IN RE HON SUSAN CHRZANOWSKI
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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 DECEMBER 28, 2001
In re HON. SUSAN R. CHRZANOWSKI
JUDGE OF THE THIRTY-SEVENTH DISTRICT COURT,
WARREN, MICHIGAN.
No. 116721
______________________________
BEFORE THE ENTIRE BENCH
MARKMAN, J.
The Judicial Tenure Commission (JTC) has recommended that
we suspend respondent, 37th District Court Judge Susan R.
Chrzanowski, for twelve months without pay for misconduct in
the performance of her judicial duties.
Respondent has filed
a petition to reject this recommendation. We affirm the JTC’s
findings, and conclude that the JTC’s recommendation of a one
year suspension of respondent is a reasonable one.
Pursuant
to MCR 9.225, we modify the recommendation of the JTC to
require
a
six-month
suspension
without
pay,
beginning
January 1, 2002, in order to accord respondent partial credit
for the seventeen-month interim suspension with pay that she
has already served.
I. FACTS
AND
PROCEDURAL HISTORY
The bases for the JTC’s complaint concern two aspects of
respondent’s conduct between April 1998 and August 1999.
First,
on
a
substantial
number
of
occasions,
respondent
appointed then-attorney Michael Fletcher to represent indigent
defendants, and presided over such cases, as well as presided
over a criminal case in which Fletcher was retained counsel,
without disclosing that she was engaged at the time in an
intimate relationship with Fletcher.
Second, respondent made
false statements to police officers investigating the August
16, 1999, murder of Leann Fletcher, Michael Fletcher’s wife.1
Respondent and Fletcher met in 1996 and became friends in
1997.
In February of 1998, Fletcher entered the private
practice of law.
Respondent began assigning him to represent
indigent criminal defendants in misdemeanor cases in her
court.
intimate
In July of 1998, respondent and Fletcher began an
relationship.
Throughout
1
the
course
of
their
In July 2000, a trial court convicted Fletcher of
second-degree murder, finding that he shot and killed his
wife, Leann.
2
subsequent relationship, between July 1, 1998, and August 15,
1999, respondent assigned Fletcher to fifty-six cases. Fifty
five of these cases, without a city attorney being present,
resulted in guilty pleas accepted by respondent.
These
appointments generated in excess of $16,000 in income for
Fletcher.
In addition, respondent presided over People v
Donald Thomas Richards, Case No W224162, in which Fletcher was
retained counsel.
Respondent entered an order dismissing the
case against Fletcher’s client. Respondent failed to disclose
her ongoing relationship with Fletcher in any of these cases.
On August 16, 1999, Fletcher shot and killed his wife,
Leann.
Sometime
after
committing
the
murder,
Fletcher
telephoned respondent and left her a message. In the message,
Fletcher asked respondent to call him when she returned home.
Respondent received this message during the pre-dawn hours of
August 17.
Respondent then paged Fletcher, but received no
response.
She then left Fletcher a message, and he returned
the
approximately
call
respondent
that
he
one-half
could
“horrible” had happened.
not
hour
talk,
later.
but
that
He
told
something
In the morning, respondent was
informed by a co-worker that Leann Fletcher had committed
suicide. Respondent went home early because she was too upset
to complete her docket.
3
During the initial investigation of the murder, Hazel
Park Police officers discovered evidence that respondent had
been engaged in an intimate relationship with Fletcher.
August 17,
On
the police interviewed respondent at her home.
The interviewing detective asked respondent whether she had
been involved with Fletcher. Judge Chrzanowski responded that
she
had.
When
questioned
about
the
length
of
the
relationship, respondent indicated that the relationship had
begun in February of 1999 and had lasted only until March of
1999.
The detective also asked respondent if she had spoken
to Fletcher since the death of Leann,
that
she
had
not.
Because
and respondent stated
respondent
was
emotionally
distraught, the interview ceased.
On August 19, respondent went to the Hazel Park police
station for a second interview.
At this time, respondent
indicated that her relationship with Fletcher had actually
begun in August of 1998 and continued sporadically until
August 15, 1999.
Respondent also acknowledged, contrary to
her August 17 statement, that she had spoken to Fletcher
following his wife’s death.
In September of 1999, the JTC received a request from
Macomb County Prosecutor Carl Marlinga for an investigation
into
respondent’s
appointment
4
of
Fletcher
during
their
relationship.
