IN RE HON JAMES P NOECKER
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Michigan Supreme Court
Lansing, Michigan
Chief Justice:
Opinion
Justices:
Clifford W. Taylor
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
FILED FEBRUARY 1, 2005
In re:
The Honorable JAMES P. NOECKER,
Judge 45th Circuit Court
Centreville, MI 49032,
No. 124477
_______________________________
BEFORE THE ENTIRE BENCH
KELLY, J.
This appeal is from the recommendation of the Judicial
Tenure Commission (JTC) that respondent 45th Circuit Judge
James P. Noecker be removed from office and required to pay
the costs of his prosecution.
We determine that respondent
should be removed from office but that costs should not be
assessed against him.
I. Factual Background
On March 12, 2003, respondent was involved in a motor
vehicle accident in Sturgis, Michigan.
The vehicle he was
driving turned from a road into the parking lot of a store,
the Klinger Lake Trading Post.
According to witnesses,
respondent's vehicle neither accelerated nor decelerated.
Rather, it maintained a speed of approximately three to
five
miles
an
hour.
The
vehicle
hit
the
corner
of
the
store, causing significant damage to the building and to
the inventory in the store.
Respondent
emerged
from
the
vehicle,
store, and asked if anyone had been injured.
entered
the
The store's
proprietor, Mrs. Pankey, was upset and repeatedly stated
that she wanted someone to find her husband, who was ice
fishing on a local lake.
Although respondent lacked any
information to assist him in the search for Mr. Pankey
beyond the name of the lake, respondent left the scene of
the accident.
He claimed that he did so to help Mrs.
Pankey.
No one indicated where on the lake Mr. Pankey was
fishing.
Respondent believed that he was near a fishing
access, but was unsure where the access was located. Mrs.
Pankey
testified
that
husband looked like.
Pankey was driving.
respondent
did
not
know
what
her
He did not know what vehicle Mr.
He did not even know the color of the
coat Mr. Pankey was wearing.
Respondent
testified
that,
in
search, he first drove to the lake.
the
course
of
his
He got out of the car
to look around and saw two objects he presumed were people
on the far side of the lake.
He then spent several minutes
2
considering whether he could walk across the ice.
Deciding
that it was unsafe, he returned to his vehicle.
Respondent said that he then stopped at another point
along the lake, walked down to the water’s edge, and tried
unsuccessfully to find an access point.
He saw five or six
people in a cove and again considered whether it was safe
to walk out on the ice.
Deciding that it was unsafe, he
drove farther around the lake to a gated area known as Camp
Fort Hill.
Unable to enter, he started back to the store,
but decided instead to drive to his residence.
On arriving home, respondent told his wife about the
accident, then called Mrs. Pankey.
wanted
to
ask
Mrs.
Pankey
if
He testified that he
she
had
heard
from
her
husband, and, if not, he wanted to know the location of the
lake’s access point.
chance
to
ask
identified
hysterically.
those
He testified that he never got a
questions,
himself,
Mrs.
because
Pankey
as
began
soon
as
he
screaming
She kept repeating, "You get back here."
He
told her he would return.
Respondent then learned that the state police were en
route to his house to speak with him.
return to the store.
blood pressure.
He decided not to
He testified that his wife took his
The systolic reading was 220.
Respondent
did not call his doctor or the emergency room.
Rather, he
testified, he poured and drank three to five ounces of
3
vodka.
He testified that he knew that the police were
coming to speak with him about the accident.
But he stated
that the effect that his consumption of alcohol would have
on the officers’ investigation of his car accident did not
trouble him at the time.
When the police arrived at his home, respondent told
them that he had consumed three to five ounces of vodka
after returning from the search for Mr. Pankey.
agreed to take a preliminary breath test.
was
administered
accident.
approximately
two
Respondent
The breath test
hours
after
the
The reading was 0.10.1
A state trooper who investigated the accident at the
scene, Craig Wheeler, testified that he was concerned that
alcohol may have been a factor.
testified
that
there
are
Sergeant Steven Barker
generally
leave the scene of an accident:
three
reasons
people
their license has been
suspended, there is an outstanding arrest warrant for them,
or they drank alcohol before the accident.
Sergeant
respondent's
Barker
home
on
accompanied
the
night
Trooper
of
the
Wheeler
accident.
to
He
testified that respondent appeared to move away from him
1
This value refers to the amount of alcohol in an
individual's system. At the time of the accident, Michigan
law made it unlawful for someone to operate a vehicle where
"[t]he person has an alcohol content of 0.10 grams or more
per 100 milliliters of blood, per 210 liters of breath, or
per 67 milliliters of urine." MCL 257.625(1)(b).
