MARKMAN, J.
The Judicial Tenure Commission (JTC) has recommended that respondent, Wayne Circuit Judge Wade H. McCree, be removed from office and conditionally suspended without pay for six years beginning on January 1, 2015 — with the suspension becoming effective only if respondent is reelected to judicial office in November 2014 — and that he be ordered to pay costs in the amount of $11,645.17. Respondent has filed a petition asking this Court to reject that recommendation. We affirm almost all of the JTC's factual findings and conclusions of law, and we adopt its recommendation. The evidence establishes that respondent (a) had a sexual relationship with a complaining witness in a case pending before him without recusing himself for several months, (b) engaged in numerous ex parte communications with her concerning the case, as well as concerning another case in which one of her relatives was a party, (c) violated various policies of the courthouse by permitting his mistress to enter the facility through an employee entrance without going through security, allowing her to remain alone in his chambers while he was on the bench, arranging for her to park her vehicle in an area reserved for judges, and sneaking her cell phone into the courthouse for her, (d) transmitted numerous text messages to her while he was on the bench that contained inappropriate and derogatory references to defendants, litigants, and witnesses appearing before him, (e) lied about when and why he finally did recuse himself from the case in which his mistress was the complaining witness, (f) sought to use the prosecuting attorney's office as leverage against his then ex-mistress by concocting charges of stalking and extortion against her, and (g) lied under oath during the JTC proceedings. The cumulative effect of respondent's misconduct convinces this Court that respondent should not remain in judicial office, and we therefore remove him from office and conditionally suspend him without pay for six years beginning on January 1, 2015, with the suspension becoming effective only if
In respondent's words in his own defense, "Wade should have recused himself," but the failure to do so resulted in "no harm no foul." We disagree. The "harm" done was to the parties' rights to a fair legal process and the public's right to an impartial judiciary, and the "foul" committed was the resulting violation of Michigan's Code of Judicial Conduct.
On January 7, 2013, pursuant to MCR 9.219(A)(2), the JTC filed a petition for the interim suspension without pay of respondent. By order of February 8, 2013, this Court granted the petition, effective immediately. In re McCree, 493 Mich. 935, 825 N.W.2d 586 (2013).
With regard to Count I, the complaint alleged that between May and November 2012, respondent had a sexual relationship with Geniene LaShay Mott, who was the complaining witness in People v. King. Robert King, the father of one of Mott's children, was the defendant in that case, which pertained to his failure to pay Mott child support. Respondent and Mott repeatedly engaged in ex parte communications about the King case. For example, in response to Mott's texted suggestion to impose a jail sentence until King paid $2,500, respondent texted back:
Respondent asked Mott to keep their relationship confidential because of the then-pending JTC investigation regarding respondent's previous conduct of having texted a photograph of himself without a shirt to a female deputy sheriff and telling a reporter in response to questions about his actions that "there is no shame in my game."
With regard to Count II, the complaint alleged that respondent later made a false stalking/extortion complaint against Mott with the Wayne County Prosecuting Attorney's Office. He also falsely told the prosecutor's office that he had transferred the King case immediately upon starting his relationship with Mott and that Mott had demanded $10,000 in return for terminating her pregnancy and not revealing respondent's affair with her to respondent's wife.
With regard to Count III, the complaint alleged that respondent was involved in another failure-to-pay-child-support case in which Mott had an interest — People v. Tillman. The defendant in that case was a relative of Mott's. Respondent and Mott engaged in ex parte communications regarding this case as well. Off the record, and in the absence of any motion being filed, respondent signed an order for the reduction of bond relating to Mott's relative.
With regard to Count IV, the complaint alleged that respondent transmitted numerous text messages to Mott while he was on the bench. Many of these text messages contained inappropriate and sexually explicit comments. For example, respondent texted Mott:
Numerous text messages respondent transmitted from the bench contained inappropriate and derogatory personal references to defendants, litigants, and witnesses appearing before him. For example, he texted:
He also texted:
Finally, with regard to Count V, the complaint alleged that respondent made several misrepresentations to the JTC. For example, respondent told the JTC that he had irrevocably terminated his relationship with Mott on October 31, 2012, although he actually continued his affair with Mott into November 2012. Respondent also told the JTC that he did not take any action on the Tillman case in November 2012, but he actually signed an order for reduction of bond in that month. In addition, respondent told the JTC that he did not know of any familial relationship between Tillman and Mott, but he did, in fact, know that they were relatives.
