Canon 1: A Judge Should Uphold the Integrity and Independence of the Judiciary¹

“An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should personally observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. A judge should always be aware that the judicial system is for the benefit of the litigant and the public, not the judiciary. The provisions of this code should be construed and applied to further those objectives.” Michigan Code of Judicial Conduct, Canon 1.

 

 

 

 

 

 

 

 

 

 

 

Disclaimer: Many of the opinions in this chapter involve more than one Canon of the Michigan Code of Judicial Conduct; however, only information relevant to MCJC 1 is featured in this chapter.

 

 

Engaging in misconduct resulting in removal from office.

•Making false statements under oath, tampering with evidence, and failing to disclose relationship. A judge violated MCJC 1 when she “failed to disclose the extent of her [close, personal] relationship with [a detective, who was a witness in a pending case], to the parties in that case”; “failed to disclose the extent of her [close, personal] relationship with [an attorney and the attorney’s law firm] in several cases over which [she] presided”; “failed to immediately disqualify herself from her own divorce proceeding and destroyed evidence in that divorce proceeding even though she knew that her then-estranged husband had filed an ex parte motion for a mutual restraining order regarding the duty to preserve evidence”; “made false statements (a) during court proceedings over which she presided, (b) to the [Judicial Tenure Commission] while under oath during these proceedings, and (c) while testifying at her deposition under oath in her divorce proceeding”; “was persistently impatient, undignified, and discourteous to those appearing before her” by being “routinely disrespectful to attorneys and litigants,” and hostile toward counsel; “required her staff members to perform personal tasks during work hours”; “allowed her staff to work on her 2014 judicial campaign during work hours”; and “improperly interrupted two depositions that she attended during her divorce proceeding.” In re Brennan, 504 Mich 80, 83-84, 93-95, 103-104 (2019). The “multifarious acts of misconduct” warranted “severe sanctions . . . because of [the judge’s] misconduct in making false statements under oath, in tampering with evidence in her divorce proceedings, and in failing to disclose the extent of her relationship with” a detective in a pending case. Id. at 85, 85 n 11 (judge removed from office).

•Making false statements. A judge “[f]ail[ed] to establish, maintain, enforce, and personally observe high standards of conduct so that the integrity and independence of the judiciary may be preserved, contrary to [MCJC 1],” when she “falsely told her employer that she required a long-term medical leave of absence due to imminent knee surgeries”; “[a]lthough the medical leave was granted, the surgeries were never performed”; the judge “made numerous intentional misrepresentations to the Judicial Tenure Commission regarding her medical condition and efforts to treat it, including efforts to schedule an independent medical examination”; “made false statements to the Commission regarding the scheduling of an independent psychiatric examination”; and “made false statements in pleadings filed in federal court and in [district court].” In re Sanders, 498 Mich 856, 857-858 (2015) (judge removed from office).

•Making false statements and improper docket management. A judge “[f]ail[ed] to establish, maintain, enforce and personally observe high standards of conduct so that the integrity and independence of the judiciary may be preserved, contrary to [MCJC 1],” when she “twice made false statements under oath in connection with her divorce proceeding,” “made and solicited other false statements while not under oath, including the submission of fabricated evidence to the Judicial Tenure Commission,” “improperly listed cases on the no-progress docket,” and “was absent excessively and engaged in belated commencement of proceedings, untimely adjournments, and improper docket management.” In re Nettles-Nickerson, 481 Mich 321, 322-323, 332 (2008) (judge engaged in other misconduct not relevant to MCJC 1 and was removed from office).

•Engaging in inappropriate relationship, engaging in ex parte communications, and lying under oath. A judge violated MCJC 1 “by failing to maintain ‘high standards of conduct so that the integrity and independence of the judiciary may be preserved’” when he “(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.” In re McCree, 495 Mich 51, 55-56, 72 (2014), quoting MCJC 1. The Michigan Supreme Court noted its “duty to preserve the integrity of the judiciary,” and indicated that the judge “was just recently publicly censured . . . yet continued to engage in misconduct,” which “is strongly suggestive that [the judge] has not yet learned from his mistakes and that the likelihood of his continuing to commit judicial misconduct is high.” Id. at 86. “Such a cavalier attitude about serious misconduct is disturbing, and [the judge’s] apparent failure to comprehend fully the magnitude of his wrongdoing is equally troublesome.” Id. at 86-87 (judge removed from office).

•Committing perjury and falsifying legal documents. A judge “violated [MCJC 1] by failing to maintain ‘high standards of conduct so that the integrity and independence of the judiciary may be preserved’” when she “(a) committed perjury; (b) signed her former attorney’s name on legal documents without the latter’s permission and filed these documents also without such permission; and (c) made numerous misrepresentations of fact under oath during the JTC proceedings”; “[t]he cumulative effect of [the judge’s] misconduct convince[d] [the Michigan Supreme Court] that [the judge] should not remain in judicial office.” In re Adams, 494 Mich 162, 164, 179 (2013), quoting MCJC 1 (judge removed from office).