Following respondent’s replies, the JTC filed
Formal Complaint No. 65 on April 14, 2000.
First, the
complaint asserted that respondent had engaged in misconduct
by appointing Fletcher to appear in cases before her without
disclosing their relationship.
Second, the complaint alleged
that respondent made false statements to Hazel Park police
officers in the August 17 interview concerning the murder of
Fletcher’s wife.
On April 26, 2000, this Court appointed former Justice
Charles
Levin to serve as master in this case.
Meanwhile,
respondent testified at the murder trial of Fletcher and
indicated that she had made false statements during the
initial police inquiry.
The JTC then filed a petition for
interim suspension pursuant to MCR 9.220.2
On July 28, 2000,
this Court entered an order suspending respondent with pay.
In re Chrzanowski, 463 Mich 1201 (2000).
II. MASTER ’S
FINDINGS
After conducting a formal hearing, the master issued his
report on December 7, 2000.
He found that respondent had
appointed Fletcher as counsel for indigent criminal defendants
in matters over which she presided, and had approved payment
2
MCR 9.220 provides that the JTC “may petition the
Supreme Court for an order suspending a judge from acting as
a judge until final adjudication of a complaint.”
5
of legal fees to Fletcher during the period between April 1998
and August 1999, when she and Fletcher had been engaged in an
intimate relationship.
The master also found that Fletcher
had received “a disproportionate number” of appointments in
comparison
with
other
attorneys
who
practiced
before
respondent. He concluded that respondent violated the Code of
Judicial Conduct by making these appointments to Fletcher.3
He stated that a judge is enjoined by this provision from
allowing social or other relationships to influence conduct or
judgment, and is further prohibited from making appointments
on the basis of considerations other than merit.4
The master
also found that such appointments had “the appearance of
impropriety”
judiciary.”5
and
“erode[d]
public
confidence
in
the
Nonetheless, the master concluded that he could
3
Canon 2(C) provides: “A judge should not allow family,
social, or other relationships to influence judicial conduct
or judgment.”
4
Canon 3(B)(4) provides: “All appointments shall be
based upon merit.”
5
Canon 2(A) provides:
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.
6
not recommend discipline because the JTC “has not promulgated
a policy respecting disproportionate assignments to close
personal friends of the judge, and consequently the Supreme
Court has not been called upon to enunciate a rule of law
. . . justifying a recommendation for the imposition of
discipline.”
Moreover, the master determined that, because
respondent had a subjective good-faith belief that she could
impartially hear cases in which Fletcher appeared, she was not
required by the Code of Judicial Conduct, or by MCR 2.0036 to
6
MCR 2.003 provides:
(A) Who May Raise.
A party may raise the
issue of a judge’s disqualification by motion, or
the judge may raise it.
(B) Grounds. A judge is disqualified when the
judge cannot impartially hear a case, including but
not limited to instances in which:
(1) The judge is personally biased or
prejudiced for or against a party or attorney.
* * *
(5) The judge knows that he or she . . . has
an economic interest in the subject matter in
controversy or in a party to the proceeding or has
any other more than de minimis interest that could
be substantially affected by the proceeding.
(D) Remittal of Disqualification.
If it
appears
that
there
may
be
grounds
for
disqualification, the judge may ask the parties and
their lawyers to consider, out of the presence of
the judge, whether to waive disqualification. If,
following
disclosure
of
any
basis
for
7
disclose the relationship with Fletcher, or to raise on her
own the matter of her disqualification.
The master concluded
that he was unable to recommend disciplinary action against
respondent for this conduct.
Concerning allegations that respondent had made false
statements to the police, the master determined that the
statements were “inaccuracies.”
However, he concluded that
“[t]he
detail,
substance,
responses
was
if
not
accurate”
the
and
of
“[v]iewed
as
Chrzanowski’s
a
whole,
information conveyed to the officers was accurate.”
the
The
master found “as a matter of law” that, “unless a statement by
a
judge
is
a
lie,
i.e.,
‘a
false
statement
made
with
deliberate intent to deceive,’ there is not misconduct or
conduct clearly prejudicial to the administration of justice
within the meaning of Const 1963, art 6, § 30, justifying a
recommendation of discipline.”
respondent
“did
not
make
The master concluded that
statements
to
the
police
with
deliberate intent to deceive, and did not lie to the police.”