With regard to Count I, the master found that respondent should have disqualified himself from the King case as soon as he started a relationship with Mott and that "[f]or McCree to claim in sworn testimony during these proceedings that it was an OVERSIGHT or it didn'[t] DAWN on him that he should recuse himself is not credible. In short he lied to the JTC." Respondent intentionally used his judicial position to advance his own interests by holding on to the King case in order to keep Mott interested in him. According to the master, "He had a hot young lady who was in his words `eye candy' and a way to keep her interested was to keep her case and be of assistance in the collection of money."
With regard to Count II, the master found that respondent lied to the prosecutor's office when he told them that Mott was stalking him and trying to extort money from him and that he had recused himself from the King case when he found out that a child of Mott's had interacted with one of his children.
With regard to Count IV, the master found that although many of the text messages that respondent sent while he was on the bench were inappropriate, they were "used in a private context and when used there was no reason to believe that the statements would become public"
Finally, with regard to Count V, the master found that respondent did not falsely tell the JTC that he had irrevocably terminated his relationship with Mott on October 31, 2012, because "there is no indication that a sexual relationship continued after that date."
The JTC then held a hearing on August 5, 2013, and issued its decision and recommendation for discipline on September 10, 2013. With regard to Count I, the JTC found that respondent had a sexual affair with Mott, who was a complaining witness in a case before him, and that respondent regularly engaged in ex parte communications with Mott regarding the case, even while he was sitting on the bench. For example, respondent and Mott exchanged the following text messages regarding the case:
Then, on the morning of the review hearing in the King case, respondent and Mott exchanged the following text messages:
With regard to Count II, the JTC found that "Respondent reported to Wayne County Prosecuting Attorney Kym Worthy that he was being stalked and extorted by Mott," but "Respondent did not tell Worthy that Mott had been a complainant in a case before him." In addition, "[w]hile Respondent did tell Worthy's investigators that Mott had been a complainant in a case before him, he falsely told the investigators that he immediately recused himself from the case once he realized the conflict."
With regard to Count III, the JTC found that "Respondent's ex parte communications with Mott regarding People v. Tillman and Respondent's failure to immediately recuse himself from People v. Tillman upon learning that Tillman was Mott's relative constituted judicial misconduct."
Finally, with regard to Count V,
And in a text message, he said:
The JTC finally concluded that "[a] preponderance of the evidence at the formal hearing shows that Respondent breached the standards of judicial conduct...." More specifically, the JTC concluded that respondent engaged in "[m]isconduct in office ... [and] [c]onduct clearly prejudicial to the administration of justice, as defined by the Michigan Constitution of 1963, as amended, Article 6, Section 30 and MCR 9.205" and violated MCR 9.104(1), (2), (3), and (4); MCR 2.003; MCR 2.103; MCR 2.114; and MCL 750.423, as well as Canons 1; 2(A), (B), and (C); and 3(A)(1) and (4) and (C) of the Code of Judicial Conduct.
In determining an appropriate sanction, the JTC considered the factors that this Court set forth in In re Brown, 461 Mich. 1291, 1292-1293, 625 N.W.2d 744 (2000). Finding that respondent's misconduct implicated six of the seven Brown factors and that his "misconduct affected not only the litigants in the King and Tillman cases, but harmed the integrity of the judicial system as a whole," the JTC recommended that respondent be removed from office and conditionally suspended without pay for six years beginning on January 1, 2015, with the suspension becoming effective only if respondent is reelected to judicial office in November 2014, and that he be ordered to pay costs in the amount of $11,645.17.