•Misappropriating public funds. A judge’s misconduct violated MCJC 1 when she “misappropriated public funds, some of which were intended for victims of crime”; “inappropriately spent much of this money on self-promoting advertisements and travel expenses for herself and various other court employees”; “treated these funds . . . as her own ‘publicly funded private foundation’”; “denied people access to the court by instituting and enforcing an improper business-attire policy”; “employed a family member in violation of court policy”; and “made numerous misrepresentations of fact under oath during the investigation and hearing of th[e] matter.” In re James, 492 Mich 553, 555-556, 558 (2012). “The cumulative effect of [the judge’s] misconduct, coupled with its duration, nature, and pervasiveness, convince[d] [the Michigan Supreme Court] that she [was] unfit for judicial office”; “[a]lthough some of her misconduct, considered in isolation, [did] not justify such a severe sanction, taken as a whole her misconduct r[ose] to a level that require[d] her removal from office.” Id. at 556 (judge removed from office).

•Disregarding the law. A judge’s misconduct violated MCJC 1 when he engaged in “numerous instances of documented judicial misconduct,” including “‘fixing’ (personally and surreptitiously dismissing) traffic citations issued to himself, his spouse, and his staff; preventing the transmission of or altering court information that was legally required to have been transmitted to the Secretary of State; dismissing cases without conducting hearings or involving the prosecutor; failing to follow plea agreements; and making false statements under oath during the JTC hearing.” In re Justin, 490 Mich 394, 396, 398 (2012). “[T]he common themes running throughout [the judge’s] substantiated acts of misconduct [were] a calculated disregard for the law and an intentional effort to undermine the judicial process, as deemed warranted or expedient by the [judge]”; “[s]uch misconduct evince[d] an unacceptable disregard for the role of judge as well as disdain for due process and the right of parties to a fair hearing.” Id. at 413. The judge’s “actions [were] completely antithetical to the privilege of being a judge as well as disdain for due process and the right of parties to a fair hearing.” Id (judge removed from office).

 

Interfering with the administration of justice. 

•Misusing authority to influence criminal investigation. A judge “fail[ed] to establish, maintain, enforce, and personally observe high standards of conduct so that the integrity and independence of the judiciary may be preserved, contrary to [MCJC 1],” when he “engaged in a sustained campaign to prevent [his intern] from facing legal consequences for her actions by interfering with a police investigation and the subsequent prosecution, in addition to providing false information in his answer to the formal complaint.” In re Simpson, 500 Mich 533, 555, 564-565 (2017). Specifically, the judge “used his position as a judge in an effort to scuttle a criminal investigation of his intern” by arriving at the scene of the drunk-driving accident, identifying himself to the police as a judge, and interrupting the sobriety-testing process. Id. at 546-547. Further, the judge “improperly acted as a legal advocate for [his intern] and used his position as a judge to thwart the township’s criminal prosecution of his intern” and “succeeded for a time in delaying the issuance of the charges.” Id. at 548. Finally, the judge “made ‘an intentional misrepresentation or a misleading statement’ when he attributed the ‘vast bulk’ of his communications with [his intern] to [a case they were working on]” because “[t]he sheer number of communications–which were frequently exchanged during the night and on weekends–is inconsistent with [the judge’s] explanation that the communications related to court business.” Id. at 553-554 (judge suspended for nine months without pay).

•Attempting to influence investigation. Where a judge was involved in an automobile accident and “knew one of the investigating officers who arrived at the scene,” “[t]his existing relationship, coupled with [the judge’s] attempted direction to the officer concerning the type of investigation that he should conduct with regard to the other driver . . . had the potential to erode the public’s confidence in the judiciary” in contravention of MCJC 1. In re Brown (After Remand), 464 Mich 135, 139-141 (2001) (judge suspended for 15 days without pay).

•Misusing authority to influence case. A judge “fail[ed] to establish, maintain, enforce and personally observe high standards of conduct so that the integrity and independence of the judiciary may be preserved, contrary to [MCJC 1],” when a county commissioner was arrested for a domestic altercation and the judge “directed his staff to obtain a copy of the initial police report, which was obtained by accessing [the police department’s] computer system at [the courthouse]”; “directed that a fax be sent to the [jail] reporting that he had sent a personal recognizance bond for [the defendant]”; and “did not contact the [police department] for additional information, but relied on the initial investigation report in determining to authorize the bond.” In re Logan, 486 Mich 1050, 1051-1052 (2010) (judge publicly censured).

•Example where engaging in extrajudicial contact does not rise to level of misconduct. A judge did not violate MCJC 1 when he failed to terminate a meeting with an individual whose asset acceptance case was assigned to another judge, and faxed a letter on official district court stationery to the individual’s attorney; while the judge’s actions “reflected poor judgment,” they did not constitute judicial misconduct. In re Hultgren, 482 Mich 358 (2008) (judge cautioned “to more carefully conform his actions to the rules and provisions that guide judicial conduct”).

 

Engaging in sexual misconduct.

•Sexual misconduct including criminal activity. A judge “[f]ail[ed] to observe high standards of conduct so that the integrity and independence of the judiciary may be preserved as described in [MCJC 1],” when he “[k]issed a female court employee on the lips on several occasions, all of which were not welcome by the employee”; “[m]ade unwelcome physical contact with female court employees, including placing his hands on their buttocks or breasts”; “[m]ade sexually suggestive comments to a female court employee”; “[u]sed court computer equipment to view pornographic web sites via the Internet”; “[r]estricted use of the computer by other court employees in order to cover up his accessing of pornographic web sites”; “[w]as charged with 4th-degree criminal sexual conduct . . . for his physical contacts with female court employees”; and “[w]as charged with common-law misconduct in office . . . for physically assaulting employees while serving in a publicly elected office as a district court judge[.]” In re Ford, 469 Mich 1251 (2004) (judge publicly censured, the most severe punishment that may be imposed on a judge who has resigned).