4
whenever he got close.
when
he
One of the officers testified that,
confronted
respondent
about
an
apparent
inconsistency in his statement, respondent commented, "I
know you are in a position to fry me."
In addition to the
testimony of Trooper Wheeler and Sergeant Barker, several
witnesses to the accident testified that it appeared that
respondent had been drinking at the time of the accident.
Respondent
accident
had
intended
to
pushed
the
gave
conflicting
occurred.
depress
One
the
accelerator
about
explanation
brake
when
stories
his
pedal,
shoe
but
was
how
the
that
he
accidentally
slipped.
Another
explanation was that, as he approached the building, he
intended to brake, but he forgot that his foot was not on
the brake pedal.
Instead, he depressed the accelerator,
which caused the vehicle to shoot forward and strike the
building.
II.
The
events
including
Proceedings Below
occurring
respondent's
after
the
conflicting
March
12
explanations
accident,
to
the
media, caused the JTC to issue a formal complaint against
respondent.
The
complaint
may
be
summarized
as
alleging
following misconduct:
1. Persistent use of alcohol leading to a
variety
of
violations
of
the
Michigan
5
the
Constitution, the Michigan Court Rules, and the
Canons of Judicial Conduct.
2. Violations of the law and making false
statements to the police regarding the events
surrounding a motor vehicle accident on March 12,
2003.
3. Making false statements to the JTC.
The
complaint
may
be
summarized
as
alleging
respondent's conduct constituted:
1. Misconduct in office, as defined by Const
1963, art 6, § 30, as amended, and MCR 9.205;
2. Conduct
clearly
prejudicial
to
the
administration of justice, as defined by Const
1963, art 6, § 30, as amended, and MCR 9.205;
3. Habitual intemperance, as defined by Const
1963, art 6, § 30, as amended, and MCR 9.205;
4. Persistent failure to perform judicial
duties, as defined by Const 1963, art 6, § 30, as
amended, and MCR 9.205;
5. Persistent
neglect
in
the
timely
performance of judicial duties, contrary to MCR
9.205(B)(1)(b);
6. Irresponsible or improper conduct that
erodes
public
confidence
in
the
judiciary,
contrary to the Code of Judicial Conduct, Canon
2(A);
7. Conduct involving impropriety and the
appearance of impropriety, contrary to the Code
of Judicial Conduct, Canon 2(A);
8. Failure to respect and observe the law,
contrary to the Code of Judicial Conduct, Canon
2(B);
9. Conduct violative of MCR
(2), and (3) in that such conduct,
(i) is
prejudicial
administration of justice,
6
to
9.104(A)(1),
the
proper
that
(ii) exposes the legal profession or the
court to obloquy, contempt, censure, or reproach;
and
(iii) is
contrary
honesty, or good morals.
Retired
Circuit
Judge
to
John
justice,
N.
ethics,
Fields
was
appointed
master in the case, heard evidence, and made forty specific
findings
of
concluded
fact.
that
On
reviewing
respondent
all
violated
the
the
evidence,
court
rules
he
and
canons listed above.
The JTC adopted the master’s report and unanimously
recommended
that
this
Court
remove
respondent
from
the
bench. In addition, in a split decision, it recommended
that respondent be required to pay the costs that the JTC
incurred in prosecuting the matter.
Three
respondent
JTC
members
should
also
concurred.
They
be
to
required
thought
pay
the
that
costs
incurred for visiting judges to hear respondent's docket
during
his
interim
concurrence/dissent
removal,
but
argued
suspension.
agreed
with
that
costs
the
A
separate
recommendation
should
not
be
JTC
for
assessed
against respondent.2
2
We shall refer to these opinions as they are titled.
The concurring opinion will be referred to as the "JTC
concurrence."
The
opinion
objecting
to
requiring
respondent to pay the costs of his prosecution will be
referred to as the "JTC concurrence/dissent."
7
III.
Respondent
asks
recommendation.
He
Issues on Appeal
this
asserts
Court
to
that
reject
there
is
the
JTC’s
insufficient
evidence to find him guilty of judicial misconduct.
also
argues
introduction
that
of
the
master
improper
erred
expert
in
allowing
evidence.
He
the
Finally,
respondent contests the recommendation that he be required
to pay the costs of his prosecution.
IV.
We
review
the
Relevant Standards
JTC's
factual
findings
disciplinary recommendations de novo.
proof
in
a
judicial
discipline
preponderance of the evidence.
its
In re Chrzanowski,
465 Mich 468, 478-479; 636 NW2d 758 (2001).
of
and
The standard
proceeding
is
a
In re Loyd, 424 Mich 514,
521-522; 384 NW2d 9 (1986).