This Court reviews de novo the JTC's factual findings, conclusions of law, and disciplinary recommendations. In re James, 492 Mich. 553, 560, 821 N.W.2d 144 (2012); In re Halloran, 466 Mich. 1219, 1219, 647 N.W.2d 505 (2002). "Findings of misconduct must be supported by a preponderance of the evidence." In re Haley, 476 Mich. 180, 189, 720 N.W.2d 246 (2006). MCR 9.225 provides that "[t]he Supreme Court shall review the record of the proceedings and file a written opinion and judgment, which may accept or reject the recommendations of the commission, or modify the recommendations by imposing a greater, lesser, or entirely different sanction." "Although we review the JTC's recommendations de novo, this Court generally will defer to the JTC's recommendations
After reviewing the record and hearing oral arguments, we agree with and adopt almost all the factual findings of the JTC. Indeed, most of the JTC's factual findings are not even in dispute. That is, respondent does not dispute that he engaged in a sexual relationship with Mott, who was a complaining witness in a case before him, and that he regularly engaged in ex parte communications with Mott regarding the case.
In addition to the factual findings that we adopt from the JTC, we also find that respondent lied to the prosecutor's office about Mott stalking and extorting him and about why he eventually recused himself in the King case. In addition, we find that respondent lied to the JTC about irrevocably terminating his relationship with Mott on October 31, 2012, and about whether he knew that Mott and Tillman were related and whether he took any
Although we believe that the sanctions recommended by the JTC, and adopted by this Court today, would be warranted even without considering these additional findings of fact, we believe that these additional findings provide relevant background and context and demonstrate more fully the nature and magnitude of respondent's misconduct. Furthermore, it is important to emphasize that, unlike the additional findings of fact made by the JTC and discussed in note 24 of this opinion, the additional findings of this Court do not relate to uncharged conduct, and thus respondent does not argue that we cannot consider these additional allegations.
The JTC concluded that respondent engaged in "[m]isconduct in office ... [and] [c]onduct clearly prejudicial to the administration of justice, as defined by the Michigan Constitution of 1963, as amended, Article 6, Section 30 and MCR 9.205" and violated MCR 9.104(1), (2), (3), and (4); MCR 2.003; MCR 2.103; MCR 2.114; and MCL 750.423, as well as Canons 1; 2(A), (B), and (C); and 3(A)(1) and (4) and (C) of the Code of Judicial Conduct. After reviewing the record and hearing oral arguments, we agree with and adopt almost all of the JTC's conclusions of law. We agree with the JTC that respondent engaged in misconduct in office and conduct clearly prejudicial to the administration of justice within the meaning of Const 1963, art 6, § 30 and MCR 9.205. More specifically, we agree that respondent violated MCR 9.104(1) through (4) by engaging in "conduct prejudicial to the proper administration of justice"; "conduct that exposes the legal profession or the court to obloquy, contempt, censure, or reproach"; "conduct that is contrary to justice, ethics, honesty, or good morals"; and "conduct that violates the standards or rules of professional conduct adopted by the Supreme Court[.]" He violated MCR 2.003 by failing to disqualify himself in both the King and Tillman cases.
The purpose of the judicial disciplinary process is to "protect the people from corruption and abuse on the part of those who wield judicial power." In re Jenkins, 437 Mich. 15, 28, 465 N.W.2d 317 (1991). "In determining appropriate sanctions, we seek to `restore and maintain the dignity and impartiality of the judiciary and to protect the public.'" James, 492 Mich. at 569, 821 N.W.2d 144, quoting In re Ferrara, 458 Mich. 350, 372, 582 N.W.2d 817 (1998). We agree with the JTC's assessment of the Brown factors — the considerations that this Court set forth to guide the formation of judicial-discipline recommendations.
The first Brown factor states that "misconduct that is part of a pattern or practice
Finally, as the JTC explained, "the evidence revealed a pattern of dishonesty that included lying under oath to the Commission and to the Master." Respondent lied to the Wayne County Prosecuting Attorney's office about, among other things, when and why he recused himself from the King case, and he lied to the JTC and the master about, among other things, why it took him so long to finally recuse himself from the King case. As the master explained:
As explained by the JTC, respondent also "falsely told the investigators that he immediately recused himself from the case once he realized the conflict." Respondent's pattern of dishonesty is perhaps best summed up in a text message from Mott to respondent: "guess I shoulda believd u in church when u said u can't go 1 day without lien[.]" For all these reasons, we agree with the JTC that "[t]his factor weighs in favor of a more serious sanction."