•Sexual harassment. A judge “[f]ail[ed] to establish, maintain, enforce and personally observe high standards of conduct so that the integrity and independence of the judiciary may be preserved, contrary to [MCJC 1],” when he “engaged in a course of conduct constituting sexual harassment” of his judicial secretary for several years; “[a]lthough his misconduct occurred while off the bench, it was serious and related to his administrative duties as a judge.” In re Iddings, 500 Mich 1026, 1029-1030 (2017). The judge’s deliberate “misconduct created an offensive and hostile work environment that directly affected the job performance of his judicial secretary in her dealings with the public and the court’s business and affected the administration of justice.” Id. at 1030 (judge publicly censured and suspended for six months without pay).

•Indecent exposure. A judge “[f]ail[ed] to observe high standards of conduct so that the integrity and independence of the judiciary is preserved, contrary to [MCJC 1],” when he exposed his genitalia to an undercover police officer in an airport bathroom. In re Halloran, 466 Mich 1219, 1220 (2002) (judge publicly censured and suspended for 90 days without pay).

•Inappropriate drawings and comments. A judge violated MCJC 1 when he “compromised the integrity of the court” by making “lewd drawings–one of female breasts and one of a penis–on notes that were attached to two court files” on two separate occasions, and by commenting on the “small chest size” of a female employee during a retirement party at the courthouse. In re Servaas, 484 Mich 634, 638, 641, 651 (2009). While the judge’s “conduct concerning the comment and two drawings was unquestionably inappropriate,” his actions were viewed as “an aberration given his 35 years of apparent unblemished service” as a district court judge. Id. at 637 (judge publicly censured).

 

Exhibiting lack of judicial temperament. 

•Using controversial tone and manner. Where a judge’s “conduct demonstrate[d] a pattern of persistent interference in and frequent interruption of the trial of cases; impatient, discourteous, critical, and sometimes severe attitudes toward jurors, witnesses, counsel, and others present in the courtroom; and use of a controversial tone and manner in addressing litigants, jurors, witnesses, and counsel,” that “frequently resulted in appellate reversal of trials over which he had presided,” “[s]uch behavior undermines public confidence in the integrity and impartiality of the judiciary” in contravention of MCJC 1. In re Moore, 464 Mich 98, 132-133 (2001) (judge suspended for six months without pay).

•Engaging in demeaning conduct. A judge “[f]aile[d] to observe high standards of conduct so that the integrity and independence of the judiciary is preserved, contrary to [MCJC 1],” by engaging in “demeaning conduct” toward a defendant in a case where he “was rude, and yelled at [the defendant] without provocation,” and by “deliberate[ly] fail[ing] to comply with the dictates” of the court rule regarding disqualification in a case in which defense counsel had a pending grievance against the judge. In re Bradfield, 465 Mich 1309, 1310-1313 (2002) (judge publicly censured and suspended for 30 days without pay).

•Failing to be patient and dignified. A judge “[f]ail[ed] to establish, maintain, enforce, and personally observe high standards of conduct so that the integrity and independence of the judiciary may be preserved, contrary to [MCJC 1]” and “[f]ail[ed] to be aware that the judicial system is for the benefit of the litigant and the public, not the judiciary, contrary to [MCJC 1],” when he was not “patient and dignified” and made improper comments to and about a defendant that he sentenced to jail for contempt of court. In re Post, 493 Mich 974, 976-977 (2013) (judge publicly censured and suspended for 30 days without pay).

•Using insulting, demeaning, and humiliating language. A judge violated MCJC 1 by failing to “‘observe[] high standards of conduct so that the integrity and independence of the judiciary may be preserved’” when, during a “protracted and highly contentious divorce and custody case,” she “failed to act in a patient, dignified, and judicial manner during the contempt proceedings against the three children, aged 9, 10, and 13, directing to them . . . comments and gestures far exceeding the proper bounds of stern language permitted to a judge.” In re Gorcyca, 500 Mich 588, 595, 614-615 (2017). The judge “did not observe high standards of conduct and did not preserve the integrity of the judiciary when she mocked the children, threatened them, called them ‘crazy’ and ‘brainwashed,’ exaggerated or lied about the conditions at [an out-of-home care, custody, and treatment center], and generally expressed hostility to the children and their mother,” and “exhibited a lack of judicial temperament during the proceedings in open court when she directed at the three children and their mother language that was insulting, demeaning, and humiliating.” Id. at 615, 643 (judge publicly censured).

•Arriving late to work. A judge “[f]ail[ed] to establish, maintain, enforce and personally observe high standards of conduct [so] that the integrity and independence of the judiciary may be preserved, contrary to the [MCJC 1],” when matters were set for hearing and she repeatedly arrived late to the courthouse, because “some of the litigants, attorneys and witnesses may not have been able to have their matter addressed in as timely a fashion as they would have had if [the judge] had arrived at the courthouse by 9 a.m.” In re Gibson, 497 Mich 858, 859-860 (2014) (third alteration in original) (judge publicly censured and suspended for 30 days without pay).

 

Failing to fulfill judicial duties.

•Engaging in ex parte communications. A judge “[f]ail[ed] to establish, maintain, enforce and personally observe high standards of conduct so that the integrity and independence of the judiciary may be preserved, contrary to [MCJC 1],” when he e-mailed the prosecuting attorney regarding caselaw pertinent to two pending cases, without notifying defense counsel, and proceeded to disparage the prosecutor’s office for alerting defense counsel to the ex parte communications. In re Filip, 503 Mich 956, 959 (2019) (judge publicly censured).

