible once the constitutional limitation that
this
Court
may
act
only
on
the
JTC’s
recommendation
is
discarded, this Court would be unable to review JTC decisions,
and would not operate under the “rule of law.”
For thirty
three years, however, this Court has successfully reviewed JTC
actions, and has issued written opinions and judgments in
accord with its review without exercising the power to sua
sponte increase the discipline imposed on respondent judges.
During that time, rather than act in the first instance, if
our review of JTC decisions had left us dissatisfied, we
indicated that the proposed discipline was inappropriate and
6
remanded such decisions to the JTC for further consideration.
See, e.g., In re Griffin; In re Lawrence, 419 Mich 1212
(1984).
Our practice of conforming to the constitutional
language and remanding to the JTC in no way hindered our
ability to review JTC decisions.
we
simply
gave
the
JTC
an
In carrying out our review,
opportunity
to
come
to
a
satisfactory decision before this Court reviewed the matter
again.
Because this Court’s longstanding practice fully
effectuated its duty to review JTC decisions, the majority’s
apparent conclusion that for the past thirty-three years, this
Court and the JTC have been operating outside of the rule of
law is at best hyperbole, and disrespects this Court itself.
Overstated as well are the majority’s protestations that
my position is contrary to the central organizing principle of
constitutional government. The majority asserts that under my
view, the JTC is not accountable to any elected body, and that
the JTC, therefore, could act inappropriately and no elected
body could do a thing about it.
See slip op at 21-22.
assertions are simply not true.
remains
accountable
to
this
Under my view, the JTC
Court,
accountable to the people of Michigan.
must
be
approved
by
this
These
Court,
and
which
is
in
turn
JTC recommendations
if
we
think
the
recommended discipline is not sufficient, we can direct the
JTC to consider the matter further.
Thus, if the JTC acts
inappropriately, we can do a thing about it, the same thing we
have
done
for
constitutional
years.
condition
For
those
that
our
years,
actions
and
under
must
be
the
“on
recommendation” of the JTC, accountability has not been a
problem, and continuing as we have been is in no way a threat
to our constitutional order.3
Thus, I cannot agree that this Court may impose greater
discipline on respondent than the JTC recommended because the
constitution only allows this Court to take those actions that
3
I find it ironic indeed that the majority invokes the
constitutionally safeguarded referendum power as a tool of
electoral accountability, yet in MUCC v Secretary of State,
464 Mich ___ ; ___ NW2d ___ (2001), it subverts the
accountability provided by that power.
7
the JTC has recommended.
sanction
itself,
if
Rather than imposing a harsher
the
Court
believes
that
the
JTC’s
recommended discipline is insufficient, it should remand the
case to the JTC to formulate a more severe sanction, as we
have done in the past.
In the instant case, though, such a
remand would be odd, because respondent had agreed to accept
the JTC’s recommendation, and did not petition this Court to
modify that recommendation.
Cases like the instant case
illustrate that the majority’s misreading of the constitution
will cause unfortunate consequences in judicial discipline
proceedings.
B. THE NEGATIVE CONSEQUENCES
OF
SUA SPONTE INCREASING DISCIPLINE
By departing from the constitutional restriction that
this Court must act only on recommendation by the JTC, the
decision
in
this
case
will
set
in
motion
unfortunate
consequences in judicial discipline cases. It is important in
this case that respondent has not petitioned this Court to
modify
the
JTC’s
recommended
discipline.
Rather,
she
indicated her willingness to accept the thirty-day suspension
the
JTC
recommended.
In
fact,
respondent
only
became
“adverse” to the JTC in this Court when this Court declined to
adopt the recommendation and ordered the parties to argue
whether the thirty-day suspension was appropriate, inherently
ordering them to address this Court’s authority to sua sponte
increase discipline beyond the JTC’s recommendation.
Mich 1201 (2000).
See 463
Thus, the dispute over how this Court may
“modify” the JTC’s recommendations comes not at respondent’s
urging, and not at the JTC’s either, which recommended the
thirty-day suspension, but only upon the majority of this
Court’s own interest in deciding a question that the parties
had not actually presented.
In any event, previously, when a judge consented to the
JTC’s recommended discipline and did not petition this Court
to modify the JTC’s recommendation, this Court has entered the
recommended discipline.
See, e.g., In re Waterman, 461 Mich
1207 (1999); In re Milhouse, 461 Mich 1279 (2000).
However,
after this decision, respondent judges would be well advised
8
to consent to nothing and run the entire gauntlet of available
proceedings because whatever the discipline recommended by the
JTC, this Court is lurking at the end of the line to increase
that discipline if it so chooses.
A respondent judge’s
consent, then, would be futile, as this Court may turn a
recommended censure into a suspension, or a suspension into
removal, regardless of the respondent judge’s willingness to
acknowledge an ethical breach and submit to the discipline the
expert body, the JTC, has recommended.