On
the
basis
of
these
findings,
the
master
recommended
disqualification other than personal bias or
prejudice concerning a party, the parties without
participation by the judge, all agree that the
judge should not be disqualified, and the judge is
then willing to participate, the judge may
participate in the proceedings.
The agreement
shall be in writing or placed on the record.
8
dismissal of the charges concerning respondent’s statements.
III. JUDICIAL TENURE COMMISSION
The JTC adopted most of the findings of fact of the
master, but not his conclusions of law.7
The JTC disagreed
with the master’s conclusion that respondent did not have a
duty to disclose her relationship with Fletcher when she
appointed him to represent indigent defendants, or where he
appeared before her as retained counsel.
Further, the JTC
disagreed with the master’s conclusion that “as a matter of
law,” in order for the false statements to have constituted
judicial
misconduct,
they
had
to
be
what
the
master
characterized as “lies.”
7
All eight members of the JTC panel found misconduct on
the part of respondent. There was unanimity that respondent’s
assignments to Fletcher and his appearances before her while
the two were engaged in a sexual relationship was improper,
and constituted misconduct in office and conduct clearly
prejudicial to the administration of justice. A five-member
majority recommended that respondent be suspended for one year
without pay. Commissioners James Kingsley and Henry Baskin
agreed with most of the findings and recommendation of a one
year suspension, but dissented from the finding that
respondent had made “false statements to the police.”
Commissioner Pamela Harwood wrote separately and agreed with
the majority findings concerning the appointments without
disclosure. However, she also dissented from the finding that
respondent had made false statements to the police.
Commissioner Harwood recommended that respondent be suspended
for forty-five to ninety days without pay, and that she be
returned to active judicial service upon her reimbursement to
the 37th District Court funding unit for ninety days of pay.
9
After setting forth the factors promulgated by this Court
in In re Brown, 461 Mich 1291, 1292-1293 (1999) (Brown I), see
also In re Brown (After Remand), 464 Mich 135, 138; 626 NW2d
403 (2001) (Brown II), the JTC proceeded to find factors one
through three, and five, relevant to respondent’s conduct.8
With
regard
to
factor
one,
the
JTC
determined
8
that
In Brown I and II, we stated that, in making judicial
disciplinary recommendations, the JTC should consider:
(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
. . . . [Brown I, supra at 1292-1293; Brown II,
supra at 138.]
10
respondent’s
fifty-six
appointments
to
Fletcher
over
the
course of seventeen months while the two were engaged in an
intimate relationship, and her failure to disclose that fact,
constituted a “pattern or practice” of misconduct.9
With
regard to factor two, the JTC observed that this misconduct
constituted “misconduct on the bench.”
With regard to factor
three, the JTC concluded that, although no evidence existed
that respondent’s conduct resulted in any actual prejudice to
the
administration
of
justice,
such
conduct
did
have
a
negative effect on the appearance of propriety in judicial
decision making and the integrity of the judicial office in
general.10
With regard to factor five, the JTC concluded that
respondent’s
misconduct
“spontaneous,”
because
was
she
“deliberate”
had
as
considered
opposed
whether
to
the
appointments to Fletcher were improper and had reached the
9
Respondent argues that the fact that the proceedings
over which she presided were “nonadversarial” in nature, i.e.,
that there was no prosecuting attorney present during
Fletcher’s representation of the indigent defendants, somehow
lessened her duty to disclose her relationship with Fletcher.
We disagree with this argument because, as the JTC noted,
despite respondent’s apparently fair disposition of these
cases, her conduct did have a negative effect on the
appearance of propriety in judicial decision making, and the
appearance of integrity of the judicial office in general.
10
The JTC acknowledged that respondent had fairly
decided the issues before her in the cases in which she had
appointed Fletcher.
11
subjective conclusion that they were not. In this regard, the
JTC found that respondent’s subjective conclusions about the
propriety of presiding over these cases did “not negate the
fact that the relationship existed and opposing counsel and
others concerned with the integrity of the judiciary should
have been so advised.”
With respect to factor five, the JTC
also determined that respondent’s “false statements” to the
police appeared calculated to deflect any suspicion that she
was the motive behind Leann Fletcher’s murder.
concluded
that
the
fact
that
respondent
The JTC
corrected
her
erroneous statements “within a matter of days . . . [did] not
diminish the gravity of her having made statements . . . on a
material factor—the motive for the murder of Leann Fletcher.”