•Failing to properly handle cases and complete work responsibilities. A judge violated MCJC 1 by improperly handling numerous cases; for example, at an arraignment, the judge inexplicably facilitated a defendant’s release, “plac[ing] the interests of [defendant] and his counsel . . . ahead of all other interests, including protection of the public.” In re Hathaway, 464 Mich 672, 674, 676, 678, 681-682, 690 (2001). And “[t]he improper effort to persuade [a defendant] to waive his right to a jury trial [was] another example of a serious one-time breach of [the judge’s] responsibility to use her judicial power lawfully” that “surely was connected to a more serious problem that was ongoing–her prolonged failure to attend in timely fashion to the business of her court.” Id. at 690. Another case demonstrated the judge’s “refusal to do her work [that] caused profound suffering for the family of the victim and outrageous inconvenience for the witnesses” where the judge initiated 16 of 21 adjournments and ultimately recused herself from the case, causing further delay, which amply demonstrated “the remarkable extent of [the judge’s] failure to discharge her judicial duties.” Id. It was not “a failure to move papers or to file administrative reports” nor “a judge having a ‘bad day’–or several”; rather, the judge “simply declined over an extended period to do her work.” Id. at 690-691. “A judge’s whimsical decision whether to work on a particular day, or during particular months, cannot take precedence over the affairs brought to the courthouse by the people for resolution.” Id. at 691-692 (judge suspended for six months without pay).

•Failing to follow the law. A judge violated MCJC 1 when he engaged in misconduct “arising out of criminal cases in which [he] was the presiding judge,” and “the totality of the evidence . . . paint[ed] a portrait of a judicial officer who was unable to separate the authority of the judicial office he holds from his personal convictions.” In re Morrow, 496 Mich 291, 295, 298-299, 299 n 9 (2014) (quotation marks and citation omitted). Specifically, (1) the judge “closed the courtroom to the public and the victim’s family during a postconviction hearing without specifically stating the reasons for the closure or entering a written order as required by [court rule]” and “subsequently ordered his court reporter not to prepare transcripts of the hearing”; (2) “failed to sentence a defendant . . . with the mandatory minimum . . . as prescribed by [statute], despite the prosecutor’s bringing the relevant statute to his attention,” and “later discharged the defendant from probation without the defendant having served the mandatory [sentence]”; (3) “refused the prosecutor’s request to remand the defendant . . . to jail awaiting sentencing as required by [statute]”; (4) “following the defendant’s guilty plea, . . . dismissed the case sua sponte on the basis that a previous dismissal order was with prejudice,” and “[w]hen the prosecutor informed him that his justification was contradicted by the record[,] . . . [he] stated that the dismissal was ‘conditional with prejudice’”; (5) “failed to place a sidebar conference on the record, failed to rule on the defendant’s request for a curative instruction, and failed to follow instructions from the Court of Appeals to hold an evidentiary hearing on a contested legal issue, and his ruling on remand was not supported by the trial record”; (6) “at the beginning of a trial over which he was to preside . . . left the bench, shook hands with the defendant, and gave a package of documents to defense counsel”; (7) “sua sponte subpoenaed medical records of the defendant without the parties’ knowledge or consent”; and (8) “personally retrieved an inmate from lockup, escorted him to his courtroom, and sentenced him without restraints or courtroom security personnel present.” Id. at 295-297; see also id. at 297 n 3. The Michigan Supreme Court noted that “although judicial officers should strive to do justice, they must do so under the law and within the confines of their adjudicative role.” Id. at 300 (judge suspended for 60 days without pay).

•Failing to follow the law. A judge “[f]ail[ed] to establish, maintain, enforce, and personally observe high standards of conduct so that the integrity and independence of the judiciary may be preserved, contrary to [MCJC 1],” when he arraigned a disruptive individual “for contempt of court outside of his presence [(swearing at court staff)], based only on the unsworn conversation he had heard between [court staff], his own observations, and his conversation with [the court clerk]”; “did not disqualify himself, or raise the issue of his possible disqualification, based on his receipt of the information communicated in the . . . conversation with [the court clerk]”; and denied the defendant’s motion for disqualification. In re Wiley, 495 Mich 963, 965-966, 968 (2014) (judge publicly censured.)

•Failing to advance case. A judge “[f]ail[ed] to establish, maintain, enforce and personally observe high standards of conduct so that the integrity and independence of the judiciary may be preserved, contrary to [MCJC 1],” when she adjourned a case numerous times and ultimately recused herself, “at which time 18 months had passed after the arraignment, and a trial had not occurred.” In re Moore, 472 Mich 1207, 1208-1210 (2005) (judge publicly censured).

•Resolving child custody dispute with coin flip. A judge “[f]ail[ed] to establish, maintain, enforce and personally observe high standards of conduct so that the integrity and independence of the judiciary may be preserved, contrary to [MCJC 1],” when she resolved a disputed child custody issue by the flip of a coin. In re Brown, 468 Mich 1228, 1232 (2003). The judge “expresse[d] her deep regret for her conduct . . . and for the resulting negative impact on the public perception of judges, the institutional integrity of the judiciary, and the administration of justice.” Id. at 1228, 1231 (judge publicly censured).

 

Misusing position. 