The second Brown factor states that "misconduct on the bench is usually more serious than the same misconduct off the bench[.]" Id.
The third Brown factor states that "misconduct that is prejudicial to the actual administration of justice is more serious than misconduct that is prejudicial only to the appearance of propriety[.]" Id. at 1293, 625 N.W.2d 744. As the JTC explained:
We agree with the JTC that respondent's misconduct was prejudicial to the actual administration of justice. Indeed, there is not much, if anything, that is more prejudicial to the actual administration of justice than having a sexual relationship with a complaining witness without recusing oneself, engaging in ex parte communications with this mistress/complaining witness, attempting to use the prosecutor's office as leverage against this now ex-mistress by concocting charges of stalking and extortion against her, and then lying under oath about these matters.
Similarly, the fourth Brown factor states that "misconduct that does not implicate the actual administration of justice, or its appearance of impropriety, is less serious than misconduct that does[.]" Id.
The fifth Brown factor states that "misconduct that occurs spontaneously is less serious than misconduct that is premeditated or deliberated[.]" Id.
The sixth Brown factor states that "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[.]" Id. Lying under oath — conduct in which respondent engaged — is certainly "misconduct that undermines the ability of the justice system to discover the truth of what occurred in a legal controversy." In addition, failing to recuse oneself from a case in which one's mistress is the complaining witness, as respondent did in this case, is also misconduct that undermines the ability of the justice system "to reach the most just result in such a case." As the JTC explained:
Therefore, we agree with the JTC that this factor weighs in favor of a more serious sanction.
Finally, the seventh Brown factor states that "misconduct that involves the unequal application of justice on the basis of such considerations as race, color, ethnic background, gender, or religion are more serious than breaches of justice that do not disparage the integrity of the system on the basis of a class of citizenship." Id. We agree with the JTC that there is no evidence that respondent did anything to "disparage the integrity of the system on
Finding that six of the Brown factors weigh in favor of a more serious sanction, and that "Respondent's misconduct affected not only the litigants in the King and Tillman cases, but harmed the integrity of the judicial system as a whole," the JTC concluded that removing respondent from office and conditionally suspending him without pay for six years beginning on January 1, 2015, with the suspension becoming effective only if respondent is reelected to judicial office in November 2014, would be a sufficient sanction.
Just last term, this Court held that lying under oath "`is entirely incompatible with judicial office and warrants removal.'" In re Adams, 494 Mich. 162, 184-185, 833 N.W.2d 897 (2013), quoting In re Justin, 490 Mich. 394, 419, 809 N.W.2d 126 (2012).
That respondent was prepared to engage in this conduct while already undergoing a pending JTC investigation demonstrates the extent of his disregard for the rules of judicial conduct. The people of this state need to know that this Court will not tolerate such disregard for even minimal ethical standards of conduct.
Respondent questions this Court's authority to remove him and conditionally suspend him. This Court's authority to sanction a judge can be found in Const 1963, art 6, §§ 4 and 30. Section 4 provides this Court's general superintending authority over courts:
As this Court has explained:
While "§ 4 does not comprehend the power to permanently enjoin a person from holding juridical office," it does "invest[] this Court with the power to determine that a person is unfit for judicial office and to prevent him from ever exercising judicial power in this state for as long as he is, in our judgment, judicially unfit." In re Probert, 411 Mich. 210, 231, 233, 308 N.W.2d 773 (1981).
