MARILYN KELLY, J.
The Judicial Tenure Commission (JTC) has recommended that this Court remove 22d District Court Judge Sylvia A. James from office for judicial misconduct. Judge James (respondent) has filed a petition asking this Court to reject that recommendation. We affirm the JTC's findings and its recommendation and conclude that it is necessary and appropriate to remove Judge James from office for the remainder of her term.
The evidence establishes that respondent misappropriated public funds, some of
The cumulative effect of respondent's misconduct, coupled with its duration, nature, and pervasiveness, convinces this Court that she is unfit for judicial office. Although some of her misconduct, considered in isolation, does not justify such a severe sanction, taken as a whole her misconduct rises to a level that requires her removal from office. Therefore, we adopt the recommendations of the JTC, except with respect to the costs respondent will be ordered to pay, as will be detailed later.
Respondent is the sole judge in the 22d District Court in Inkster, Michigan. She is bound by the standards for discipline set forth in MCR 9.104 and MCR 9.205
On October 26, 2011, the JTC filed Formal Complaint No. 88 against respondent, alleging four counts of misconduct.
A formal master's hearing began on January 23, 2012, and concluded on March 1, 2012. On April 23, 2012, the master filed her findings of fact and conclusions of law with the JTC. She concluded that the examiner had proven portions of all four counts by a preponderance of the evidence.
The JTC issued its decision and recommendations for discipline on June 11, 2012. It adopted all but one
In determining the sanctions appropriate for respondent, the JTC considered the seven factors that the Court set forth in In re Brown.
The Michigan Constitution grants this Court general superintending control over all the state courts in Michigan.
We review the recommendations of the JTC de novo.
After reviewing the record and hearing oral arguments by the parties, the Court agrees with the findings of the JTC and adopts its recommendation regarding sanctions.
The master and the JTC both found that respondent had engaged in inappropriate financial transactions and practices. We agree. The most significant misconduct involved respondent's misappropriation and abuse of Community Service Program (CSP) funds.
The court's judicial information system (JIS) is programmed to automatically apply these payments in compliance with the statutes. Notwithstanding that fact, respondent ordered her clerks to override the JIS to allocate them first to the court's CSP account, which did not use the first 50 percent for crime-victim restitution.
Respondent expended monies intended for crime-victim restitution and for additional legislatively mandated priorities to other sources in a manner that she alone controlled. She expended thousands of dollars on items having no relation to the operation of the CSP. She choose the charities and organizations that would receive the funds and personally signed each of the checks. Many of these expenditures were for advertisements that promoted the judge, prominently displaying her picture and only tangentially mentioning the CSP. She also allocated CSP funds to local charities of her choice
The facts also show that respondent authorized payments to three CSP codirectors of stipends in the amount of $650 a month. These individuals were paid as independent contractors, despite the fact that they were already salaried employees of respondent's court. Between late 2008 and early 2011, one of these individuals received more than $8000, the second more than $21,000, and the third more than $19,000 paid from CSP funds. Respondent required all three to submit monthly statements of tasks performed but did not require them to document how many hours they worked. Some of their CSP tasks were performed during regular court business hours. The individuals spent between 15 and 20 hours a week on CSP tasks and were paid each month, in advance, regardless of whether they submitted monthly reports. Also, they were paid without regard to the number of hours worked. In some instances, they were paid two or even three months in advance.
Respondent also failed to establish a budget for the CSP account, as mandated by MCL 600.8271. She claimed that she was "not put on notice" that she was required to create a budget. However, an October 2007 audit report, which respondent admitted she had read, apprised respondent that state law required a budget for all general and special revenue accounts, including the CSP.
The master and the JTC found that respondent implemented an unreasonable business-attire policy and allowed it to be enforced at the court, resulting in people being denied access to the court. The Court agrees with this finding.
The respondent instituted the business-attire policy because some people wore clothing in court that inappropriately exposed their bodies or suggested that they belonged to a gang. The policy was intended to apply only to people in the courtroom, not to everyone who wished to enter the courthouse.