•Misusing judicial office for personal benefit. A judge “[f]ail[ed] to observe high standards of conduct so that the integrity and independence of the judiciary may be preserved as described in [MCJC 1],” when he “used official [court] stationery to solicit donations to produce and implement two educational programs and for business correspondence pertaining to the production of related materials”; “used official stationery to solicit contributions to finance events and activities related to these programs, including prominent placement of his name and judicial status in advertising for a concert to benefit his projects”; and “utilized the funds also to publicize himself.” In re Thompson, 470 Mich 1347, 1348 (2004) (judge suspended for 90 days without pay and ordered to pay costs).

•Misusing judicial office for personal benefit. A judge “[f]ail[ed] to observe high standards of conduct so that the integrity and independence of the judiciary is preserved, as described in [MCJC 1],” by (1) “engag[ing] in conduct which reasonably could be viewed as sexually offensive toward a subordinate by altering a screen saver message on her computer screen”; (2) “misus[ing] certain court facilities and equipment, property, or personnel for his personal use”; (3) “engag[ing] in a verbal confrontation with the manager of [a local movie theater], identif[ying] himself as a district court judge, and [being] uncooperative when he was asked to leave”; and (4) purchasing a vehicle that he drove for approximately two weeks “without displaying the temporary paper license plates.” In re Trudel, 465 Mich 1314, 1314-1315, 1317 (2002) (judge publicly censured and suspended for 90 days without pay).

•Engaging in inappropriate relationship. A judge “[f]ail[ed] to establish, maintain, enforce and personally observe high standards of conduct so that the integrity and independence of the judiciary may be preserved, contrary to the [MCJC 1],” when he responded to a card from a defendant on court stationery and inquired if she was interested in seeing him romantically, and continued to e-mail with her thereafter; and when he contacted a judge that had been assigned a criminal case involving a former neighbor. In re Mazur, 498 Mich 923, 924-926 (2015) (judge publicly censured and suspended for 30 days without pay).

•Engaging in inappropriate political activity. A judge “fail[ed] to establish, maintain, enforce and personally observe high standards of conduct so that the integrity and independence of the judiciary may be preserved, contrary to [MCJC 1],” when she engaged in inappropriate political activity while a judge or judicial candidate by simultaneously running for judge and mayor, and failing to discontinue mayoral campaign activities after she was elected to the position of judge and signed the oath of office for an upcoming six-year term; and when she engaged in inappropriate campaign conduct/soliciting contribution when she identified herself as treasurer of her campaign committee and solicited donations to her campaign on her website. In re Sanders, 485 Mich 1045, 1047-1048 (2010) (judge publicly censured and suspended for 21 days without pay).

•Engaging in imprudent behavior. A judge “[f]ail[ed] to establish, maintain, enforce and personally observe high standards of conduct so that the integrity and independence of the judiciary may be preserved, contrary to [MCJC 1],” when he “used his cell phone to make a digital image of himself after completing a half-marathon and captioned the photograph . . . ‘[f]it in my 50’s’”; “showed the digital image to a number of people, including his family, police officers, and deputies who worked in or passed through his courtroom” including digitally sending the image to a sheriff’s department employee “either at her request or on his own . . . approximately a year after it was made”; when interviewed by a reporter, “conducted himself in a flippant manner and did not give the interview the seriousness he should have,” bringing “shame and obloquy to the judiciary”; and, when discussing the digital image with the reporter, stated “‘[t]here is no shame in my game.’” In re McCree, 493 Mich 873, 874-875 (2012) (judge publicly censured).

•Engaging in imprudent behavior. A judge “[f]ail[ed] to personally observe high standards of conduct so that the integrity and independence of the judiciary may be preserved, contrary to [MCJC 1],” when she sent a letter to a sheriff’s association concerning the association’s endorsement of a candidate in the judicial primary that raised questions about the moral fiber of the candidate and her spouse and “did not undertake to independently verify the truth or falsity of the representations[.]” In re Fortinberry, 474 Mich 1203, 1204-1206 (2006) (judge publicly censured).

 

Engaging in misconduct involving alcohol/drugs.

•Driving while intoxicated. A judicial candidate “[f]ail[ed] to establish, maintain, enforce and personally observe high standards of conduct so that the integrity and independence of the judiciary may be preserved, contrary to [MCJC 1], made applicable to respondent, as a judicial candidate, by [MCJC 5]” when, while running for office, she was arrested on suspicion of driving while intoxicated and littering. In re McDonald, 503 Mich 1013, 1016 (2019). Following her election to the bench, she pled guilty to disorderly conduct - littering, with a plea agreement for a delayed sentence and dismissal upon successful completion of probation, and admitted to careless driving. Id (judge suspended for 45 days without pay).

•Driving while intoxicated. A judge “[f]ail[ed] to establish, maintain, enforce and personally observe high standards of conduct so that the integrity and independence of the judiciary may be preserved, in violation of [MCJC 1],” when he operated a motor vehicle with a high blood alcohol content “by towing a boat and trailer out of the water at a public launch and parking on the shoulder of a public road,” and ultimately pleaded guilty to a reduced charge of operating a motor vehicle under the influence of alcohol. In re Tabbey, 497 Mich 900, 901 (2014) (judge publicly censured and suspended for 90 days without pay).