Removal and suspension are sanctions that are expressly listed in § 30(2). Finally,
In Probert, 411 Mich. at 222, 308 N.W.2d 773, this Court censured and conditionally suspended Judge Charles V. Probert for five years, "regardless of any possible intervening election or appointment to judicial office." This Court could not remove Judge Probert because he had already left office as the result of his term ending and his defeat in his efforts at reelection. In Probert, this Court recognized that we had on three previous occasions "issued conditional suspensions that would have foreclosed the exercise of the prerogatives inhering in any judicial office to which the disciplined party might have been elected
We agree with the JTC that a removal, without more, would be an insufficient sanction in this case. If we were to remove respondent and he was reelected in 2014, that would amount to a less than one-year suspension (less than two years including his interim suspension), which we believe is clearly insufficient given the seriousness of his misconduct. This Court has a duty to preserve the integrity of the judiciary. Allowing respondent to serve as a judge after only a one-year suspension will not, in our judgment, adequately preserve the integrity of our state's judiciary. Respondent was just recently publicly censured by this Court and yet continued to engage in misconduct, with his attitude toward the instant JTC investigation perhaps being best summarized by his remark that although "Wade should have recused himself," "no harm no foul." This is strongly suggestive that respondent has not yet learned from his mistakes and that the likelihood of his continuing to commit judicial misconduct is high. Such a cavalier attitude about serious misconduct is disturbing, and respondent's apparent failure to comprehend fully the magnitude of his wrongdoing is equally troublesome.
In summary, respondent had an affair with a complaining witness in a case pending before him, had numerous ex parte communications with that witness about the case, extended to her special treatment concerning the case, and caused her reasonably to believe that she was influencing how he was handling her case. When their relationship subsequently went sour, he sought to employ the prosecuting attorney's office as leverage against her by concocting charges of stalking and extortion. And he lied repeatedly to the JTC and the master while under oath. Respondent is now unfit to serve as a judge, and he will remain unfit to do so one year from now.
The cumulative effect of respondent's misconduct convinces this Court that respondent should not remain in judicial office, and we therefore remove him from that office and conditionally suspend him without pay for six years beginning on January 1, 2015, with the suspension becoming effective only if respondent is reelected to judicial office in November 2014.
YOUNG, C.J., and KELLY, ZAHRA, McCORMACK, and VIVIANO, JJ., concurred with MARKMAN, J.
MICHAEL F. CAVANAGH, J. (concurring in part and dissenting in part).
I agree with the majority's factual findings and analysis of the factors from In re Brown, 461 Mich. 1291, 1292-1293, 625 N.W.2d 744 (2000). However, I disagree with the majority's decision to conditionally suspend respondent. Const 1963, art 6, § 30(2) provides four possible sanctions: the Court may censure, suspend with or without salary, retire, or remove a judge. The potential sanctions are listed in order of increasing severity, indicating that the proper discipline should be imposed according to the severity of the respondent judge's conduct. See In re Probert, 411 Mich. 210, 243, 308 N.W.2d 773 (1981) (LEVIN, J., dissenting). Under the Constitution's scheme of increasing sanctions, removal is the most serious sanction and is, therefore, "the means by which judges guilty of serious misconduct are divested of office." Id. at 241 n. 7, 308 N.W.2d 773; see, also, In re Callanan, 419 Mich. 376, 388-389, 355 N.W.2d 69 (1984) (explaining that through removal, we completely terminate all of a respondent's ties to his office).
Because respondent's misconduct is of a grave and serious nature, I would impose the most serious sanction — removal. "[I]n view of the egregiousness of [respondent's misconduct], the public attention to it, and the sanctions meted out by ... this Court," I am "not so cynical about the electoral or appointive process" that I am "concerned about the respondent's re-entry upon the judicial scene." Callanan, 419 Mich. at 389, 355 N.W.2d 69. The majority claims that respondent's removal alone would not sufficiently address the seriousness of his conduct; however, the majority overlooks the fact that "[o]ther institutions, notably the press, serve the public's interest in being informed and may be expected to do so...." Probert, 411 Mich. at 250, 308 N.W.2d 773. In any event, "we always retain the power to determine that a person is unfit for judicial office and to prevent him from ever exercising judicial power in this state for as long as he is, in our judgment, judicially unfit." In re Jenkins, 437 Mich. 15, 29-30, 465 N.W.2d 317 (1991) (quotation marks and citation omitted). Accordingly, I would remove respondent from office and assess costs, but would not impose a conditional suspension.
It can fairly be said that at least several of respondent's text messages to Mott did not "promote public confidence in the integrity and impartiality of the judiciary" and did not treat the subjects of those messages with "courtesy and respect."