V.
In
making
The Commission's Recommendation
its
recommendation,
the
JTC
applied
the
factors enunciated in In re Brown, 461 Mich 1291, 1292-1293
(2000).
It
listed
each
factor,
circumstances of the case.
relating
it
to
the
It explained how it weighed
each factor for or against respondent.
Furthermore, the
JTC considered the fact that respondent has extensive prior
involvement with the judicial disciplinary system, having
been admonished on various occasions for failing to timely
complete court work.
8
The
JTC
truthful
concluded
regarding
that
the
respondent's
automobile
failure
accident
aftermath justifies his removal from office.
respondent
misled
the
police
and
inconsistent accounts of the events.
to
and
be
its
It found that
later
provided
Also, it found that
he failed to offer credible testimony when under oath in
the public hearing.
Furthermore,
caused
by
the
JTC
indicated
respondent
had
a
that
deleterious
docket
effect
delays
on
the
administration of justice in St. Joseph County. The JTC
acknowledged
that
respondent's favor.
a
number
of
attorneys
testified
in
But it noted that their testimony did
not alter the fact that the court docket and the public
suffered
because
concluded
that
of
respondent’s
respondent
is
conduct.
guilty
of
The
repeated
JTC
serious
misconduct that requires his removal from office.3
A. The Sufficiency of the Evidence
The power to discipline a judge resides exclusively in
this Court, but it is exercised on recommendation of the
JTC. Const 1963, art 6, § 30.
regard
3
to
the
master’s
Respondent’s complaints with
factual
findings
amount
to
a
The examiner indicated at oral argument that "[I]t's
fair to say that if the crash had never taken place we
would not necessarily be making a recommendation for
removal . . . . I think the gravamen of this is the lying,
and that truly should be the focus . . . ." We agree.
9
disagreement about the weight and credibility that should
be afforded to the various witnesses. The master, as trier
of fact, was in the best position to assess the credibility
"Our
of the witnesses.
power of review de novo does not
prevent us from according proper deference to the master's
ability to observe the witnesses' demeanor and comment on
their credibility."
In re Loyd, supra at 535.
On review of the entire record, we agree with the
master's
findings
Respondent
left
of
the
fact
scene
and
of
an
conclusions
automobile
of
law.
accident.
Eyewitnesses testified that respondent appeared intoxicated
at the time of the accident.
As a former prosecutor and a
judge, respondent knew that he should have stayed at the
scene of the accident.
being
made
aware
that
It is not credible that, after
the
police
were
on
their
way
to
question him about his accident, he consumed alcohol.
We conclude that respondent was under the influence of
alcohol when he ran his car into the store.
We conclude
that he attempted to deceive the police about this fact
because he was motivated by a desire to avoid criminal
prosecution.
the
cause
of
We conclude that he continued to misrepresent
the
accident
to
10
the
JTC
and
the
master,
motivated in addition by a desire to avoid professional
discipline.4
The preponderance of the evidence justifies a finding
that
respondent
notwithstanding
relies.
was
the
guilty
of
exculpatory
judicial
evidence
on
misconduct,
which
he
Nothing in the record suggests that Judge Fields
erred in his findings and conclusions in any manner that
would
change
contrary,
we
the
outcome
believe
of
that
the
proceedings.
Judge
objectively presided over this case.
with
the
JTC
that
Fields
To
the
fairly
and
Therefore, we agree
respondent's
significant
misrepresentations of the truth made in testimony and to
the public warrant disciplinary action.
B.
The Qualifications of the Expert Witness
Respondent argues that the examiner’s expert, Harvey
Ager, M.D., was not qualified to testify. Dr. Ager is a
psychiatrist who testified about the conduct typical of an
alcoholic.
MRE 702 provides the rule for expert testimony:
4
One of respondent’s more peculiar explanations for
the cause of the accident occurred during his testimony
before the master.
There, respondent testified that he
entered his vehicle through the passenger door and operated
the vehicle while straddling the console because he had
“mud on his shoes.”
Respondent indicated to the master
that he “used his left foot to accelerate and brake because
his right foot remained straddled over the center console.”
11
If the court determines that scientific,
technical, or other specialized knowledge will
assist the trier of fact to understand the
evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge,
skill, experience, training, or education, may
testify thereto in the form of an opinion or
otherwise if (1) the testimony is based on
sufficient facts or data, (2) the testimony is
the product of reliable principles and methods,
and (3) the witness has applied the principles
and methods reliably to the facts of the case.