•Driving while intoxicated. A judge “[f]ail[ed] to establish, maintain, enforce and personally observe high standards of conduct so that the integrity and independence of the judiciary may be preserved, in violation of [MCJC 1],” when he “consumed at least four sixteen-ounce glasses of beer” and then drove “at speeds around or in excess of 100 miles per hour.” In re Nebel, 485 Mich 1049, 1049-1050 (2010). The judge’s breath tests “revealed that his bodily alcohol content was 0.09 per 210 liters of breath,” and he was charged with operating a motor vehicle while intoxicated, and ultimately pled guilty to a lesser charge of operating a motor vehicle while impaired. Id. at 1050 (judge publicly censured and suspended for 90 days without pay).

•Using controlled substance. A judge “[f]ail[ed] to establish, maintain, enforce and personally observe high standards of conduct so that the integrity and independence of the judiciary may be preserved, contrary to [MCJC 1],” when he smoked marijuana at a concert and admitted that he used marijuana approximately twice per year during his judicial tenure, because he was simultaneously “trying[,] convicting, and sentencing individuals in his court who had been charged with marijuana offenses.” In re Gilbert, 469 Mich 1224, 1225-1227 (2003) (judge publicly censured and suspended for six months without pay, without credit for an earlier leave of absence).

 

 

 

Grievance investigations concerning various administrative and court-related matters.

•Engaging in excessive absenteeism. A judge had extremely poor work attendance in the preceding two years (66 days and 46 days), in violation of MCJC 1. JTC Case Summary, 14-4 (dismissed with an admonition).

•Engaging in excessive absenteeism/tardiness. A judge had a high rate of absenteeism and tardiness that was a long-standing issue relating to their service on the bench, including frequent late arrival to court and failure to take the bench at the time their docket was scheduled to begin, in violation of MCJC 1. JTC Case Summary, 13-1 (dismissed with an admonition).

•Failing to advance cases. A judge repeatedly adjourned proceedings, took matters under advisement for much longer periods than allowed under the court rules, and ignored the time frames established by the Court of Appeals to conduct a proceeding on remand, in violation of MCJC 1. JTC Case Summary, 16-9 (dismissed with an admonition).

•Failing to fulfill administrative responsibilities. A chief judge did nothing to address the failure of a referee with their court’s Friend of the Court to appear, in violation of MCJC 1. JTC Case Summary, 13-7 (dismissed with a caution).

•Seeking preferential treatment for defendant. A judicial official asked another judicial official to give preferential treatment to a defendant who was akin to family, in violation of MCJC 1. JTC Case Summary, 13-5 (dismissed with an admonition).

 

Grievance investigations concerning various matters in court. 

•Imposing unduly harsh sanction. A judge imposed an eight-month parenting time prohibition against a party for failing to appear at a hearing in a divorce case, without explanation or justification for the harsh sanction, in violation of MCJC 1. JTC Case Summary, 13-6 (dismissed with an admonition).

•Making improper remarks. A judge challenged defense counsel’s trial experience in defendant’s presence and suggested that defense counsel was urging a jury trial for counsel’s own benefit, in violation of MCJC 1. JTC Case Summary, 19-6 (dismissed with an admonishment).

•Making improper remarks. A judge used language at sentencing that conveyed to an objective person that it was the judge’s desire that the defendant had been killed, rather than arrested and convicted, in violation of MCJC 1. JTC Case Summary, 18-3 (dismissed with a caution).

•Making improper remarks. A judge questioned the competency of an attorney in open court, with no foundation for doing so, in violation of MCJC 1. JTC Case Summary, 16-8 (dismissed with a caution).

•Making improper remarks. A judge exhibited intense anger during a meeting with a social support agency; told a defendant that, as a judge, they could tell the defendant when to urinate; and told a defendant that police officers may lie to him, in violation of MCJC 1. JTC Case Summary 16-6 (dismissed with an admonition).

•Making improper remarks. A judge attempted to intimidate a defendant who failed to appear for a hearing by calling the defendant’s cell phone and sarcastically insinuating that the defendant’s capture and punishment were the judge’s personal goals, in violation of MCJC 1. JTC Case Summary, 15-1 (dismissed with an admonition).

 

Grievance investigations concerning various matters outside of court. 

•Exhibiting inappropriate behavior. A judge threw a can at, and used vulgar language toward, volunteers at a public event, in violation of MCJC 1. JTC Case Summary, 15-2 (dismissed with an admonition).

 

 

 

Guidance on engaging in various matters in court.

•Permitting plea bargain in which prosecutor requires defendant to pay prosecution fee in exchange for a sentence reduction. “A judge may not sanction a plea bargain in a criminal case in which the prosecutor requires the defendant to pay a ‘costs of prosecution’ fee to the prosecutor’s office in return for a reduction or dismissal of the pending criminal offense”; “MCJC 1 requires a judge to maintain the independence of the judiciary, free from outside interests,” and “[t]his practice raises several ethical issues not the least of which is that the judge is asked to condone the position that justice is for sale to those who have the resources to pay for a reduction in charges and detrimental to those who do not have sufficient assets to pay the prosecutor’s assessment.” State Bar of Michigan Ethics Opinion, JI-117, January 9, 1998.

•Providing deposition testimony. “A lawyer may seek the testimony of a sitting judge at deposition if the judge/witness is properly subpoenaed” because “MCJC 1 requires judges to uphold the integrity and independence of the judiciary,” and “[p]roviding requested information within the judge’s knowledge and expertise regarding a dispute before the courts enhances, not detracts, from the integrity of the judiciary, and visibly demonstrates that the judge/witness is participating in legal proceedings the same manner as other citizens.” State Bar of Michigan Ethics Opinion, JI-57, August 24, 1992.