In addition to these four factors, the JTC considered
four additional factors.11
First, the JTC concluded that
11
As this Court noted in Brown I, supra at 1295, the JTC
“should consider [the factors specified] and other appropriate
standards that it may develop” when making recommendations.
Here, the JTC additionally considered:
(1) The judge’s conduct in response to the
commission’s inquiry and disciplinary proceedings.
Specifically, whether the judge showed remorse and
made an effort to change his or her conduct and
whether the judge was candid and cooperated with
the commission;
(2)
The
reputation;
judge’s
discipline
12
record
and
respondent had reacted to the JTC investigation and the
subsequent disciplinary proceedings candidly, cooperatively,
and
in
good
faith.
Second,
concerning
the
appointment
procedures, the JTC found that respondent had instituted a
“blind draw rotation system” subsequent to the investigation.
According to the JTC, this demonstrated respondent’s ability
to improve her conduct. Further, concerning her statements to
the
police,
the
JTC
found
that,
except
for
the
first
interview, respondent had fully cooperated with authorities in
the prosecution of Fletcher.
The JTC also determined that
respondent had no prior disciplinary record, and that there
was
considerable
evidence
of
reputation in the community.
her
competency
and
good
Finally, the JTC found that
respondent’s relatively short judicial career constituted a
mitigating circumstance, and that there was no reason to
believe that she would repeat the misconduct.
We now address
(3) The effect the misconduct had upon the
integrity of and respect for the judiciary;
(4) Years of judicial experience. [In
Chrzanowski, Decision and Recommendation of
Judicial Tenure Commission, April 9, 2001, at
21, citing American Judicature Society,
Judicial Conduct Commissions Work (1999), pp
16.]
re
the
19
How
15
We find the application of each of these factors to be
reasonable in the present context.
13
the issues raised by respondent in her petition to reject the
JTC’s recommendation.
IV. STANDARD
OF
REVIEW
We review the recommendations of the JTC de novo.
In re
Hathaway, 464 Mich 672, 684; 630 NW2d 850 (2001); see also In
re Ferrara, 458 Mich 350, 358-59; 582 NW2d 817 (1998).
also review the JTC’s findings of fact de novo.
We
In re
Jenkins, 437 Mich 15, 18; 465 NW2d 317 (1991); see also In re
Somers, 384 Mich 320, 323; 182 NW2d 341 (1971).
V. ANALYSIS
Respondent first contends that the JTC’s conclusion that
her
statements
were
false
is
contrary
to
the
master’s
findings, and that the JTC should have deferred to such
findings.
Second, respondent argues that the JTC’s lack of
deference to the findings of the master was violative of her
right to due process of law.
Specifically, she contends that
the JTC’s combined function as an investigatory, as well as an
adjudicatory body, created an actual risk of bias in the
proceedings
Third,
contrary
respondent
to
her
contends
entitlement
that
the
to
JTC’s
due
process.
recommended
suspension of twelve months without pay is disproportionate.
We will address these issues in turn.
A.
THE JTC’S DEFERENCE
TO THE
14
MASTER ’S FINDINGS
We do not believe that the JTC disputed the factual
findings of the master concerning respondent’s statements to
the police.12
Rather, the JTC and the master agreed that
respondent had initially indicated that her relationship with
Fletcher
started
in
February
1999
and
ended
one
month
afterward, when in fact, as respondent later acknowledged,
this relationship lasted from January 1998 to August 1999.
Further, both the master and the JTC agreed that respondent
had initially indicated that she did not speak with Fletcher
on August 17, 1999, following his wife’s death, when in fact,
as respondent later acknowledged, she did speak with him.
Nonetheless, respondent questions the JTC’s conclusions
of fact concerning these statements. Specifically, respondent
challenges the JTC’s conclusions that the statements were
false in light of the master’s conclusion that, because the
statements
interview,
were
taken
rather
from
than
a
from
“narrative”
a
direct
of
the
police
transcript
of
respondent’s statements, the “substance if not the detail” of
respondent’s statements “was accurate.”13 Respondent therefore
12
As noted in the JTC’s brief, “[The JTC] did not
overrule any of the master’s findings of fact. The [JTC] did,
however, accord different weight than the master did and, at
times, drew different inferences and conclusions.”
13
with
Concerning the length of respondent’s relationship
Fletcher,
the
master
stated
that
“[respondent]
15
contends that the JTC exceeded its authority in determining
that the statements were false.