Instead of relying on the JTC’s expertise, though, the
majority has decided that this Court would do better to take
these
matters
into
its
own
hands.
The
benefits
of
a
negotiated and relatively amicable resolution between the JTC
and the respondent judge, avoiding the hearings and attendant
publicity that contested allegations entail, and thus avoiding
unnecessarily promoting the appearance of impropriety guarded
against by Canon 2A of the Code of Judicial Conduct, are lost
when judges must contest every case or be subject to a
sanction that, before this Court issues the final word in a
discipline case, is unforeseen. Also lost are the benefits of
a judge acknowledging before the JTC and the public that he
has done wrong and voluntarily is taking steps to correct the
problem.
Instead, the new practice of increasing discipline
beyond the JTC recommendations encourages respondent judges to
fight alleged misconduct to the bitter end because the final
sanction that might be imposed in the end would be unknown
until this Court imposed it, when it would be too late for a
respondent
judge
to
have
any
input
or
review
of
that
sanction.4
Even if the Court’s decision did not contravene
the constitution, I would not be able to join a decision that
encourages such practices.
4
The majority discusses respondent’s notice that she
faced an increase in discipline, see slip op at 25-26, but
nevertheless both she, as well as future respondent judges,
would not know, beyond the possibility of removal, what the
upper limit of their discipline will be until it is upon them.
In curious contrast, a convicted felon is at least informed of
the upper limit of the possible sentence for his crime.
9
C.
THE RUNCO DISSENT
Oscar Wilde once wrote that “[c]onsistency is the last
refuge of the unimaginative.”5
majority
is
apparently
If Wilde was correct, then the
attempting
to
flatter
me
by
complimenting my imaginativeness when it asserts that my
dissent from In re Runco, 463 Mich 517; 620 NW2d 844 (2001),
is
not
consistent
with
my
view
in
the
instant
dissent.
However, I must decline this compliment because my Runco
dissent is not inconsistent with my present position, as the
majority claims.
In Runco, this Court entered the discipline recommended
by the JTC. I did not agree with the recommendation, thinking
it was insufficient and preferring the JTC minority position.
See id. at 524.
As a constitutional matter, before my
preferred discipline could have been imposed, the appropriate
action would have been for the Court to have remanded to the
JTC for further consideration, as we have done in the past.
See, e.g., Griffin, supra.
However, because six members of
this Court did not agree with me, the Court adopted the
recommendation and the case was resolved.
The final decision
was made, and no remand was considered.
Thus, because this
Court
was
unanimous
in
concluding
that
respondent
Runco
deserved some level of discipline, and because the case was
going to be resolved, my dissent simply stated the discipline
that I believed would have been appropriate for the JTC to
recommend.
For me to have stated that I would have remanded
would have been futile; instead, I went on record with my
substantive position.
My Runco dissent, then, is consistent
with the instant dissent, and I am not so imaginative as the
majority seems to believe.
Quite imaginative, however, is the majority’s idea that
my voting habits are relevant to our disagreement over the
meaning of art 6, § 30(2).
Though the majority and I may
dispute the meaning of that constitutional provision, as
5
The Relation of Dress to Art, quoted in Flesch, ed,
The New Book of Unusual Quotations (New York: Harper & Row,
1966), p 62.
10
explained, my Runco dissent has no effect on this case, so to
suggest
that
my
voting
habits
are
hypocritical
advances
nothing.
II
For the reasons stated, I respectfully dissent from the
majority
opinion.
By
misreading
the
constitution,
the
majority transforms our judicial discipline system into a
system that encourages members of the state judiciary to
contest allegations of misconduct and leaves judges in the
precarious position of not knowing the upper limit of their
potential discipline before that discipline becomes final and
irrevocable, except that they may be removed from the bench.
I do not believe that the great mass of the people who
ratified the constitutional language creating our judicial
discipline system intended the system to so operate.
the
Michigan
Constitution
provides
for
a
Rather,
system
that
encourages judges to acknowledge and resolve their ethical
mistakes.
Also, our system allows those judges that do
contest their alleged misconduct to arrive at this Court,
before it makes a final decision, knowing that the harshest
discipline they face is the discipline recommended by the JTC,
and knowing that if the recommendation does not suit this
Court, it will remand the case to allow the JTC and the
respondent
judge
an
opportunity
to
reach
an
alternate
solution, or at least to allow the respondent judge to know
what he faces before this Court makes a final decision.
I
would remain true to this constitutional design, and therefore
I would either accept the JTC’s recommended discipline or
reject the recommendation and remand the case to the JTC for
further consideration.
KELLY , J., concurred with CAVANAGH , J.
11
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