In Re HOCKING

546 N.W.2d 234, 451 Mich. 1
CourtMichigan Supreme Court
DecidedMarch 22, 1996
Docket99750, Calendar No. 8
StatusPublished
Cited by30 cases

This text of 546 N.W.2d 234 (In Re HOCKING) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re HOCKING, 546 N.W.2d 234, 451 Mich. 1 (Mich. 1996).

Opinions

Boyle, J.

Formal Complaint No. 48 was filed by the Judicial Tenure Commission1 against Judge G. Michael Hocking on May 12, 1994, and subsequently amended on October 6, 1994. The amended complaint alleged [3]*3that Judge Hocking engaged in acts of misconduct including improper touching, abusive courtroom behavior, inappropriate reasoning at sentencing, abuse of contempt power, abuse of the grievance process, and perjury.

The Honorable Joseph B. Sullivan, the master appointed by this Court on June 14, 1994, conducted hearings on October 25, 26, 27, 28, and November 14 and 30. The master’s report, issued on December 28, 1994, concluded that four of the six instances of alleged behavior constituted misconduct. The master dismissed the charges of improper touching and perjury, finding that these allegations were not supported by a preponderance of the evidence.2 The master further found that Judge Hocking’s reasons for departing from the sentencing guidelines “showed a certain obvious lack of sensitivity towards the feeling of women generally,” that on two occasions Judge Hocking was rude and discourteous,3 and that Judge Hocking’s abuse of the grievance process in two instances constituted “a failure to avoid impropriety and the appearance of impropriety, in violation of the Code of Judicial Conduct Canon 2A.” While not specifically charged in the complaint, the master also made an explicit finding that there was no evidence of gender bias.

Both parties filed objections to the master’s report, and oral argument was held before the commission on March 20, 1995. The commission adopted the majority of the master’s findings and issued its decision and rec[4]*4ommendation of discipline on April 12, 1995.4 In its report, a majority5 of the commission concluded that Judge Hocking was guilty of misconduct for improper remarks made during sentencing. The commission unanimously adopted the master’s findings that in two instances Judge Hocking was rude and discourteous toward two attorneys, and unanimously agreed that Judge Hocking had abused the grievance process in one instance.6 The commission also found a “strong indication of a pattern of gender bias,” but refused to make a [5]*5formal finding in this regard because gender bias was not an allegation formally charged in the complaint.

As a result of this misconduct, a majority of the commission recommended that Judge Hocking be suspended from judicial office for thirty days without pay.7

On May 24, 1995, Judge Hocking petitioned this Court, pursuant to MCR 9.224 and MCR 9.225, to reject or modify the commission’s recommendation, contending that the commission’s findings of misconduct are erroneous.

After review of the record de novo,8 we conclude that the exchange with attorney Elaine Sharp violates the Code of Judicial Conduct. However, while we do not condone Judge Hocking’s controversial tone and courtroom manner in addressing attorney Pamela Maas, or his rationale regarding defendant Hensick’s state of mind, we do not find that this behavior is judicial misconduct. Nor can we conclude that Judge Hocking abused the grievance process. The commission recommended that Judge Hocking be suspended for thirty days without pay for this misconduct. Having concluded that Judge Hocking was not persistently rude and discourteous, MCR 9.205(C), that his remarks during sentencing were not clearly prejudicial to the fair administration of justice, MCR 9.205(C) and that he did not abuse the grievance process, we find no pattern of misconduct. Judge Hocking’s conduct with respect to Ms. Sharp was clearly prejudicial to the administration of justice, MCR 9.205(C)(4), and constitutes misconduct. After reviewing the record in this case and the discipline this Court has imposed in similar cases of judicial mis[6]*6conduct, we find suspension an appropriate sanction, although our conclusions with regard to Judge Hocking’s actions do not warrant the term of suspension recommended.

i

As the cornerstone of our tripartite system of government, the judiciary has a public trust to both uphold and represent the rule of law. Those who exercise authority and those who consent to its exercise have reciprocal obligations. Citizens are bound to observe a certain line of conduct in exchange for the protections of the law, and judges, no less than other officers of government, are bound to conduct themselves with honor and dignity.9 Thus, the ideal judge is a person who has by habit and practice achieved self-control and acquired the virtue of being able to will and act as a just person ought to act.

But as James Madison noted early on, discipline must also come from within the system.

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. [The Federalist Papers, No 51 (New York: Mentor-Penguin Books, 1961), p 322.]

[7]*7The issue before us is whether the record supports the findings of misconduct with which Judge Hocking is charged, and if so, what level of discipline that conduct merits. See In re Bennett, 403 Mich 178, 184; 267 NW2d 914 (1978).

n

Three of the instances of misconduct alleged by the commission arise directly or indirectly from Judge Hocking’s reasons for departing from the sentencing guidelines during the sentencing of Timothy Hensick after conviction for criminal sexual conduct in People v Hensick, Livingston Circuit Court, File No. 91-6537-FC. Although these proceedings do not involve the merits of the Hensick case, because the only issues before us are those relating to the recommended discipline of Judge Hocking, some background is necessary to assess the propriety of Judge Hocking’s conduct and comments.

In Hensick, the criminal sexual conduct charges arose from allegations of oral and digital penetration committed by an attorney with a female client he was representing in divorce proceedings. Between 1:00 and 2:00 A.M. on April 29, 1990, Mr. Hensick called his client and arranged to meet with her at her apartment a short time later. After he arrived, there were two instances of fellatio and Hensick penetrated her digitally. Hensick claimed the sex was consensual and that they parted amicably. His client, however, filed charges claiming that the contact was involuntary.

The element of force or coercion was vigorously disputed by the parties at trial. There was no evidence of physical blows or use of a weapon, or any allegations by the complainant that Hensick used verbal threats to compel her to yield to his advances. Although there was testimony that the complainant herself admitted that Hensick had not threatened her and that perhaps Hen-[8]

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Bluebook (online)
546 N.W.2d 234, 451 Mich. 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-hocking-mich-1996.