In re James

821 N.W.2d 144, 492 Mich. 553

• Court: Michigan Supreme Court
• Decided: July 31, 2012
• Docket: Docket No. 143942
• Status: Published

Opinions

MAKILYN 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 which were intended for victims of crime in the city of Inkster. She inappropriately spent much of this money on self-promoting advertisements and travel expenses for herself and various other court employees. She treated these funds, as the master phrased it, as her own “publicly funded private foundation.” In addition, she (1) denied people access to the court by instituting and enforcing an improper business-attire policy, (2) employed a family member in violation of court policy, and (3) made numerous misrepresentations of fact under oath during the investigation and hearing of this matter.

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.

I. FACTS AND PROCEDURAL HISTORY

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 9.205¹ and is subject to the duties and responsibilities imposed on her by this Court.

On October 26, 2011, the JTC filed Formal Complaint No. 88 against respondent, alleging four counts of misconduct.² It asserted that respondent had engaged in (1) financial improprieties, (2) administrative improprieties, (3) employment improprieties, and (4) misrepresentations to the JTC. On that same date, it also filed a petition for interim suspension and a request for appointment of a master. On December 15, 2011, this Court appointed retired District Court Judge Ann Mattson as the master and ordered respondent suspended from office with pay until further order of the Court.³ She has been on suspension ever since.

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.⁴ In summary, the master stated that “[Respondent failed to diligently discharge her administrative responsibilities . . . [and] [h]er actions demonstrated her lack of respect for the law.” Respondent was found to have committed misconduct in office as defined in Const 1963, art 6, § 30 and MCR 9.205(B)(1), and to have violated MCR 9.104(1) and (2); MCR 9.205(A); Code of Judicial Conduct, Canons 1,2(A) through (C), 3(A)(1) and (2), 3(B)(1), and 6(B); MCL 600.4803; MCL 600.8379; MCL 750.174; MCL 750.175; MCL 750.218; MCL 600.8501; MCL 600.8507; MCL 750.249; and Administrative Order No. 1996-11.

The JTC issued its decision and recommendations for discipline on June 11, 2012. It adopted all but one⁵ of the master’s findings, concluding that “[r]espondent’s prolonged and repeated pattern of misconduct in purposefully violating statutes, misappropriating public funds, and making intentional misrepresentations both before and after these proceedings commenced render her unfit to sit as a judge.”

In determining the sanctions appropriate for respondent, the JTC considered the seven factors that the Court set forth in In re Brown.6 It concluded that four of the seven weighed in favor of severe sanctions. It recommended that respondent be removed from office and that she pay $81,181.88 for costs, fees, and expenses incurred as a result of this investigation.

II. ANALYSIS

The Michigan Constitution grants this Court general superintending control over all the state courts in Michigan.⁷ It authorizes this Court to “censure, suspend ... or remove a judge for . .. misconduct in office, persistent failure to perform his duties, habitual intemperance or conduct that is clearly prejudicial to the administration of justice” upon recommendation of the JTC.⁸ The Court may accept or reject the recommendations of the JTC or modify them by imposing greater, lesser, or entirely different sanctions.⁹

We review the recommendations of the JTC de novo.¹⁰ We also review de novo the JTC’s findings of fact.¹¹

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.

A. FINANCIAL IMPROPRIETIES

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.¹² These funds were collected from members of the public and were indisputably subject to MCL 775.22 and MCL 780.826a,¹³ which govern how they should be allotted. The statutes require that the first 50 percent of certain CSP-fund payments be allocated to crime victims in restitution for their financial losses as a result of criminal acts.

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.¹⁴

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 CSE She chose 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 CSE She also allocated CSE funds to local charities of her choice¹⁵ and spent them on travel¹⁶ and other expenses as she deemed fit.¹⁷

The facts also show that respondent authorized payments to three CSE 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 CSP¹⁸ Thus, although she had been warned that she was disobeying state law, respondent continued to refuse to establish a budget for the CSP account four years later.

B. ADMINISTRATIVE IMPROPRIETIES

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 policy against everyone who sought entry to the courthouse. There was evidence that litigants were prejudiced by this policy and that some visitors were inappropriately denied access to the courthouse. In her responsive brief, respondent argued that “somehow [the business-attire policy] was improperly enforced .. ..” (Emphasis omitted.) She refused to acknowledge that she alone was responsible for overseeing the enforcement of her dress policy in the 22d District Court. The master noted that, although the judicial canons allow a judge to require that certain attire be worn in the courtroom, the requirements must be reasonable.