However, the record shows that court employees enforced the business-attire
In addition, respondent simply cannot be allowed to plead ignorance about how her business-attire policy was enforced in the court she controlled. Under the court rules, a "judge is personally responsible for the judge's own behavior and for the proper conduct and administration of the court in which the judge presides."
The master and the JTC found that respondent knowingly rehired an unqualified magistrate in violation of MCL 600.8501 and MCL 600.8507 and misrepresented that he was qualified.
The JTC findings also established that respondent violated the Supreme Court's antinepotism policy by hiring her niece. The Court's antinepotism policy
The master and the JTC found that respondent made misrepresentations during the investigation and the hearing, including lying under oath. This Court agrees with those findings.
In March 2011, using court funds, respondent purchased a $350 airline ticket for herself to attend a judicial conference in California. She did not attend the conference and exchanged the unused ticket for another that she used for a non-court-related trip. Respondent testified before the master that the airline ticket was "worthless." However, the record established that after the airline assessed a penalty of $150, respondent used the remaining $200 toward a $249 plane ticket for personal travel after being suspended from office.
Another incident involved a plane ticket for a conference in Massachusetts. Respondent issued a check from the CSP account to herself for $349.40, which she estimated to be the round-trip cost for the trip. She actually paid $7.50 for the ticket she purchased using frequent-flier miles. It is undisputed that respondent did not reimburse the CSP account for the difference. She testified that she was not overcompensated for her ticket because it would have cost $1,137.50 if she had paid for the 32,500 frequent-flier miles she used to purchase the ticket.
Respondent also testified under oath that after appointing the magistrate she informed him that "he would have to become a registered elector as well as a resident of the city of Inkster." However, the magistrate testified to the contrary, saying that he "never knew" that being a registered elector was a requirement of the position. Moreover, respondent testified that she received a letter from the magistrate confirming his qualifications and attaching a copy of his voter's registration card. However, the magistrate testified that he did not provide such a letter. Moreover, he said that he knew "for certain" that he had never provided a copy of his voter's registration card to respondent because he was never a registered voter in Inkster. The master specifically found the magistrate's testimony "credible" and respondent's testimony "not credible." As the master was in a superior position to observe the witnesses' demeanor and assess their credibility,
Other misrepresentations made by respondent included the following: (1) she denied receiving any personal benefit from the various advertisements she purchased with CSP funds, (2) she denied that she was on notice of the requirement to establish a budget for the CSP account, and (3) she denied failing to take appropriate action to recover refunds owing from overpayments for court-related travel.
"The purpose of these proceedings is not to impose punishment on the respondent judge, ... but to protect the people from corruption and abuse on the part of those who wield judicial power."
In a case similar to this one that also involved substantial and pervasive misconduct, we removed a judge from office for the remainder of his term.
The JTC is directed to submit a bill of costs to the Court. It is to include an itemization pursuant to MCR 9.205(B) showing the costs, fees, and expenses incurred by the JTC in prosecuting the complaint.
Pursuant to MCR 9.226, the Court will not accept motions for rehearing on the merits of this opinion. The Clerk of the Court is directed to issue the judgment order forthwith in accordance with this opinion and MCR 7.317(C)(3).
YOUNG, C.J., and MARKMAN, MARY BETH KELLY, and ZAHRA, JJ., concurred with MARILYN KELLY, J.
CAVANAGH and HATHAWAY, JJ.
MARKMAN, J. (concurring in part and dissenting in part).
I agree with the majority that Judge Sylvia James used several hundred thousand dollars of public funds as her "personal piggybank," without regard for either the law or the victims of crime within the city of Inkster who were entitled to have received a share of those funds; violated court policy by hiring a family member; and lied under oath during the investigation and hearing conducted by the Judicial Tenure Commission (JTC) and the master appointed in this case. I also agree that this misconduct compels the removal of Judge James from office, as well as the payment of costs and restitution for the funds diverted from the victims of crime within Inkster.
I respectfully disagree, however, that the sanctions imposed on Judge James by the majority sufficiently address the continuing harm that her misconduct has inflicted on the integrity of the judiciary in our state. The Michigan Constitution confers on this Court the duty of exercising superintending control over the lower courts. In my judgment, this responsibility to protect the integrity of our justice system requires in this case that Judge James also be conditionally suspended for a period of six years, or one full term of the court on which she currently presides.