•Sitting on case initiated before assuming office. “A judge, to whom a fee may become due as a result of a case initiated by the judge as a lawyer prior to taking the bench, should not hear any matter prosecuted or defended by a lawyer connected with the law firm to which the case was referred, as long as the judge continues to have a financial interest in the outcome of the referred case”; “[a]n honorable and independent judiciary is an indispensable feature of justice in American society” under MCJC 1 and “[a] judge should always avoid a situation tending to cast a doubt upon judicial integrity.” State Bar of Michigan Ethics Opinion, C-228, January, 1983.

 

Guidance on engaging in various matters outside of court.

•Accepting gifts. “A judge, judge’s family member, or staff member may accept gifts that are considered ‘ordinary social hospitality’ but should not accept any other gifts from persons who may appear before the judge” because “judges have a duty to uphold the integrity and independence of the judiciary” under MCJC 1, and “[a] court’s acceptance of gifts of appreciation from lawyers who appear before them may cause other professionals and the public to question those fundamental principles.” State Bar of Michigan Ethics Opinion, JI-146, September 3, 2020.

•Consulting with another judge. “A judge may consult with another judge, individually or by way of listservs, to seek guidance in carrying out the judge’s adjudicative responsibilities so long as the judge does not receive factual information that is not part of the record and the judge makes an independent decision in the matter before the judge” because inherent in MCJC 1 “is the understanding that the jurist serving as the trier of fact in a case must individually decide the case, independent of the opinion of others.” State Bar of Michigan Ethics Opinion, JI-149, March 30, 2020.

•Conducting campaign activity on social media. “Judicial officers and judicial candidates are not limited to conducting campaign activity on only a judicial campaign social media account”; “[s]ince all social media platforms require a mutual consent or acknowledgment to follow on personal or professional social media accounts, there is a general understanding that those who do not want to see such material are able to easily block, hide, or ignore the postings by judicial officers and judicial candidates on those personal and professional accounts.” State Bar of Michigan Ethics Opinion, JI-147, November 1, 2019. “For that reason, judicial officers and judicial candidates are expected to follow the rules for advertising and solicitation that would apply to in-person interactions, simply transferring these guidelines to social media outlets. Mirroring in-person campaign rules, judicial officers and judicial candidates may use social media to notify and advertise their own campaigns on personal and professional accounts, but solicitation and acceptance of campaign contributions are reserved only for judicial candidates’ campaign committees.” Id. “So long as the tenet [in MCJC 1] of integrity and independence at the judicial level is upheld, there is no explicit Michigan ethics violation for judicial officers and judicial candidates who use their personal or professional social media account to inform their followers, or friends on social media, that they are in fact running a judicial campaign.” EO JI-147.

•Moderating a forum conducted by a political party. Because MCJC 1 “obligates all judges . . . at all times to observe high standards of conduct so that the integrity and independence of the judicial system is not compromised in a manner that erodes public confidence in the impartiality of the judiciary, . . . a judicial officer may serve as moderator at a forum on criminal justice initiatives conducted by a political party provided the judge does not comment on pending or impending cases in any court; the judge does not take a position on a legislative initiative that would preclude the judge from later presiding over a case or controversy involving the matter; and, the judge’s participation does not interfere with the performance of the judge’s judicial duties.” State Bar of Michigan Ethics Opinion, JI-121, April 23, 1999.

•Sitting with spouse at political event. “A judge’s spouse may serve on the campaign committee of a nonjudicial candidate and appear as a committee member on campaign letterhead” even though “[o]ccasionally, conduct of members of the judge’s family may be restricted in order to preserve the independence of the judiciary and confidence in the legal system, MCJC 1.” State Bar of Michigan Ethics Opinion, JI-47, March 6, 1992. Further, “[a] judge may sit on the dais with the judge’s spouse who is serving as co-chairperson of a political party social event.” Id. “When considering the possibility of any benefit to the sponsoring political organization from the judge’s attendance at a dinner as spouse of an organizer, it seems that the benefit is minimal”; “[t]he judge is a guest like anyone else” and “is not giving any speeches, nor is the judge responsible for organizing the dinner.” Id. Accordingly, “[t]he judge is not overstepping boundaries by sitting on the dais with the judge’s spouse at a political gathering.” Id.

 

Guidance on serving on various organizations.

•Serving on executive agency. “A district court magistrate may not concurrently serve on a city board of police commissioners.” State Bar of Michigan Ethics Opinion, JI-94, July 27, 1994. “Although the board of police commissioners may serve to facilitate the administration of justice by reviewing and investigating citizen complaints against officers, the fundamental principles of impartiality, independence and integrity of a judge are in conflict with the member’s role on the commission.” Id. “MCJC 1 provides that ‘an independent and honorable judiciary is indispensable to justice in our society,’” and “[t]he board of commissioners is an executive agency appointed by the chief executive of the city, i.e., mayor”; “[t]his conflicts with a strict separation of the judiciary.” EO JI-94. “Accordingly, a district court magistrate’s simultaneous service on the city board of police commissioners violates the Michigan Code of Judicial Conduct by destroying the magistrate’s appearance of impartiality.” EO JI-94.