In response to this argument, the JTC asserts that it
reviews the findings and conclusions of law of the master de
novo, and that the JTC is not compelled to defer to the
master’s findings of fact.
by
the
Michigan
We agree.
Constitution
The JTC is established
and
vested
with
the
responsibility of determining whether to recommend to this
Court that a judge be disciplined for “misconduct in office
.
.
.
or
conduct
that
is
clearly
prejudicial
to
the
administration of justice.” Const 1963, art 6, § 30. Section
30(2) further provides that on recommendation of the JTC,
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
acknowledged, during the interview, when identifying papers
seized at the Fletcher home, that her relationship with
Fletcher stretched back to at least November, 1998.” With
respect to the contact with Fletcher, the master stated that
“[respondent] provided the police with the substance of the
communication from Fletcher” and “[i]t was of no importance
whether Fletcher had spoken directly to her or by voice mail.”
Thus, according to the master, even though respondent did not
speak truthfully, i.e., that the relationship had begun in
1998, and that she had in fact spoken to Fletcher, the
information she provided implicitly acknowledged the length of
the relationship and the “substance” of her conversation with
Fletcher, and was therefore accurate.
16
to the administration of justice.
The supreme
court shall make rules implementing this section
and providing for confidentiality and privilege of
proceedings.
Thus, pursuant to this provision, it is the JTC’s, not the
master’s conclusions and recommendations that are ultimately
subject to review by this Court.
Additionally, § 30 provides
that the Supreme Court shall make rules implementing the JTC’s
authority and
procedures.
Subchapter 9.200 of the Michigan
Court Rules was promulgated for this purpose.
As to the
actual procedures in decision making, the court rules clearly
indicate that the JTC has authority to review the master’s
findings de novo. MCR 9.221 governs the final decision of the
JTC.
In subsection (A) it provides in relevant part:
The affirmative vote of 5 [JTC] members who
have considered the report of the master and
objections and who were present at an oral hearing
provided for in MCR 9.217 . . . is required for a
recommendation . . . . [Emphasis supplied.]
Accordingly, all that is needed for the JTC to make a valid
recommendation is that it consider the report of the master
and objections, and that a five-member majority agree on the
facts and the recommended discipline. Further, subsection (B)
of that court rule outlines procedures with regard to the
JTC’s recommendation itself:
fact
The commission must make written findings of
and conclusions of law along with its
17
recommendation for action with respect to the
issues of fact and law in the proceedings, but may
adopt the findings of the master, in whole or in
part, by reference. [Emphasis added.]
Although this provision addresses creation of the record, its
language provides further explication of the JTC’s reviewing
authority.
must
do,
The provision distinguishes between what the JTC
to
wit,
“make
written
findings
of
fact
and
conclusions of law”, and what the JTC may do, to wit, “adopt
the findings of the master . . .”
Court rules, like statutes,
are to be interpreted in accordance with their plain meaning.
Kelley v Mich Public Serv Comm, 392 Mich 660, 668; 221 NW2d
299 (1974); see also Neal v Oakwood Hosp Corp, 226 Mich App
701, 722; 575 NW2d 68 (1997).
Giving this court rule its
plain meaning, we conclude that the JTC is not compelled to
defer to the master’s findings of fact, but rather may review
the findings of fact, and the conclusions of the master, de
novo.14
In
so
concluding,
we
agree
with
the
JTC
that
respondent’s statements were “false” and “deliberately made,
14
While we conclude that, where a master is appointed,
the JTC may exercise de novo review of the record, it must,
like all other reviewing tribunals apply the standard of proof
applicable in civil proceedings:
a preponderance of the
evidence standard. MCR 9.211 (“the commission or the master
shall proceed with a public hearing which must conform as
nearly as possible to the rules of procedure and evidence
governing the trial of a civil action”); see also In re Seitz,
441 Mich 590, 593; 495 NW2d 559 (1993).
18
and with a full understanding of their implication,” and we
disagree with the master that such statements were mere
“inaccuracies”, which did not rise to the level of judicial
misconduct.
B. RESPONDENT ’S DUE PROCESS CLAIM
Respondent further claims that the JTC’s “simultaneous”
role as a prosecutorial, investigatory, and adjudicatory body
is violative of her due process rights. In particular, Judge
Chrzanowski asserts that the JTC’s failure to defer to the
factual findings of the master demonstrates that it could not
separate itself from the fact-finding function, and therefore,
that
it
could
discipline.
not,
and
did
not
impartially
recommend
We conclude that, while the JTC accepted the
pertinent findings of fact of the master, it nonetheless based
its recommendation upon a different characterization of the
facts, to wit, that respondent’s statements to the officers
were false, rather than merely “inaccurate”.