Respondent argues that Dr. Ager's failure to publish,
present, or conduct peer review on the topic of alcoholism
in the recent past disqualifies him from testifying as an
expert.
The
recently
He is mistaken.
master
noted
published
or
that,
made
although
Dr.
presentations
Ager
on
had
the
not
topic,
there was evidence that he
is a graduate of Wayne State University. That he
is a board certified psychiatrist. That he is a
former codirector of the alcoholism unit at
Detroit Memorial Hospital. . . . [T]hat he has
treated hundreds of individuals with respect to
alcoholism. . . . I do find that his experience
in this area in addition to his general medical
training is such that he is qualified as an
expert to testify and render an opinion regarding
conduct consistent with alcoholism.
The master ruled that Dr. Ager could testify as long as his
testimony conformed with the requirements of MRE 702.
He
noted that "there has been nothing here to suggest that
this sort of testimony would not be based upon reliable
principals [sic] and methods."
12
Dr. Ager's testimony conformed with the requirements
of MRE 702.
On the basis of his experience, he testified
about what conduct is consistent with that of an alcoholic.
He
also
testified
about
his
personal
interaction
with
respondent in a ninety-minute interview.
Contrary to respondent's assertions, Dr. Ager did not
testify outside the bounds of his knowledge.
He did not
state
his
that
delays.
respondent's
alcoholism
caused
docket
He testified simply about the behavior one could
expect from an alcoholic.
Dr. Ager did not view respondent's work product and
did not comment on the quality of respondent's work.
Nor
was Dr. Ager introduced to testify regarding respondent's
work product.
the
work
of
The fact that Dr. Ager was unfamiliar with
respondent
and
the
extent
of
Dr.
Ager's
experience with alcoholics go to the weight to be given his
testimony.
They
are
not
determinative
of
whether
his
testimony conformed with the requirements of MRE 702.
We find that Dr. Ager qualified as an expert witness.
His testimony complied with MRE 702 and, therefore, was
admissible.
VI.
Appropriate Discipline
Having determined that the JTC proved the charges by a
preponderance of the evidence, we must assess whether the
recommended discipline is appropriate to the offense.
13
"Our
primary concern in determining the appropriate sanction is
to restore and maintain the dignity and impartiality of the
judiciary and to protect the public."
In re Ferrara, 458
Mich 350, 372; 582 NW2d 817 (1998).
Central to our decision to remove respondent is our
conclusion that respondent misled the police, the public,
and
the
JTC
about
his
drinking
on
March
12,
2003.
Respondent’s insistence that he was sober at the time of
the accident is not credible.
being
sober
when
he
His misrepresentations about
caused
an
automobile
accident
that
carried civil and criminal consequences are antithetical to
his
judicial
judiciary.
obligation
to
Respondent's
uphold
the
repeated
integrity
deception
of
and
the
the
publicity surrounding the incident have seriously eroded
the public's confidence in him and in the judiciary.
Unfortunately, we have on other occasions dealt with a
judge's dishonesty.
determined
that
In In re Ferrara, supra, this Court
Judge
Andrea
J.
Ferrara's
conduct
in
misleading the master after her original alleged misconduct
surfaced justified her removal from office.
During the
hearing on the complaint, Judge Ferrara twice attempted to
introduce a fraudulent letter into evidence.
that
her
misrepresentations
and
deception
We determined
eroded
public's trust and confidence in the judiciary.
14
the
We found
it necessary to remove Judge Ferrara from the bench in
order to restore public trust and confidence.
Likewise,
apparent
the
motives
integrity
of
deception
before
nature
behind
the
of
respondent's
them,
have
judiciary.
the
JTC
has
Id. at 373.
lies,
seriously
Respondent’s
seriously
and
the
harmed
the
continued
undermined
the
public's faith that judges are as subject to the law as
those who appear before them.
His continued dishonesty
with regard to the events of March 12, 2003, justifies his
removal from office.
Furthermore, respondent's persistent docket problems,
for which he was admonished on several occasions, violate
the standards of judicial conduct.
Were this proceeding
solely about his docket problems, we would not find removal
an appropriate form of discipline.
deception
surrounding
the
March
However, respondent's
12
accident
described
herein warrants the harsh sanction of removal from office.
VII.
The Assessment of Costs
The Michigan Constitution created the Judicial Tenure
Commission and outlines the power of the Michigan Supreme
Court to discipline judges:
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,
15
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).]
Pursuant to this constitutional provision, the Court
has promulgated court rules governing judicial discipline
proceedings.
statute
As the JTC noted, no specific court rule or
provides
for
imposing
costs
in
judicial
disciplinary matters.