As Chief Justice Marshall so famously stated in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803), it is, "emphatically, the province and duty of the judicial department, to say what the law is." This, of course, leads to the question, "Who shall keep the keepers?" In re Del Rio, 400 Mich. 665, 726, 256 N.W.2d 727 (1977) (quotation marks and citation omitted). Our state constitution "vests this solemn responsibility" in this Court. Id. at 726, 256 N.W.2d 727. Const. 1963, art. 6, § 4 provides:
We observed in Ransford v. Graham, 374 Mich. 104, 108, 131 N.W.2d 201 (1964), that the power of general superintending control may be exercised "for the purpose of protecting the purity of judicial processes and maintaining public confidence in the administration of justice." As head of the state judiciary, this Court is charged with keeping the courts within bounds and ensuring "`the harmonious working of our judicial system.'" In re Huff, 352 Mich. 402, 418, 91 N.W.2d 613 (1958) (citation omitted). This duty to protect the integrity of the judiciary should not be taken lightly and must be considered in all cases involving judicial misconduct. In In re Probert, 411 Mich. 210, 231, 308 N.W.2d 773 (1981), this Court stressed that our judicial system "is only as good as its constituent judges." We explained:
Del Rio, 400 Mich. at 725, 256 N.W.2d 727 (citations omitted). To accomplish this end, the state and this Court can prescribe appropriate standards of conduct for those who hold state elective judicial office. Id. at 683, 256 N.W.2d 727. These standards, set forth in MCR 9.104 and MCR 9.205,
Particularly in the circumstances of this case, it bears emphasizing that the elective nature of the judicial office does not relieve this Court of its duty to preserve the integrity of the judiciary, nor does the fact of popular election insulate or immunize a judge from the consequences of his or her misconduct, any more than an elected public official is insulated or immunized by election to office from being held to account for criminal law violations. To be sure, the elective power of the people does include the responsibility to ensure the qualifications of those elected, but they do not bear this responsibility alone.
As noted, our Constitution vests in this Court the primary responsibility to "keep the keepers." The people are entitled to a judiciary of the highest integrity, in both appearance and in fact, and this Court always bears the obligation under the constitution adopted by "we the people" to maintain and enforce standards of judicial fitness.
This Court's authority to sanction a judge can be found in Const. 1963, art. 6,
Furthermore, the JTC's specific recommendation is not binding upon this Court. MCR 9.225 provides, in relevant part:
In other words, the fact that the JTC did not recommend a particular sanction does not preclude this Court from imposing what it determines to be an appropriate and proportionate sanction. Thus, the only limitation on this Court's authority to redress judicial misconduct in article 6, § 4 is that this Court may not use § 4 power to remove a judge, although we may remove a judge upon a disciplinary recommendation of the JTC under article 6, § 30. In fact, the superintending control power vested by § 4 is extremely broad:
Huff, 352 Mich. at 417-418, 91 N.W.2d 613 (citation omitted); see also In re Hathaway, 464 Mich. 672, 684 n. 8, 630 N.W.2d 850 (2001).
Suspension from office is one sanction expressly listed in Const. 1963, art. 6, § 30. This Court has clarified that "suspension," which is an "`ad interim stoppage or arrest of official power and pay,'" is not synonymous with "removal," which "`terminates wholly the incumbency of the office or employment.'" Probert, 411 Mich. at 229 n. 11, 308 N.W.2d 773, quoting Black's Law Dictionary (4th rev ed.), p. 1616. Further, "[n]either `suspension' nor `removal' connotes a permanent disqualification from office." Probert, 411 Mich. at 229 n. 11, 308 N.W.2d 773 (emphasis in original). The power to suspend is also not limited to cases in which the judge currently holds judicial office. As this Court noted in Probert, we possess the authority under the constitution to issue conditional suspensions that "foreclose[] the exercise of the prerogatives inhering in any judicial office to which the disciplined party might have been elected or appointed in the future, the condition being, of course, re-election or appointment to judicial office." Id. at 224, 308 N.W.2d 773, citing Mikesell, 396 Mich. at 549, 243 N.W.2d 86, Del Rio, 400 Mich. at 672 nn. 3 and 4, 256 N.W.2d 727, and In re Bennett, 403 Mich. 178, 200, 267 N.W.2d 914 (1978).