On the basis of
our review of the record, we do not disagree with this
conclusion, and, for the reasons set forth below, we hold that
the JTC afforded respondent due process.
It
is
uncontroverted
that
judges,
like
all
other
citizens, have protected due process interests under the
Michigan Constitution, Const 1963, art 1 § 17, and the Due
19
Process Clause of the Fourteenth Amendment of the United
States Constitution.
The scope and meaning of due process
protections in circumstances where there is some commingling
of prosecutorial, investigatory, and adjudicatory roles has
been
discussed
by
the
United
States
Supreme
circumstance similar to the present case.
Court
in
a
In Withrow v
Larkin, 421 US 35; 95 S Ct 1456; 43 L Ed 2d 712 (1975), the
United States Supreme Court held that there is no broad
prohibition
against
members
of
an
administrative
agency
investigating facts, instituting proceedings, and then making
the
necessary
Wisconsin
adjudication.
where
the
The
Wisconsin
Withrow
Medical
case
arose
Examining
in
Board
commenced an investigation to determine whether a doctor had
committed certain illegal acts. The board subsequently decided
to
hold
a
hearing
to
determine
whether
the
doctor
had
committed the alleged acts and whether to suspend the doctor’s
license temporarily.
Id. at 39-41.
The Court held that the
board could adjudicate the same charges it had investigated
and decided to prosecute without violating the doctor’s due
process rights. Id. at 47-55.
The Court stated:
The contention that the combination of
investigative
and
adjudicative
functions
necessarily creates an unconstitutional risk of
bias in administrative adjudication has a much more
difficult burden of persuasion to carry. It must
20
overcome a presumption of honesty and integrity in
those serving as adjudicators; and it must convince
that, under a realistic appraisal of psychological
tendencies
and
human
weakness,
conferring
investigative and adjudicative powers on the same
individuals poses such a risk of actual bias or
prejudgment that the practice must be forbidden if
the guarantee of due process is to be adequately
implemented. [Id. at 47; see also McIntyre v Santa
Barbara Co Emp Ret System, 91 Cal App 4th 730; 110
Cal Rptr 2d 565, 569 (2001) (the combination of
investigative and adjudicative functions does not,
without more, constitute a due process violation);
Marshall v Cuomo, 192 F3d 473, 484-485 (CA 4,1999)
(due process rights are not violated simply by the
combination of the investigatory, prosecutorial,
and adjudicatory functions in one agency, but
rather by actual bias or the high probability of
bias); Matter of Inquiry Concerning a Judge, 265 GA
843; 462 SE2d 728 (1995) (the combination of
investigative and adjudicative functions does not,
per se, violate the requirements of due process).
Notably,
the
Court
further
observed
that,
while
the
combination of investigative and adjudicative functions is
not, without more, a due process violation, this “does not, of
course, preclude a court from determining from the special
facts and circumstances present in the case before it that the
risk of unfairness is intolerably high.”
58.
Withrow, supra at
However, the Court found no such special facts and
circumstances with regard to the professional discipline board
in Withrow.
This Court also has had occasion to address this due
process issue especially in reference to the JTC and has
21
adopted the Withrow standards.15
In In re Del Rio, 400 Mich
665, 690; 256 NW2d 727 (1977), we noted that “the authority is
legion in support of the proposition that combining the
investigative and adjudicative roles in a single agency does
not
necessarily
violate
due
process
in
administrative
adjudications such as judicial fitness hearings.”
Id., see
also In re Moore, 464 Mich 98, 128-131; 626 NW2d 374 (2001).
Further, we held in In re Mikesell, 396 Mich 517, 530; 243
NW2d 86 (1976), that “the combination of investigative and
adjudicative functions does not, without more, constitute a
due process violation . . . .” Quoting from Withrow, supra at
58.
Thus, in accordance with Withrow, this Court held that a
court should examine the matter to see if there are “special
facts and circumstances present in the case before it” that
present an “intolerably high” risk of unfairness.
15
Id.