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.”¹⁹ Respondent was the lone judge in her court, and she was responsible for implementing the business-attire policy; therefore, she was responsible for its proper and reasonable enforcement.²⁰ Respondent should have known that people were appearing for court and being turned away because of her policy. And she should have taken steps to prevent this from happening.

C. EMPLOYMENT IMPROPRIETIES

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.²¹ We agree. Even more troubling, respondent required the magistrate to sign bench warrants in violation of MCL 600.8511.²² As a consequence, approximately 15,000 bench warrants were improperly issued and had to be reissued after respondent’s suspension. Respondent testified that she did not instruct the magistrate to sign the warrants. However, the magistrate testified that signing bench warrants was one of his responsibilities. Making respondent’s contention even less credible is the fact that she was the only person at the 22d District Court who had the legal authority to sign bench warrants. It is impossible that she would not have noticed the significant drop in the number of warrants she was signing after rehiring this magistrate.

The JTC findings also established that respondent violated the Supreme Court’s antinepotism policy by hiring her niece. The Court’s antinepotism policy²³ allows family members to continue working for the court if they were employed by the court at the time the policy was enacted. Respondent’s niece worked for the court when the policy was enacted but later resigned. About six months later, respondent rehired her niece, which violated the policy. Respondent claimed that although she knew of the violation, she thought the rehiring complied with a policy of the city of Inkster. Paradoxically, respondent had told the city that court employees were not subject to the city’s employment rules. Respondent had a duty to contact the State Court Administrative Office to determine the proper course of action when court policy conflicted with the city’s policy. She made no effort to do this.

D. MISREPRESENTATIONS TO THE MASTER AND THE JTC

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.²⁴ However, testimony at the hearing established that frequent-flier miles have no actual cash value because they cannot be sold or converted for cash. They are more akin to coupons. It was also shown that respondent could have purchased a ticket for much less than $1,137.50. It is apparent that respondent knew this because she wrote herself a check for $349.40, not $1,137.50.

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,²⁵ we are left with the conclusion that respondent lied under oath.

As discussed previously, respondent also denied that she instructed the magistrate to sign bench warrants. However, the magistrate testified that respondent assigned this duty to him. The master specifically found the magistrate’s “testimony that Respondent required him to sign bench warrants credible.”

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.

III. CONCLUSION

“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.”²⁶ In determining appropriate sanctions, we seek to “restore and maintain the dignity and impartiality of the judiciary and to protect the public.”²⁷

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.²⁸ Judge James’s misconduct persisted for years, permeating and infecting every corner of the 22d District Court. For this reason and for the others stated in this opinion, we agree with the JTC’s recommendation and order that respondent be removed from office.²⁹

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.³⁰ In addition, because certain of the misappropriated funds were by law to be paid to crime victims, the JTC may specify the amount that respondent should have allotted to victim restitution.³¹ Respondent shall be given an opportunity to respond to the bill of costs.

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.

1 MCR 9.104, entitled in part “Grounds for Discipline in General,” states in relevant part:

The following acts or omissions by an attorney, individually or in concert with smother person, are misconduct and grounds for discipline, whether or not occurring in the course of an attorney-client relationship:

(1) conduct prejudicial to the proper administration of justice;

(2) conduct that exposes the legal profession or the courts to obloquy, contempt, censure, or reproach;

(3) conduct that is contrary to justice, ethics, honesty, or good morals;

(4) conduct that violates the standards or rules of professional conduct adopted by the Supreme Court;

(5) conduct that violates a criminal law of a state or of the United States, an ordinance, or tribal law pursuant to MCR 2.615;

(6) knowing misrepresentation of any facts or circumstances surrounding a request for investigation or complaint;

(7) failure to answer a request for investigation or complaint in conformity with MCR 9.113 and MCR 9.115(D);

(8) contempt of the board or a hearing panel[.]

MCR 9.205, entitled “Standards of Judicial Conduct,” states:

(A) Responsibility of Judge. 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.

(B) Grounds for Action. A judge is subject to censure, suspension with or without pay ... or removal for . . . misconduct in office, persistent failure to perform judicial duties, habitual intemperance, or conduct that is clearly prejudicial to the administration of justice. In addition to any other sanction imposed, a judge may be ordered to pay the costs, fees, and expenses incurred by the commission in prosecuting the complaint only if the judge engaged in conduct involving fraud, deceit, or intentional misrepresentation, or if the judge made misleading statements to the commission, the commission’s investigators, the master, or the Supreme Court.