We have imposed costs in several cases in the past.
The JTC majority relies on those cases in support of its
assessment
point.
In
of
In
costs
re
here.
But
Thompson,5
those
costs
cases
were
are
not
recommended
on
and
ordered, but the judge did not contest them. Likewise, in
In re Trudel,6 costs were ordered.
By then, however, Judge
Trudel had resigned from the bench. In In re Cooley,7 Judge
Cooley
consented
to
the
commission's
decision
and
recommendation, including the assessment of costs. In the
present action, respondent did not consent to the JTC's
recommendation,
nor
has
he
resigned.
Rather,
he
has
challenged the JTC's findings and its recommendation that
costs be assessed.
5
470 Mich 1347 (2004).
6
468 Mich 1243 (2003).
7
454 Mich 1215 (1997).
16
We
agree
respondent
with
is
the
JTC
entitled
to
concurrence/dissent
notice
of
what
that
conduct
subject the respondent to the assessment of costs.
a
will
Past
decisions of this Court have not provided notice because
they were issued without explanation of the standards used
in assessing costs.
We
agree
with
the
JTC
concurrence/dissent’s
observation:
Respondent Noecker cannot be said to have
been given notice of the standards to be applied
and the type of expenses that could be assessed
in this case. . . . The imposition of actual
costs has been extremely rare in the history of
reported cases. The commission has not set
standards for the imposition of costs until
today. Therefore, imposition of costs in this
case, if the Supreme Court believes they are
authorized by law, would violate the spirit of In
re Brown.
Where
a
judge
has
been
given
no
notice
of
the
standards for imposing costs, the judge should not be made
to pay them.
whether
the
We leave for another time the determination
assessment
Michigan Constitution.
of
costs
is
consistent
with
the
In this case, respondent should not
be required to pay the costs of his prosecution because he
had no notice of the standards for imposing them.
We have opened an administrative file to consider the
constitutional issue and the standards to be applied in the
event costs can be assessed in these matters.
17
ADM 2004-60.
VIII. Conclusion
After a careful examination of the evidence and an
evaluation
of
the
findings
of
fact,
we
conclude
that
removal of respondent from the bench is warranted.
We
Pursuant
hereby
to
order
MCR
respondent
7.317(C)(3),
removed
the
clerk
from
office.
is
directed
immediately to issue an order to that effect.
will be assessed.
Marilyn Kelly
Clifford W. Taylor
Maura D. Corrigan
Robert P. Young, Jr.
WEAVER, J.
I join in parts I through VI.
Elizabeth A. Weaver
18
No costs
S T A T E
M I C H I G A N
O F
SUPREME COURT
In re:
The Honorable JAMES P. NOECKER,
Judge 45th Circuit Court
Centreville, MI 49032,
_______________________________
No. 124477
YOUNG, J. (concurring).
I
fully
concur
in
the
majority
opinion.
I
write
separately, however, to explain why I believe removal to be
the appropriate sanction in this case.
The purpose of Judicial Tenure Commission proceedings
is not the punishment of the judge, but to maintain the
integrity
of
the
judicial
process
and
to
protect
the
citizenry from corruption and abuse. As such, this Court’s
primary concern in determining the appropriate sanction is
to restore and maintain the dignity and impartiality of the
judiciary and to protect the public.1
After reviewing the evidence in this case, I believe
that the evidence establishes respondent was intoxicated at
the time of the collision. Respondent left the scene of the
accident and constructed several inconsistent explanations
in
order
1
to
avoid
criminal
responsibility
for
his
In re Jenkins, 437 Mich 15; 465 NW2d 317 (1991); In
re Ferrara, 458 Mich 350; 582 NW2d 817 (1998).
intoxicated driving. More egregious, respondent also lied
under
oath
Commission
during
the
course
investigation,
of
presumably
the
Judicial
in
order
Tenure
to
avoid
judicial disciplinary consequences.
Our judicial system has long recognized the sanctity
and importance of the oath.2 An oath is a significant act,
establishing that the oath taker promises to be truthful.
As the “focal point of the administration of justice,”3 a
judge is entrusted by the public and has the responsibility
to seek truth and justice by evaluating the testimony given
under oath. When a judge lies under oath, he or she has
failed
to
internalize
one
of
the
central
standards
of
justice and becomes unfit to sit in judgment of others.