Turning to the matter now before this Court, I believe that any sanction imposed must address not only the immediate effects of Judge James' misconduct, but also the extent of the harm she has done to the integrity of the judicial system and the likelihood that the harm will continue. In Probert, 411 Mich. at 228 n. 10, 308 N.W.2d 773, we set forth a number of factors to consider in determining the appropriateness of a sanction that operates after a judge has left judicial office: (1) the likelihood of reelection to judicial office, (2) the gravity of the misconduct, and (3) the importance of official reprobation to public confidence and trust in the integrity of the judicial system. Consideration of these factors, along with the specific details of Judge James' misconduct in the instant case, leads inescapably, in my judgment, to the conclusion that removal and restitution alone cannot fully and adequately redress the harm that she has caused to the integrity of the judiciary. Accordingly, I would impose on her a six-year conditional suspension in addition to the removal imposed by the majority and the itemization of costs it has ordered.
In In re Brown, 461 Mich. 1291, 1292-1293, 625 N.W.2d 744 (2000), this Court provided seven factors to guide the formation of judicial-discipline recommendations. This case, I believe, implicates the following Brown factors, all weighing in on the "more serious" side of the scale: (1) misconduct that is part of a pattern or practice, (2) misconduct that is prejudicial to the actual administration of the justice, (3) misconduct giving the appearance of impropriety, and (4) misconduct that is premeditated or deliberated. After considering these factors, I cannot agree with the majority that removal alone constitutes an appropriate response to the seriousness of the misconduct at issue.
The evidence clearly establishes that Judge James' misconduct was prejudicial to the actual administration of justice, as her private use of hundreds of thousands of dollars of public funds prevented those funds from being used for their proper purposes, including provisions of assistance for the victims of crime within Inkster. As the majority has detailed, Judge James treated public funds, including funds statutorily required to go to victims of crime, as her own "publicly-funded, private charitable foundation" of which she was the sole administrator. In so doing, Judge James routinely ignored or circumvented legal requirements that conflicted with her own personal desires. Although Judge James places great importance on the fact that she provided some of the misappropriated funds to worthy charitable or civic organizations, she fails to acknowledge that her "contributions" invariably served her own electoral purposes as
Moreover, Judge James continues to fail to acknowledge that she possessed no authority to expend public monies in violation of the law.
Her improper institution and enforcement of the business-attire policy were also prejudicial to the administration of justice, barring litigants' access to the justice system itself. Her improper hiring of her niece, in violation of the court's antinepotism policy, also communicated the appearance of impropriety. And virtually all of her misconduct was thoroughly deliberate and premeditated, requiring that policies be instituted, computer systems be overridden, expenditures be planned and implemented, records be distorted, long-range travel plans be undertaken, and ways be devised to ensure unchecked and improper access to public funds.
But the most disturbing factor, and the one that arguably presents the greatest danger to the integrity of the judiciary, is that Judge James' misconduct was part of an enduring pattern or practice that she has shown no intention of changing. Her behavior and statements before, during, and after the investigation and hearing
The inadequacy of removal is further demonstrated by Judge James' practice of being unrestrained by her oath to tell the truth. During the course of this investigation and hearing, Judge James lied numerous times. For example, Judge James not only falsely stated that a candidate was qualified to be magistrate, she then continued to lie when confronted about the first falsehood. Judge James further lied in stating that it was the funding authority that issued the improper checks, not her. The funding authority, however, never administered or managed the account from which the checks were drawn. In fact, Judge James opened the account when the funding authority questioned some of her check requests. Judge James also falsely submitted in her answer that the decision to close the court bank accounts was made by the bank and that the decision "forced" her court administrator to obtain a new federal tax identification number and open new accounts elsewhere. A letter from the court administrator to the bank (directed by Judge James) clearly stated that the decision was the "court's and not the bank's." Further, Judge James instructed her administrator to obtain a new tax identification number before the accounts at the bank were closed.