(1) Misconduct in office includes, but is not limited to:

(e) misuse of judicial office for personal advantage or gain, or for the advantage or gain of another; and

(f) failure to cooperate with a reasonable request made by the commission in its investigation of a judge.

(2) Conduct in violation of the Code of Judicial Conduct or the Rules of Professional Conduct may constitute a ground for action with regard to a judge, whether the conduct occurred before or after the respondent became a judge or was related to judicial office.

(3) In deciding whether action with regard to a judge is warranted, the commission shall consider all the circumstances, including the age of the allegations and the possibility of unfair prejudice to the judge because of the staleness of the allegations or unreasonable delay in pursuing the matter.

2 An amended formal complaint was filed on March 1, 2012.

3 In re James, 490 Mich 936 (2011).

4 The examiner must present the evidence in support of the charges set forth in the complaint and at all times has the burden of proving the allegations by a preponderance of the evidence. MCR 9.211(A); see also In re Ferrara, 458 Mich 350, 360; 582 NW2d 817 (1998).

5 The JTC did not adopt a finding by the master that respondent had misrepresented whether any food purchased with Community Service Program funds had ever been taken to her home.

6 In re Brown, 461 Mich 1291 (2000).

7 Const 1963, art 6, § 4.

8 Const 1963, art 6, § 30(2).

9 MCR 9.225.

10 Ferrara, 458 Mich at 358-359.

11 In re Jenkins, 437 Mich 15, 18; 465 NW2d 317 (1991).

12 Respondent established the CSP to make available sentencing alternatives for nonviolent defendants. This type of program can be found at various courts in the state. Defendants were sentenced to the CSP as an alternative to, or sometimes in addition to, incarceration. They were charged $10 to $25 a day in oversight fees and were required to perform various community-service tasks within the city of Inkster, such as mowing lawns for the elderly and maintaining the court grounds. Some of the fees were allocated to the CSP

13 MCL 775.22 states in relevant part:

(1) If a person is subject to any combination of fines, costs, restitution, assessments, probation or parole supervision fees, or other payments arising out of the same criminal proceeding, money collected from that person for the payment of fines, costs, restitution, assessments, probation or parole supervision fees, or other payments shall be allocated as provided in this section.

(2) Except as otherwise provided in this subsection, if a person is subject to payment of victim payments and any combination of other fines, costs, assessments, probation or parole supervision fees, or other payments, 50% of all money collected from that person shall be applied to payment of victim payments, and the balance shall be applied to payment of fines, costs, supervision fees, and other assessments or payments. If any fines, costs, supervision fees, or other assessments or payments remain unpaid after all of the victim payments have been paid, any additional money collected shall be applied to payment of those fines, costs, supervision fees, or other assessments or payments. If any victim payments remain unpaid after all of the fines, costs, supervision fees, or other assessments or payments have been paid, any additional money collected shall be applied toward payment of those victim payments.

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:

(1) If a person is subject to any combination of fines, costs, restitution, assessments, probation or parole supervision fees, or other payments arising out of the same criminal proceeding, money collected from that person for the payment of fines, costs, restitution, assessments, probation or parole supervision fees, or other payments ordered to be paid in that proceeding shall be allocated as provided in this section. If a person is subject to fines, costs, restitution, assessments, probation or parole supervision fees, or other payments in more than 1 proceeding in a court and if a person making a payment on the fines, costs, restitution, assessments, probation or parole supervision fees, or other payments does not indicate the proceeding for which the payment is made, the court shall first apply the money paid to a proceeding in which there is unpaid restitution to be allocated as provided in this section.

(2) Except as otherwise provided in this subsection, if a person is subject to payment of victim payments and any combination of other fines, costs, assessments, probation or parole supervision fees, or other payments, 50% of each payment collected by the court from that person shall he applied to payment of victim payments, and the balance shall be applied to payment of fines, costs, supervision fees, and other assessments or payments. If a person making a payment indicates that the payment is to be applied to victim payments, or if the payment is received as a result of a wage assignment under [MCL 780.826] or from the sheriff under [MCL 780.830a], the payment shall first be applied to victim payments. If any fines, costs, supervision fees, or other assessments or payments remain unpaid after all of the victim payments have been paid, any additional money collected shall be applied to payment of those fines, costs, supervision fees, or other assessments or payments. If any victim payments remain unpaid after all of the fines, costs, supervision fees, or other assessments or payments have been paid, any additional money collected shall be applied to payment of those victim payments.