In Brown I, we noted that the JTC’s application of the
listed factors to judicial misconduct proceedings, by
“ensur[ing] a consistent rule of law,” would assist in
maintaining due process rights for JTC respondents. Brown I,
supra at 1295. We recognized that “[d]ue process of law is
essentially the legal equivalent of procedural fairness . . .
[and] a concept that ‘calls for such procedural protections as
the particular situation demands.’”
Id., citing Mathews v
Eldridge, 424 US 319, 333-334; 96 S Ct 893; 47 L Ed 2d 18
(1976), and In re Brock, 442 Mich 101, 110-111; 499 NW2d 752
(1993).
As we have indicated in this opinion, the JTC
appropriately analyzed respondent’s conduct in light of the
Brown factors, and in doing so, afforded respondent adequate
due process protection.
22
We find, in reliance upon Withrow and the Michigan
authorities, that the procedures followed by the JTC in
reaching its decision conformed to the constitution and the
court rules, and afforded respondent sufficient due process
protections.
We further conclude that there were no special
facts or circumstances which would suggest that the risk of
unfairness here, if indeed there was any, was “intolerably
high.”
Mikesell, supra at 531.
As to the procedures, first,
pursuant to MCR 9.207(B)(3), the JTC conducted a preliminary
investigation
to
determine
whether
conduct warranted further action.
respondent’s
alleged
Second, after determining
that sufficient evidence of misconduct existed, the JTC filed
a formal complaint pursuant to MCR 9.208. Third, a master was
appointed,16 notice was given, and a hearing was then afforded
respondent under MCR 9.210(A) and MCR 9.211, with the JTC’s
executive director serving as prosecutor-examiner under MCR
9.201(6).
Fourth, after the hearing, when objections were
lodged against the master’s findings, the examiner under MCR
9.216 issued such objections in writing, with a supporting
brief.
MCR 9.216.
Chrzanowski
should
Finally, the JTC’s conclusion that Judge
be
disciplined
16
was
ultimately
just
a
Although it is not required that a master preside at
a disciplinary hearing, the JTC under MCR 9.210 may request
this Court to appoint a master, as it did in this case.
23
recommendation to this Court that we are charged to review de
novo
pursuant
to
deciding
what
discipline,
if
any,
is
appropriate.
As in Withrow, the JTC’s investigative and
adjudicative
procedures
are
functionally
additionally,
as
from
Withrow,
distinct
in
separate;
which
the
investigation and the decision were undertaken by the same
Medical Examining Board, here the master, the examiner, and
the JTC panel are separate entities.
If the board in Withrow
did not violate due process rights by investigating, and then
adjudicating claims, it can hardly be argued that the JTC’s
procedures violated due process.
Further, a majority of the
members of the JTC are judges, and all the members who
ultimately recommend discipline are assumed to be fair and
impartial.
We conclude then that there was no actual bias in
the JTC’s decision.
findings
de
It had authority to review the master’s
novo,
and
reasonably
determined,
by
a
preponderance of the evidence, that respondent had in fact
made false statements.
We find these procedures adequately
separated the JTC’s investigative and adjudicative functions.17
C. THE PROPORTIONALITY
OF THE
17
JTC’S RECOMMENDATION
There were three levels of review in the instant case:
(1) the master’s findings and conclusions issued after the
public hearing, (2) the JTC’s de novo findings and
recommendations, and (3) this Court’s de novo review.
24
The JTC has recommended that respondent be suspended for
one year without pay.
previous
JTC
Respondent argues that, in light of
recommendations,
disproportionate.
this
sanction
is
Respondent cites several opinions written
before Brown I and Brown II in which various sanctions were
meted out for incidents of judicial misconduct.
However, as
Brown I indicated, review by this Court of previous judicial
disciplinary proceedings has sometimes been “hampered because
the standards by which the JTC [produced] its recommendations
[were not always] apparent.”
Brown I, supra at 1292.
Rather
than analyze each of the cases raised by respondent in her
argument challenging the proportionality of the recommended
sanction,
we
proportionality
have
of
chosen
her
instead
sanction
application of the Brown factors.
in
to
light
examine
of
the
the
JTC’s
Here, as outlined in part
III, the JTC set forth its analysis in the context of these
factors.
We find this analysis to be reasonably done and
therefore accord the recommendations of the JTC considerable
deference.18
18
Respondent argues that the inordinate amount of
publicity surrounding her case influenced the JTC to recommend
a harsher sanction than deserved. We disagree. As noted in
this opinion, Canon 2(A) provides that “[a] judge must avoid
all impropriety and appearance of impropriety,” and “[a] judge
must expect to be the subject of constant public scrutiny.”