Certainly, Judicial Tenure Commission proceedings are
intended to be remedial, not penal.4 The vast majority of
misconduct found by the Judicial Tenure Commission is not
fatal; rather, it reflects oversight or poor judgment on
2
See June v School Dist No 11, 283 Mich 533, 537; 278
NW 676 (1938) ( An oath is “'[a]n external pledge or
asseveration, made in verification of statements made, or
to be made, coupled with an appeal to a sacred or venerated
object, in evidence of the serious and reverent state of
mind of the party, or with an invocation to a supreme being
to witness the words of the party, and to visit him with
punishment if they be false.'") (citation omitted).
3
In
re
Callanan,
419
Mich
376,
386;
355
NW2d
(1984).
4
In re Probert, 411 Mich 210; 308 NW2d 773 (1981).
2
69
the part of a fallible human being who is a judge. However,
some misconduct, such as lying under oath, goes to the very
core
of
judicial
duty
and
demonstrates
the
lack
of
character of such a person to be entrusted with judicial
privilege.
Where
a
respondent
shortcomings
during
the
and
is
course
judge
readily
completely
of
the
honest
Judicial
acknowledges
and
Tenure
his
forthcoming
Commission
investigation, I believe that the sanction correspondingly
can be less severe. However, where a respondent is not
repentant,
course
of
but
a
investigation,
engages
Judicial
the
in
deceitful
Tenure
sanction
must
behavior
Commission
be
during
the
disciplinary
measurably
greater.
Lying under oath, as the respondent has been adjudged to
have done, makes him unfit for judicial office.
It is for these reasons that I support respondent’s
removal from office.
Robert P. Young, Jr.
Clifford W. Taylor
Maura D. Corrigan
3
S T A T E
M I C H I G A N
O F
SUPREME COURT
In re:
THE HONORABLE JAMES P. NOECKER,
JUDGE 45TH CIRCUIT COURT
CENTREVILLE, MI 49032,
_______________________________
No. 124477
WEAVER, J. (concurring).
I agree that Judge Noecker should be removed from the
bench and join parts I – VI of the majority opinion.
The
accident, Judge Noecker’s conduct following the accident,
and his attempts to deceive the public and the police with
incredible
explanations
of
the
accident
are
clearly
prejudicial to the administration of justice and undermine
the
public’s
trust
and
confidence
in
the
judiciary.
Therefore, removal is the appropriate discipline.
I also concur in the result that Judge Noecker should
not be assessed costs, but for different reasons.
Rather
than rely on a lack of notice or standards as the reason
not to assess costs, I would not assess costs because it
appears
to
authority
me
to
proceedings.
that
assess
this
the
Court
judge
has
for
no
the
constitutional
costs
of
the
Const 1963, art 6, § 30 provides that “the
supreme court may censure, suspend with or without salary,
retire
or
remove
a
judge
.
.
.
.”
Nothing
in
this
constitutional provision gives this Court any authority to
discipline the judge by assessing the judge the costs of
the Judicial Tenure Commission proceedings against him or
her.
Elizabeth A. Weaver
2
S T A T E
O F
M I C H I G A N
SUPREME COURT
In re:
THE HONORABLE JAMES P. NOECKER,
Judge, 45th Circuit Court
Centreville, MI 49032
No. 124477
_______________________________
MARKMAN, J. (concurring).
I concur with the results of the majority opinion, as
well as with much of its analysis.
Had I been a member of
the Judicial Tenure Commission (JTC), I might possibly have
reached a different conclusion in terms of an appropriate
sanction,
dissenting
for
there
is
opinion.
much
In
with
which
particular,
I
I
agree
agree
in
the
with
the
dissenting opinion that more egregious behavior on the part
of judges has, in the past, been met with less sanction
than permanent removal.
Post at 1.
Further, I believe
that the thirty-five years of honorable public service on
the
respondent's
part
deserve
more
consideration
in
the
formulation of a sanction than, to my eye, has been given
here.
Nonetheless,
I
concur
with
the
majority
opinion
because, as it correctly notes, "'[o]ur power of review de
novo does not prevent us from according proper deference'"
to
the
processes
omitted).
of
the
JTC.
Ante
at
10
(citation
While the majority emphasizes the deference due
the "'master's ability to observe the witnesses' demeanor
and
comment
emphasize
on
the
their
credibility,'"1
deference
due
recommendation of a sanction.
the
id.,
I
would
commission
in
also
its
In In re Brown, 461 Mich
1291 (2000), this Court directed the commission to more
clearly
articulate
its
standards
in
determining
an
appropriate judicial sanction, and we set forth a number of
non-exclusive factors to be considered in this process.
We
stated in this regard:
As a constitutionally created state agency
charged with making recommendations to this Court
concerning matters of judicial discipline, the
JTC is entitled, on the basis of its expertise,
to deference both with respect to its findings of
fact
and
its
recommendations
of
sanction.