•Serving on political action committee. “A judge may not serve on a legislative affairs and political action committee whose mission is to support pro-business oriented candidates to partisan or nonpartisan offices.” State Bar of Michigan Ethics Opinion, JI-65, February 25, 1993. “In regard to the issue of impartiality, the judge must be neutral, and therefore, should refrain from participating in furthering or opposing the interests of business.” Id., citing MCJC 1. “By serving as a member of a committee which has taken a stance in favor of or in opposition to a particular sector of the community, the judge is stripped of impartiality and would face recusal on each occasion that the policy or law affecting that sector was the subject matter being contested in a legal proceeding or when a member of that sector appeared before the judge in question.” Id. “It is clear that promoting the interests of the business sector is distinct and apart from the general ‘improvement of the law, the legal system, or the administration of justice’ as it pertains to the courts.” Id.

•Serving on board of legal aid organization. “A judge serving on the board of directors of a nonprofit legal aid organization is required to disclose the relationship when one of the parties appearing before the judge is represented by a lawyer from the legal aid organization.” State Bar of Michigan Ethics Opinion, JI-51, April 3, 1992. “[I]f the legal aid organization has a personal interest in the proceeding, pecuniary or otherwise because of commitment to the particular causes or the enforcement of its own policies, then the judge must recuse from hearing the case or deciding the issue,” because “[t]o sit in judgment on such matters would reflect adversely on the judge’s impartiality contrary to MCJC 1.” Id.

•Serving on board of organization with political ties. “A judge may not serve as a member of the board of directors of a charitable, nonprofit organization which is under the auspices of a political party” because doing so “has the potential of compromising . . . the independence [and] the integrity . . .  of the judiciary” in contravention of MCJC 1. State Bar of Michigan Ethics Opinion, JI-22, May 16, 1990. “Even if it is assumed that the organization is well-distanced from the political party, the mere fact that the foundation bears the name of a deceased leader of the party makes it more probable than not that the judge, as a member of the board, will be perceived by the public to endorse the brand or style of politics engaged in by the deceased political leader.” Id. “In sum, any accomplishments or misfortunes of the proposed charitable foundation accrue to the benefit or disadvantage of the county democratic party, and the national party in general,” and “[a] judge should not be a party to such an endeavor.” Id.

 

Guidance on serving in dual roles. 

•Serving as full-time staff attorney or law clerk and part-time magistrate or part-time referee. “[A] part-time magistrate or part-time referee is subject to the [MCJC] and therefore, must . . . maintain the independence of the judiciary”; accordingly, under MCJC 1 “it is ethically prohibited for an attorney to simultaneously serve as a full-time judicial law clerk or staff attorney and as a part-time magistrate or referee in the same or different jurisdiction.” State Bar of Michigan Ethics Opinion, JI-151, May 13, 2021.

•Serving as case evaluator and judge. “A lawyer who has served as a [case evaluator] under MCR 2.403 may not thereafter preside as judge in a judicial proceeding between the same parties involving the same matter” because MCR 2.403(D)(3) specifically provides that a judge “may not preside at the trial of any action in which he or she served as case evaluator.” State Bar of Michigan Ethics Opinion, JI-112, March 26, 1997.² MCJC 1 “requires that all judges maintain high standards of conduct in order to maintain and preserve the integrity and independence of the judiciary” and “cautions judges against conduct that may be prejudicial to the administration of justice”; accordingly, “[h]aving served on a [case evaluation] panel, a judge cannot thereafter preside at the trial of any action in which the judge served as [case evaluator].” EO JI-112.

•Serving as assistant prosecutor and part-time magistrate. “An assistant prosecutor may not serve as a part-time magistrate for a district court” because “[a] magistrate is a ‘judge’ whose conduct is governed by the Michigan Code of Judicial Conduct” and “judges should refrain from dealings that tend to reflect adversely on their impartiality, MCJC 1.” State Bar of Michigan Ethics Opinion, JI-56, July 24, 1992. “The dual role of prosecutor one day and magistrate the next could cause the person to be dealing with the same defense lawyer or defendant as an adversary on one occasion and as a trier of fact on another”; “[t]he appearance that an advocate may be less vigorous in representing a party against the prosecutor, knowing that on subsequent days the advocate will be appearing before the prosecutor sitting as a magistrate, will affect public confidence in the system of justice.” Id.

 

Guidance on lending support.

•Supporting charitable organizations on social media. “Judges may support charitable organizations on social media so long as the organization will not likely be engaged in proceedings that would ordinarily come before the judge, the judge does not coerce participation by others, and the judge does not individually solicit funds for the organization”; however, “[j]udges shall not individually publish their own specific charitable contributions on social media.” State Bar of Michigan Ethics Opinion, JI-148, November 1, 2019. “Judges may allow their names and photographs to be shown on the website or in the social media of a charitable organization if the use does not: (1) appear to be the judge’s personal solicitation for funds; (2) coerce participation from others; or (3) compromise the integrity of the court.” Id. “Although judges may participate in the activities described above, judges are strongly advised to ensure that their conduct will not erode the integrity and independence of the judiciary” under MCJC 1. EO JI-148.

•Signing resolution endorsing petition. “A judge may not sign a resolution which requests specific action be taken by the mayor and county board of commissioners regarding business closings of a local employer and the union workers it employs.” State Bar of Michigan Ethics Opinion, JI-52, April 27, 1992. “MCJC 1 requires that a judge ‘participate in establishing, maintaining, and enforcing, and should himself observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved’”; accordingly, where “[t]he wording of the [r]esolution is not neutral and impartial” and “[t]he entire thrust of the [r]esolution is to pre-judge the nature of the situation without receiving evidence and without hearing from the [e]mployer’s point of view,” “[f]or a judge to sign the [r]esolution would be showing favoritism and bias for the [u]nion position.” EO JI-52.³