25
This Court assesses the proportionality of the JTC’s
recommendations of discipline, with the goal of “maintain[ing]
the honor and the integrity of the judiciary, deter[ring]
similar
conduct,
justice.”
and
further[ing]
the
administration
of
In re Hocking, 451 Mich 1, 24; 546 NW2d 234 (1996).
“[T]he purpose of judicial discipline is not to punish but to
maintain the integrity of the judicial process.” In re Moore,
supra at 118.
We conclude that the JTC’s recommendation of a
one-year suspension of respondent without pay was a clearly
reasonable one.
However, the JTC could not have known, and thus did not
consider,
the
overall
length
of
respondent’s
interim
suspension, which has continued until the issuance of this
opinion.
to
the
interim
We believe that some consideration should be given
chastening
suspension
effect
from
of
respondent’s
judicial
suspension has been with pay.
duties,
seventeen-month
although
such
In a democratically elected
These provisions embody the concept that judges are
particularly susceptible to public scrutiny, and that they
must take appropriate account of the effects of their conduct
upon the public’s perception of the courts and the justice
system. While we do not agree that the JTC’s recommendation
here was unduly influenced by the media’s focus, we
nevertheless observe that caution must invariably be exercised
by the JTC (as well as by this Court) to ensure that the
attentions of the media upon particular judicial misconduct
are placed in an appropriate perspective.
26
judicial system, such as we have in Michigan, suspension of a
judge from judicial activities is itself a sanction with
considerable consequences, and we believe that respondent has
incurred many of those consequences. We conclude that in this
unique case it is reasonable to accord respondent credit for
six
months
Accordingly,
of
her
pursuant
seventeen-month
to
interim
9.225,19
MCR
we
suspension.
modify
the
recommendation of the JTC only to accord respondent credit for
six months of the seventeen-month interim suspension that she
has already served.20
Therefore, we direct the following
disciplinary action in this case:
This cause having been
by the recommendation of
Commission and having been
counsel, it is ordered that
19
brought to this Court
the Judicial Tenure
briefed and argued by
Respondent Hon. Susan
MCR 9.225 provides:
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
the commission. [emphasis added.]
See also In re Hathaway, 464 Mich 672, 685; 630 NW2d 850
(2001).
20
We concur with the JTC that respondent should not be
permanently removed from the bench. We believe that evidence
of respondent’s reputation and her past conduct on the court,
apart from that at issue in the present case, suggest that she
possesses the ability to serve honorably upon the bench, and
to fully live up the Code of Judicial Conduct.
27
R. Chrzanowski shall be suspended from the
discharge of all judicial and administrative
duties, without pay, for a period of twelve months.
However, respondent shall receive credit for six
months served during the period of her interim
suspension. Respondent shall serve the remainder
of her twelve-month suspension, six months without
pay, to begin January 1, 2002.
After June 30,
2002, respondent may return to the bench of the 37th
District Court to serve the remainder of her term.
Respondent’s conduct on the bench was unbecoming of the
office
that
she
holds.
Her
actions
undermined
public
confidence in the integrity and impartiality of the judiciary,
and were prejudicial to the administration of justice.
1963, art 6, § 30.
Const
“As the cornerstone of our tripartite
system of government, the judiciary has a public trust to both
uphold and represent the rule of law.”
Hocking, supra at 6.
“[J]udges . . . are bound to conduct themselves with honor and
dignity.”
Id.
We conclude, as did the JTC, that respondent’s conduct
was
violative
of
the
standards
established
by
the
constitution, the Michigan Court Rules, and the Code of
Judicial Conduct.
being
disciplined
We emphasize, moreover, that respondent is
only
for
her
improper
appointments
of
counsel, her failure to disclose those appointments, and for
her false statements to the interviewing officers.
VII. CONCLUSION
We conclude that the JTC reasonably determined that
respondent’s
actions
in
the
28
foregoing
case
constituted
judicial misconduct sufficient to subject her to the sanctions
set forth in this opinion.
Pursuant to MCR 7.317(C)(3), the
Clerk is directed to issue the judgment order forthwith.
CORRIGAN , C.J., and CAVANAGH , WEAVER , KELLY , TAYLOR , and YOUNG ,
JJ., concurred with MARKMAN , J.
29
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