However, such deference cannot be a matter of
blind faith, but rather is a function of the JTC
adequately
articulating
the
bases
for
its
findings and demonstrating that there is a
reasonable relationship between such findings and
the recommended discipline.
* * *
. . . Where standards of this sort have been
promulgated and reasonably applied to individual
cases, this Court owes considerable deference to
the JTC. [461 Mich at 1292, 1293]
1
I concur with the majority in its conclusion that the
master "fairly and objectively" presided over this case.
2
The
commission
here,
in
my
judgment,
has
conscientiously evaluated the factors set forth in Brown,
as
well
as
additional
factors,
and
has
articulated the bases for its findings."
"adequately
Although personal
consideration of these factors might have led me in the
direction
opinion,
of
the
cannot
I
sanction
say
set
forth
that
there
in
the
is
no
dissenting
"reasonable
relationship between [the commission's] findings and the
recommended
discipline."
Rather,
I
believe
that
the
commission has identified such a relationship and therefore
is entitled to deference by this Court.
It was proper for this Court to promulgate the Brown
factors so that we could derive the "additional information
necessary
judicial
to
perform
discipline
[our]
under
Brown, supra at 1291.
and
the
commission
constitutional
Const
1963,
art
function
6,
is
that
administrative
having
commission,
necessity
Const
of
which
agency,
such
30(2)."
Having promulgated these factors,
reasonably
considered
"proper deference" is now required on our part.
deference
§
of
the
1963,
is
owed
to
any
constitutional
art
deference
3
6,
in
§30,
them,
While such
executive
status
or
of
the
underscores
the
matters
of
judicial
discipline.
On the basis of such deference, I concur with
the conclusions of the majority opinion.
Stephen J. Markman
4
S T A T E
O F
M I C H I G A N
SUPREME COURT
In re:
THE HONORABLE JAMES P. NOECKER,
Judge, 45th Circuit Court
Centreville, MI 49032
_______________________________
No. 124477
CAVANAGH, J. (dissenting).
Viewing
cannot
all
conclude
the
that
alleged
conduct
respondent’s
at
removal
issue
is
here,
I
warranted.
Much more egregious behavior on the part of judges has been
met with far less sanction than permanent removal.
See In
re Hathaway, 464 Mich 672; 630 NW2d 850 (2001) (suspending
the judge for six months without pay for the judge’s gross
mishandling of three cases and overall “lack of industry”);
In re Brown (After Remand), 464 Mich 135; 626 NW2d 403
(2001) (suspending the judge for fifteen days without pay
after finding that the judge misused the prestige of his
office in addition to having four previous instances of
misconduct); In re Moore, 464 Mich 98, 132-133; 626 NW2d
374
(2001)1
(characterizing
the
judge’s
“pattern
of
persistent interference in and frequent interruption of the
1
I concurred, writing that I would have imposed the
sanction of nine months without pay recommended by the
Judicial Tenure Commission.
trial
of
sometimes
cases;
impatient,
severe
discourteous,
attitudes
toward
critical,
jurors,
and
witnesses,
counsel, and others present in the courtroom; and use of a
controversial
tone
and
manner
in
addressing
litigants,
jurors, witnesses, and counsel” as warranting a six-month
suspension without pay); and In re Bennett, 403 Mich 178;
267 NW2d 914 (1978) (refusing to remove the judge from the
bench,
despite
serious”
finding
that
intemperance,
he
engaged
instead
in
“demonstrably
imposing
a
one-year
suspension without pay).
In In re Seitz, 441 Mich 590; 495 NW2d 559 (1993), on
which
Court
the
Judicial
removed
Tenure
recommendation.
the
judge
Commission
from
(JTC)
office
relies,
this
the
JTC’s
at
I find that case easily distinguishable.
Judge Seitz exhibited such unfathomable conduct toward his
colleagues and staff for over ten years that it took this
Court twenty-seven pages to delineate it.
He
also
engaged
in
wiretap on his phone.
felonious
conduct
Id. at 597-599.
Id. at 594-621.
by
installing
a
Moreover, he abused
his contempt power by deliberately ordering a person to
ignore
an
administrative
order
of
the
chief
follow Judge Seitz’s contradictory order instead.
judge
and
When the
person refused to do so, Judge Seitz had him arrested and
brought to the courtroom.
There, the judge performed a
2
mock
hearing
jailed.
devoid
Id.
at
of
due
process
599-604.
and
Judge
had
the
Seitz
person
also
had
unprofessional personal relationships with his staff.
Id.
at 604-611.