14 The master compared deposits in the court’s CSP account before respondent’s suspension with deposits made after respondent had been suspended. At that point, the interim judge who replaced respondent had directed the clerks to stop overriding the JIS system. For example during the month of August 2010, under respondent’s administration, $7,366 was credited to the CSP account. During the month of August 2011, under the interim judge, only $433 was deposited into the CSP account. Respondent argued that the difference is because there were fewer participants in the program under the interim judge. The evidence established that this was not true. The interim judge testified that the program was fully operational in August 2011. The court’s probation officer also supported this statement.

15 Respondent authorized the distribution of more than $14,000 from the CSP account to local charitable, fraternal, and religious organizations from 2008 until her suspension in 2011. These expenditures included donations for a “table for ten at a testimonial event,” a local basketball camp, a police auxiliary annual picnic, cheerleader uniforms, and a school “Europe fund.” None was a proper operational expenditure of the CSE Proper expenditures were only those that paid for the operation of the program, such as flowers to be planted or lawn mowers to maintain the lawns of needy Inkster senior citizens.

16 Respondent also used the account to fund her own and other employees’ travel expenses totaling $13,000, including travel to drug court conferences in California and Massachusetts. Respondent repeatedly estimated expenses for herself and other employees and wrote checks for the estimated expenses from the CSP account. None of the recipients was required to track or document his or her spending or reimburse the court for expense payments not used for court-related business. This practice violated Code of Judicial Conduct, Canon 6(B). Drug court conferences were not proper operational expenses of the CSE It is also worth noting that Inkster has never established a drug court.

17 Additional expenses included gifts for board members of the Tax Increment Finance Authority, embroidered shirts bearing respondent’s name, a court newsletter, funeral flowers, and expenses related to Law Day. None of these was a proper operational expenditure of the CSE

18 The "control deficiency” section of this audit report stated: “No budget was prepared for the Community Service Fund which is a special revenue fund. According to the state budget act, a budget is required for all general and special revenue funds. A budget should he prepared and approved prior to July 1 of each fiscal year.”

19 MCR 9.205(A).

20 The master also found that this conduct violated MCR 9.104(1) because it was prejudicial to the proper administration of justice.

21 A magistrate is required by MCL 600.8501 and MCL 600.8507 to be a resident and registered elector. Respondent attempted to circumvent these requirements by hiring a magistrate pursuant to a multidistrict plan. The State Court Administrative Office rescinded the appointment because the magistrate did not meet the residency requirements. One month later, respondent reappointed the same magistrate and signed Local Administrative Order 2002-5, attesting that he was a resident and registered elector of Inkster. Respondent argued that she thought the magistrate was qualified. He testified that he was not a resident of Inkster and was not a registered voter in the city. Respondent failed in her duty to verify this information before she attested to its truthfulness in LAO 2002-5 and before she rehired the magistrate.

22 MCL 600.8511 permits magistrates to sign arrest warrants, not bench warrants.

23 Administrative Order No. 1996-11.

24 The price for a frequent-flier mile is $0.35.

25 In re Noecker, 472 Mich 1, 9-10; 691 NW2d 440 (2005).

26 Jenkins, 437 Mich at 28.

27 Ferrara, 458 Mich at 372.

28 In re Justin, 490 Mich 394; 809 NW2d 126 (2012).

29 Respondent is no longer a judicial officer and will not be an incumbent at the time of the 2012 general election for the 22d District Court. See In re Nettles-Nickerson, 481 Mich 321, 323; 750 NW2d 560 (2008).

30 MCR 9.205(B).

31 Const 1963, art 6, § 4. The superintending power of the Supreme Court has been interpreted as extremely broad and inclusive:

“It is hampered by no specific rules or means for its exercise. It is so general and comprehensive that its complete and full extent and use have practically hitherto not been fully and completely known and exemplified. It is unlimited, being bounded only by the exigencies which call for its exercise. . ..”

... [I]ts purpose [is] “to keep the courts themselves ‘within bounds’ and to insure the harmonious working of our judicial system.” [In re Huff, 352 Mich 402, 417-418; 91 NW 2d 613 (1958) (citations omitted).]