Judge James also falsely stated that she derived no benefit from the issuance of the various checks to the civic and charitable organizations, when the advertisements prominently featured her name and photograph and had the appearance of campaign literature. Similarly, Judge James falsely submitted in her answer that she was only an honorary member of the Booker & Flora Dozier Memorial Scholarship organization (one of the organizations to which she improperly directed public funds), when she actually served as a committee member and voted on which applications should receive scholarships. Judge James also falsely stated that she was not an active member of the Delta Sigma Theta sorority (another organization that received public funds from Judge James), when in fact she is a lifetime member. Finally, Judge James lied about reimbursements she had received for travel expenses and pocketed public monies in excess of the actual costs. Thus, Judge James not only received an improper monetary benefit, but she lied about it when this was brought to her attention.
The provision of false testimony or evidence in a JTC proceeding has generally led to removal from office. In re Servaas, 484 Mich. 634, 716 n. 11, 774 N.W.2d 46 (2009) (YOUNG, J., dissenting). This Court also explained the importance of truthfulness in In re Ferrara, 458 Mich. 350, 372, 582 N.W.2d 817 (1998):
Lying under oath is the antithesis of judicial integrity. When faced with such misconduct, this Court must take pains to adequately address the harm inflicted and protected against future harm if necessary. See In re Ryman, 394 Mich. 637, 232 N.W.2d 178 (1975); In re Loyd, 424 Mich. 514, 384 N.W.2d 9 (1986); Ferrara, 458 Mich. 350, 582 N.W.2d 817; In re Noecker, 472 Mich. 1, 691 N.W.2d 440 (2005); In re Nettles-Nickerson, 481 Mich. 321, 750 N.W.2d 560 (2008).
I agree with the Judicial Tenure Commission and the majority opinion that Judge James' misconduct violated Const. 963, art. 6, § 30, MCR 9.104(A)(1) (conduct prejudicial to the proper administration of justice); MCR 9.104(A)(2) (conduct that exposes the legal profession or the courts to obloquy, contempt, censure, or reproach); MCR 9.205(A) (a judge is personally responsible for the judge's own behavior and for the proper conduct and administration of the court in which the judge presides); MCR 9.205(B)(1) (misconduct in office); Code of Judicial Conduct, Canons 1 (uphold the integrity and independence of the judiciary), 2(A) (avoid all impropriety and appearance of impropriety), 2(B) (respect and observe the law), 2(C) (not allow family, social, or other relationships to influence judicial conduct or judgment), 3(A)(1) (be faithful to the law and maintain professional competence in it and be unswayed by partisan interests, public clamor, or fear of criticism), 3(A)(2) (enforce reasonable rules of attire and conduct in the courtroom.), 3(B)(1) (diligently discharge administrative responsibilities, maintain professional competence in judicial administration, and facilitate the performance of the administrative responsibilities of other judges and court officials.), and 6(B) (expense reimbursement limited to the actual cost of travel, food, and lodging reasonably incurred by the judge); MCL 600.4803 (court must transmit to the treasurer or chief financial officer of the funding unit of the court late penalties received within 30 days after receipt of the penalty); MCL 600.8379 (proper allocation of fines and costs); MCL 600.8501 (appointment of magistrates); MCL 600.8507 (qualifications of magistrates); MCL 750.174 (embezzlement by fiduciary); MCL 750.175 (embezzlement by public officer); MCL 750.218 (use of false pretenses with intent to defraud); MCL 750.249 (uttering and publishing); and Administrative Order 1996-11 (antinepotism policy).
Underlying this misconduct, however, is a common theme: Judge James' refusal to conform her actions to the requirements of the law, a law to which she was bound, as are all other citizens. Judge James' actions, in short, that she believed she was above the law and not within the law. Her actions demonstrate a pattern of ignoring laws or requirements that conflicted with her personal desires and judgment. Even more troubling, her actions during the investigation and hearing below demonstrate a complete lack of remorse or acknowledgement of wrongdoing. Nowhere in the record does Judge James concede that her actions and decisions were inappropriate and unlawful; instead, she repeatedly attempted to justify her misconduct, arguing that no one had previously complained of the improprieties, that she was not aware of the legal requirements,
Taken together, these justifications reveal a refusal to conform her actions to the requirements of the law, as if statutory requirements and judicial canons are mere suggestions that may be regarded or disregarded at her will. It is this refusal to be bound by the laws of this state that, in my opinion, poses the greatest harm to the integrity of the judiciary and must therefore be effectively addressed.