The JTC points to one paragraph in Seitz, supra at
622, that pertained to the judge’s failure to file reports
with the State Court Administrative Office as support for
its removal recommendation.
But Judge Seitz’s failures in
that regard paled in comparison to his other conduct, and
it
is
impossible
to
believe
that
his
failure
to
file
several reports alone would have resulted in his removal
from the bench.
Similarly here, where the two allegations
are that respondent lied about the accident and failed to
properly manage his docket, the JTC’s removal request is
extremely harsh.
The JTC relies on two cases, In re Ferrara, 458 Mich
350; 582 NW2d 817 (1998), and In re Ryman, 394 Mich 637;
232 NW2d 178 (1975), for the proposition that lying, by
itself, is sufficient to remove respondent from the bench.
But in both cited cases, more was at issue.
in
Ferrara,
the
misconduct
charges
For instance,
stemmed
from
the
revelation of eleven tapes on which the judge was recorded
lashing horrific racial and ethnic slurs at or about people
in both her personal and professional life.
3
This Court
found
that
conduct
irrespective
surrounding
removal.
of
the
the
tapes,
investigation
Judge
was
Ferrara’s
grounds
for
For instance, Judge Ferrara told the media and
the JTC that the tapes were fabricated, and she attempted
to admit a fraudulent letter twice, the second time after
her first attempt was rejected.
Additionally, the judge’s
conduct during the formal hearing was so “'inappropriate,
unprofessional, and demonstrat[ive of] a lack of respect
for the judicial discipline proceedings,’” that this Court
found
the
incidents
too
numerous
to
recount.
Ferrara,
supra at 370 (citation omitted).
Because
judge’s
of
lies
the
and
severe
her
and
obvious
continuing
nature
disrespect
of
the
for
the
judiciary, this Court concluded that removal was warranted,
stating:
We adopt the commission’s recommendation and
find
respondent’s
untruthful
and
misleading
statements to the public and press, her attempt
to commit a fraud on the Court by twice
attempting to introduce the Avela Smith letters,
and her unprofessional and disrespectful conduct
during
each
stage
of
the
proceedings
to
constitute misconduct in violation of the court
rules and judicial canons. [Id. at 372.]
Similarly, Ryman, supra, involved issues of backdating
and improper signing of deeds, false testimony, allowing a
court
clerk
continuing
the
to
perform
practice
Ryman, supra at 642-643.
a
of
magistrate’s
law
after
duties,
becoming
a
and
judge.
In my opinion, neither Ferrara
4
nor Ryman supports the JTC’s assertion that a suspected lie
is sufficient to remove a judge from office.
In
sum,
I
do
not
believe
there
is
permanently removing respondent from office.
support
for
It seems that
where a judge has been removed from office at least in part
for lying, the fact that the suspected lies were indeed
lies was uncontroverted.
Here, though, while respondent’s
story about the accident is undeniably suspicious, there is
no
proof
that
respondent
lied.
Without
more
than
speculation that respondent was being untruthful in denying
that he drank before he drove, the most severe punishment
hardly seems fitting.
Additionally, I do not think that the JTC adequately
supported a finding that respondent’s admitted alcoholism
caused his perceived administrative failures.
The logic
behind the asserted causal connection was flawed:
though
respondent
admits
abusing
alcohol,
it
does
even
not
necessarily follow that his shortcomings on the job are
related to that abuse.
The expert testimony did nothing to
assist in establishing the link between alcohol abuse and
work
performance.
If
anything,
Dr.
Miller’s
testimony
blurred the connection by pointing to a possible obsessivecompulsive
disorder
as
the
cause
related problems.
5
of
respondent’s
work-
In any event, respondent had plausible explanations
for at least some of his work-related behavior.
And no one
has ever seen respondent drinking or drunk on the job,
including
his
long-time
clerk.
No
attorney
testified
negatively about respondent’s behavior in court, and some
offered reasons for case delays that were totally unrelated
to
respondent.
argument
that
And
its
notably,
inclusion
the
JTC
of
admitted
these
at
oral
work-related
shortcomings were but “a footnote” to the gravamen of its
investigation, the accident.
I, therefore, cannot accept the JTC’s recommendation
of removal.
Although I believe that its finding that the
crash was alcohol-related is supported on the record, a
much lesser sanction is warranted, and the sanction should
be tailored to that particular event.
As such, I would
suspend respondent, without pay, for a period of fifteen
months, until May 1, 2006.
In light of my conclusions, I do not see grounds for
imposing the costs of the JTC’s prosecution on respondent,
particularly in light of its admission that its request for
reimbursement is unprecedented and unsupported by the court
rules.
Michael F. Cavanagh
6
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