Although the majority's ordering removal from office addresses the immediate harm caused by Judge James, it is an inadequate response and fails to address the likelihood of continuing harm. As a result of the majority's decision, Judge James will be removed from office from today's date until the expiration of her present term at the end of 2012. She has her name on the August primary ballot, however. If she is successful in the primary, her name will be placed on the ballot for the general election in November. And should she prevail in those elections, she will be allowed to resume her judgeship on January 1, 2013.
In sum, following today's decision: (1) Judge James will appear and be designated as a "judge" on the August 7 primary ballot, (2) if Judge James is among the top two finishers in that primary, she will stand for reelection on November 6, although no longer designated as the incumbent "judge," (3) Judge James will be allowed to campaign continuously for judicial office between the time of today's decision and the November election, referring to herself if she chooses as a "past chief judge" or as "former judge," and (4) if Judge James is reelected in November, she will be allowed to retake office and serve the next six-year term of the court beginning on January 1 of next year. And whether by that time Judge James has or has not made full restitution to the city of Inkster or to individual victims of crime within Inkster, she may resume her "public service" after a "removal" from judicial office of less than five months. Such a sanction is inadequate, in my judgment, and does not satisfy what I view as this Court's obligation under our superintending authority over the judiciary to preserve the integrity of Michigan's courts.
Given Judge James' lack of remorse and continuing refusal to acknowledge that she too is bound by the laws of this state, there is no reason to believe that Judge James will not continue to place her own will above the will of the people. Again, it is of no moment for what constitutes a proportionate sanction against Judge James that she may again be elected to judicial office this year. The harmful effect of her misconduct on the judiciary extends beyond the geographical limits of her judicial district, and this Court must ensure that our sanctions for judicial misconduct are viewed as adequate in Alpena and Muskegon and Battle Creek, as well as in Inkster. And a victim of crime within Inkster who was due restitution from the fund depleted by Judge James is entitled to an honest court in Inkster whether her or she has come into that community from Dearborn or Wyandotte or Trenton. Const. 1963, art. 6, § 1 proclaims that there is but "one court of justice" in this state, and the actions of Judge James have implications for the reputation and integrity of the judiciary throughout our state.
This Court has a duty to redress the harms done by Judge James' harm, and that duty is not vitiated if Judge James is reelected. Nor is that duty limited to past harm; rather, it also extends to guarding against future harm. Imposing a six-year conditional suspension, which would be in effect throughout the next judicial term, is the only way this Court can adequately protect judicial integrity and redress the
Although I concur with the majority that Judge James's misconduct warrants removal and the payment of restitution for the diversion of public funds into her "personal piggybank" and as part of her "publicly-funded private foundation," I do not think that this sanction sufficiently addresses the harm done to the integrity of the judiciary. In light of this Court's responsibility to ensure the integrity of our judicial system, both in appearance and in fact, and in light of the serious misconduct by Judge James that directly impugns the integrity of our "one court of justice" and because of her serious abuse of the public trust, financial and otherwise, I would impose a six-year conditional suspension in addition to the sanctions imposed by the majority.
YOUNG, C.J., concurred with MARKMAN, J.
MCR 9.205, entitled "Standards of Judicial Conduct," states:
The master and the JTC cited MCL 780.766a, the allocation provision in article 1 of the Crime Victim's Rights Act, MCL 780.751 et seq., applicable to felonies. It is clear that the intended reference was to MCL 780.826a, which is found in article 3 of that act, MCL 780.811 et seq. This is the article applicable to misdemeanors, over which respondent presided. We note, however, that the two provisions are virtually identical and that the presumably inadvertent citation error does not affect our analysis or the result.
MCL 780.826a states in relevant part:
