In re Morrow

854 N.W.2d 89, 496 Mich. 291

Opinions

PER CURIAM.

This case comes to the Court on the recommendation of the Judicial Tenure Commission (JTC) that Judge Bruce U. Morrow (respondent) be suspended from office for 90 days without pay. Respondent has filed a petition requesting that this Court reject or modify that recommendation. After review of the entire record and due consideration of the parties’ arguments, we agree with the JTC’s conclusion that respondent committed judicial misconduct, but we are not persuaded that the recommended sanction is appropriate in this case. Instead, we hold that a 60-day suspension without pay is proportionate to the body of judicial misconduct established by the record.

I. FACTS

Respondent is a judge on the 3rd Circuit Court in Wayne County, Michigan. He is therefore subject to all the duties and responsibilities imposed on him by the canons of judicial conduct and the standards for discipline set forth in MCR 9.104 and MCR 9.205.

Before the formal complaint was filed in this case, respondent and the examiner entered into a settlement agreement whereby the parties stipulated to a set of facts involving respondent’s conduct in four criminal cases in which respondent was the presiding judge. As part of the agreement, respondent consented to be publicly censured. The JTC agreed that the stipulated facts established judicial misconduct and, over a two-member dissent, recommended that this Court impose the agreed-upon public censure. The dissenting JTC members would have recommended a 60- to 90-day suspension. This Court rejected the proposed public censure as too lenient in light of the facts presented and remanded for further proceedings while retaining jurisdiction.¹ Thereafter, the JTC reported that the parties were unable to reach a new settlement agreement. In response, this Court entered a confidential order stating that a 90-day suspension was an appropriate order of discipline and that such a sanction would enter unless respondent objected by withdrawing his consent to be disciplined.

Respondent withdrew his consent, and on March 7, 2013, the JTC filed Formal Complaint No. 92 against respondent. The complaint alleges 10 counts of judicial misconduct, all arising out of criminal cases in which respondent was the presiding judge. The facts of each count can be summarized as follows:

Count 1: In People v Orlewicz, Case No. 07-23972, respondent 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 MCR 8.116(D). Respondent subsequently ordered his court reporter not to prepare transcripts of the hearing.

Count 2: In People v Fletcher, Case No. 08-10018, respondent failed to sentence a defendant convicted of operating a motor vehicle while intoxicated, third offense, MCL 257.625, in accordance with the mandatory minimum of 30 days in jail as prescribed by MCL 257.625(9)(c)(¿¿), despite the prosecutor’s bringing the relevant statute to his attention. Respondent later discharged the defendant from probation without the defendant’s having served the mandatory 30 days in jail.

Count 3: In People v Slone, Case No. 09-29628, respondent sentenced the defendant to a prison term 18 months below the sentencing guidelines range.

Count 4: In People v McGee, Case No. 05-8641, respondent refused the prosecutor’s request to remand the defendant convicted of first-degree criminal sexual conduct with a person under the age of 13 to jail awaiting sentencing as required by MCL 770.9b(l).

Count 5: In People v Wilder, Case No. 09-3577, following the defendant’s guilty plea, respondent dismissed the case sua sponte on the basis that a previous dismissal order was with prejudice. When the prosecutor informed him that his justification was contradicted by the record — in fact, the prior dismissal was without prejudice — respondent stated that the dismissal was “conditional with prejudice.”

Count 6: In People v Jones, Case No. 08-13361, respondent sua sponte dismissed the case on the basis of unreliable information in a search warrant affidavit after directing the prosecution to produce all its search warrant records involving a particular confidential informant and was subsequently disqualified from the case by the Court of Appeals.

Count 7: In People v Boismier, Case No. 08-12562, respondent 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.

Count 8: In People v Redding, Case No. 07-3989, at the beginning of a trial over which he was to preside, respon dent left the bench, shook hands with the defendant, and gave a package of documents to defense counsel.

Count 9: In People v Moore, Case No. 06-3221, respondent sua sponte subpoenaed medical records of the defendant without the parties’ knowledge or consent.

Count 10: In People v Hill, Case No. 09-18342-02, respondent personally retrieved an inmate from lockup, escorted him to his courtroom, and sentenced him without restraints or courtroom security personnel present.

On March 15, 2013, this Court appointed the Honorable Edward Sosnik as master. In his report, the master found that a preponderance of the evidence established the factual basis for each of the allegations in the formal complaint. However, the master concluded that the facts constituted judicial misconduct in only two counts— Count 4 and Count 10.² After hearing argument on objections to the master’s report, the JTC issued its decision and recommendation on December 9, 2013. A majority of the JTC disagreed in large part with the master’s conclusions of law, concluding that the evidence established judicial misconduct in eight of the ten allegations.³ On the basis of the disciplinary factors established in In re Brown,⁴ the JTC recommended that respondent be suspended for 90 days without pay.⁵

II. ANALYSIS

A. STANDARD OF REVIEW

Judicial tenure cases come to this Court on recommendation of the JTC, but the authority to discipline judicial officers rests solely in the Michigan Supreme Court.* **⁶ Accordingly, we review de novo the JTC’s findings of fact, conclusions of law, and recommendation for discipline.⁷ The examiner has the burden to prove allegations of judicial misconduct by a preponderance of the evidence.⁸

B. FACTUAL FINDINGS AND CONCLUSIONS OF LAW

After careful review of the factual record in this case, we agree with the master and the JTC that a preponderance of the evidence establishes the factual basis of the allegations in the formal complaint. We further agree that the record establishes that respondent committed the acts of judicial misconduct as set forth by the JTC majority, and we formally adopt its conclusions of law.⁹ In our view, the totality of the evidence in this case paints a portrait of a judicial officer who was unable to “separate the authority of the judicial office he holds from his personal convictions[.]”¹⁰

In Orlewicz, respondent’s perfunctory ruling closing the courtroom to the public and the victim’s family without complying with the governing court rule impeded the proper administration of justice. And, in Fletcher and McGee, respondent’s refusal to follow mandatory statutory language after the controlling authority was brought to his attention evinced a willful failure to observe the law, eroding the public’s confidence in a fair and impartial judiciary. Similarly corrosive of the public’s faith in our judicial system was respondent’s disregard of a superior court order directing him to hold a hearing in Boismier.

In Wilder, respondent’s recasting of a previous order dismissing a case without prejudice to somehow justify his sua sponte dismissal of the case after it was reissued, despite the defendant’s intention to plead guilty, degraded the integrity of the judicial process and the judiciary itself.

In Moore, respondent failed to recognize the limits of his adjudicative role when he subpoenaed the defendant’s medical records without the parties’ knowledge or consent at a point when the case could have gone to trial with him possibly as the trier of fact.

In Hill, respondent recklessly placed himself and others in his courtroom at risk of serious harm by personally bringing a defendant convicted of several violent crimes from lockup and sentencing him without restraints or courtroom security present.

Finally, in Redding, respondent showed poor judgment by coming down from the bench at the start of trial to shake hands with a criminal defendant and deliver papers to his counsel. At a minimum, respondent’s unexplained delivery of documents and peculiar greeting of a litigant under these circumstances created the appearance of impropriety.

In sum, we agree with the JTC that respondent failed to adhere to the high standards of professional conduct that our Constitution, court rules, and canons of judicial conduct require of judicial officers.

Respondent claims his conduct should be immune from action by the JTC because he acted “in good faith and with due diligence!.]”¹¹ Respondent misapprehends the meaning of “good faith.” Acting in disregard of the law and the established limits of the judicial role to pursue a perceived notion of the higher good, as respondent did in this case, is not “good faith.”¹² We do not share respondent’s concern that our decision today spells the end of judicial independence. Rather, it reinforces the principle that, although judicial officers should strive to do justice, they must do so under the law and within the confines of their adjudicative role.

C. PROPORTIONALITY OF RECOMMENDED SANCTION

The JTC recommends that this Court suspend respondent for 90 days without pay. The JTC arrived at this recommendation after finding that six of the seven Brown factors militated in favor of a more serious sanction.¹³ According to the JTC, the evidence revealed “a pattern of willfully disregarding the law and proper legal procedures in the handling of cases.” Not only did the conduct occur on the bench, but “[m]uch of Respondent’s misconduct was prejudicial to the actual administration of justice.” When his conduct did not implicate the actual administration of justice, respondent at least created the appearance of impropriety. The JTC further determined that respondent’s conduct was deliberate, rather than spontaneous, and that “[a] judge [who] fails to follow the law necessarily undermines the ability of the justice system to reach just results.” However, the JTC concluded that none of respondent’s conduct involved the unequal application of justice.

This Court gives considerable deference to the JTC’s recommendations for sanctions, but our deference is not “a matter of blind faith[.]”¹⁴ Instead, it “is a function of the JTC adequately articulating the bases for its findings and demonstrating that there is a reasonable relationship between such findings and the recommended discipline.”¹⁵ Several considerations in this case persuade us to deviate downward from the JTC’s recommended sanction.

This Court’s overriding duty in the area of judicial discipline proceedings is to treat “equivalent cases in an equivalent manner and . . . unequivalent cases in a proportionate manner.”¹⁶ This duty necessarily requires this Court to make qualitative assessments of the nature of the misconduct at issue. In an attempt to fulfill our duty to treat JTC respondents equitably while maintaining predictability and consistency in our judicial discipline decisions, this Court articulated a set of disciplinary factors in In re Brown.17 But the Brown factors are intentionally nonexhaustive.¹⁸ Thus, other relevant considerations not expressly accounted for by the Brown factors may properly inform the disciplinary analysis.¹⁹ One principle that has guided this Court’s disciplinary analysis, but which is not expressly ac counted for by the Brown factors, is the principle that dishonest or selfish conduct warrants greater discipline than conduct lacking such characteristics. Generally speaking, we have imposed greater discipline for conduct involving exploitation of judicial office for personal gain.²⁰ This principle has also been long recognized in the related area of attorney discipline proceedings.²¹

As established above, respondent’s actions in the eight cases constitutes judicial misconduct subject to discipline by this Court, regardless of whether, as the master put it, “his heart [was] in the right place.” However, the fact that he did not seek to personally benefit from his misconduct is a relevant mitigating factor in determining the appropriate discipline.²² In this respect, this case contrasts with two cases involving 90-day suspensions in which the respondents’ misconduct included, among other things, use of their judicial office for personal gain.²³ In a disciplinary scheme that seeks to treat equivalent conduct equivalently and dissimilar conduct proportionately, the fact that we have imposed 90-day suspensions in cases involving conduct that typically warrants greater discipline is a relevant consideration in determining the appropriate sanction in this case.²⁴

A second consideration persuading us to deviate from the recommended 90-day suspension is our assessment of the JTC’s analysis of the first Brown factor.²⁵ Under the first Brown factor, the JTC determined that respondent engaged in “a pattern of willfully disregarding the law and proper legal procedures in the handling of cases.” Although we agree that some of the counts show a pattern of willful disregard of controlling legal authority, we believe the JTC overstated the pattern in this case.

Our review of the record reveals a pattern in Orlewicz, Fletcher, McGee, and Boismier — disregard of controlling authority, be it mandatory statutes or a superior court order. In each of these cases, respondent’s decisions were controlled by unambiguous mandatory language, and in each case respondent defied the controlling authority. The rest of the cases, however, do not fit this pattern. Insofar as the remaining counts showed a “disregard[ for]. . . proper legal procedures,” this “pattern” is so general that it could conceivably describe every instance of judicial misconduct on the bench, in which case the first Brown factor would be rendered meaningless. In cases like this, when the examiner alleges a collection of isolated incidents of misconduct, a more nuanced analysis is necessary to ensure that we treat “equivalent cases in an equivalent manner and . .. unequivalent cases in a proportionate manner.”²⁶

The remaining counts of misconduct — Wilder, Red-ding, Moore, and Hill — share nothing in common except for the fact that they constitute judicial misconduct. Although the number of instances of misconduct is an important consideration in determining the appropriate sanction in judicial discipline cases, the first Brown factor focuses specifically on whether the respondent continued to engage in the same type of judicial misconduct, thereby signifying judicial conduct more harmful to the integrity of the judicial system. In none of the remaining counts did respondent repeat the same type of misconduct. The remaining counts are too unrelated — occurring in separate cases and involving different types of misconduct — to constitute a meaningful pattern for purposes of the first Brown factor. In sum, the JTC overstated the extent to which the first Brown factor weighed in favor of a harsher sanction.

In determining the appropriate sanction in this case, we recognize that respondent’s case is unlike any other case we have dealt with in recent years, which naturally makes it harder to identify an appropriate baseline on which to apply the Brown factors.²⁷ Many of respondent’s acts of misconduct, taken alone, would probably warrant no more than a public censure. The other more serious instances of misconduct, taken alone, would likely merit a short suspension. However, when the allegations are aggregated and the body of misconduct is considered as a whole, a greater sanction is necessary to protect the integrity of the judiciary as an institution.²⁸ Mindful that the Brown factors weigh in favor of a more serious sanction — though not as heavily as the JTC’s analysis implies — we conclude that a 60-day suspension is proper. In concluding that a deviation is warranted in this case, we acknowledge that at a prior stage in these proceedings, this Court stated that a 90-day suspension was appropriate on the facts presented at the time. However, after careful study of the record subsequently developed in this case, and in light of our previous judicial discipline decisions, we conclude that when a judge commits a series of legal errors for which there can be no colorable good-faith excuse, a 60-day suspension is a sufficiently severe sanction to protect the integrity of the judiciary while also maintaining fidelity to the overarching principle that equivalent conduct be treated equivalently.²⁹

hi. CONCLUSION

Respondent’s judicial misconduct requires that he be suspended in order to restore the public’s faith and confidence in the judiciary. However, for the reasons stated above, we find that the recommended 90-day suspension is disproportionate to the judicial misconduct established on this record. We therefore modify the JTC’s recommendation and order that Honorable Bruce U. Morrow, Judge of the 3rd Circuit Court, be suspended without pay from the performance of his judicial duties for a period of 60 days, effective 21 days from the issuance of this opinion. Pursuant to MCR 7.317(C)(3), the Clerk is directed to issue the judgment order forthwith.

Markman, Kelly, Zahra, McCormack, and Viviano, JJ., concurred.

Footnotes

1

In re Morrow, 493 Mich 878 (2012).

2

According to the master, “[Tjhere is a pattern in ... these cases, but not necessarily as described by the Examiner. Respondent’s ‘pattern’ of judging is to proactively prevent legally wrongful results. Though his methods are sometimes unorthodox, ‘his heart is in the right place’ ensuring in his mind, that justice prevails in the criminal justice system.”

3

The JTC made no mention of two of the alleged instances of misconduct, Counts 3 and 6, evidently agreeing that these counts did not establish judicial misconduct. Our review of the record in those cases leads us to the same conclusion. Accordingly, we need not address these allegations further.

4

In re Brown, 461 Mich 1291 (2000).

5

One JTC member, 3rd Circuit Court Judge Michael Hathaway, concurred in part and dissented in part. He would have concluded that respondent’s handling of the Orlewicz, Wilder, and Boismier cases (Counts 1, 5, and 7) did not constitute judicial misconduct. However, he concurred in the recommendation for a 90-day suspension.

6

Const 1963, art 6, § 30.

7

In re James, 492 Mich 553, 560; 821 NW2d 144 (2012).

8

MCR 9.211(A).

9

In particular, we agree with the JTC that respondent committed the following acts in violation of the corresponding canons and court rules governing judicial conduct: misconduct in office, Const 1963, art 6, § 30(2) and MCR 9.205; conduct prejudicial to the administration of justice, Const 1963, art 6, § 30(2), MCR 9.205(B), and MCR 9.104(1); failure to establish, maintain, enforce, and personally observe high standards of conduct “so that the integrity and independence of the judiciary may be preserved,” Canon 1; irresponsible or improper conduct that erodes public confidence in the judiciary, Canon 2A; conduct involving impropriety and the appearance of impropriety, Canon 2A; failure to respect and observe the law, Canon 2B; failure to conduct oneself in a manner that promotes public confidence in the integrity and impartiality of the judiciary, Canon 2B; failure to be faithful to the law, Canon 3A(1); and conduct that exposes the legal profession and the courts to obloquy, contempt, censure, or reproach, MCR 9.104(2).

10

In re Hague, 412 Mich 532, 562; 315 NW2d 524 (1982).

11

MCR 9.203(B).

12

See Hague, 412 Mich at 552-554 (concluding that the respondent’s willful disregard of gun-control and prostitution laws was properly subject to sanctions by the JTC).

13

The seven factors, as set forth in Brown, are:

(1) misconduct that is part of a pattern or practice is more serious than an isolated instance of misconduct;

(2) misconduct on the bench is usually more serious than the same misconduct off the bench;

(3) misconduct that is prejudicial to the actual administration of justice is more serious than misconduct that is prejudicial only to the appearance of propriety;

(4) misconduct that does not implicate the actual administration of justice, or its appearance of impropriety, is less serious than misconduct that does;

(5) misconduct that occurs spontaneously is less serious than misconduct that is premeditated or deliberated;

(6) 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;

(7) 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. [Brown, 461 Mich at 1292-1293.]

14

Id. at 1292.

15

Id.

16

Id.

17

Id. at 1292-1293.

18

See id. at 1293 (“The JTC should consider these and other appropriate standards that it may develop in its expertise, when it offers its recommendations.”) (emphasis added).

19

Despite our exhortation in Brown, the JTC has not formally adopted additional standards for determining the appropriate sanction for par ticular misconduct. We take this opportunity to again encourage the JTC to develop such standards so they may be applied in future judicial discipline proceedings.

20

See, e.g., In re McCree, 495 Mich 51; 845 NW2d 458 (2014) (the respondent judge used his position to violate court security policies and engage in numerous ex parte communications with the complaining witness in a case before him in order to pursue a sexual relationship with her); In re James, 492 Mich 553; 821 NW2d 144 (2012) (the respondent judge misappropriated funds for her personal benefit); In re Justin, 490 Mich 394; 809 NW2d 126 (2012) (the respondent judge “fixed” traffic tickets for himself, his wife, and his staff).

21

American Bar Association Standards for Imposing Lawyer Sanctions (ABA Standards), Standard 9.22(b), available at [http://perma.cc/ P9WG-Ú39T], accessed June 16, 2014 (listing “dishonest or selfish motive” as an aggravating factor in deciding the appropriate sanction to impose).

22

See, e.g., ABA Standard 9.32(b) (listing “absence of a dishonest or selfish motive” as a mitigating factor in deciding the appropriate sanction to impose). The record in this case reveals some confusion regarding this principle, so we take this opportunity to clarify the appropriate role of a respondent’s motive in judicial disciplinary proceedings. The master concluded that respondent’s actions in eight of the ten allegations were not misconduct because “ ‘his heart [was] in the right place’ ” In rejecting the master’s approach, the JTC stated that judicial misconduct must be reviewed under an objective, rather than subjective, standard. We agree with the JTC that the standard for determining whether something constitutes judicial misconduct in the first place is an objective one. See In re Ferrara, 458 Mich 350, 362; 582 NW2d 817 (1998). However, when determining the appropriate sanction for particular misconduct, the JTC (and this Court) may properly consider a respondent’s subjective intent along with other mitigating and aggravating factors. See, e.g., In re Tschirhart, 422 Mich 1207, 1209-1210 (1985) (recognizing that the respondent’s subjective intent “properly receive[s] consideration”); see also Brown, 461 Mich at 1293 (stating that “misconduct that involves the unequal application of justice on the basis of such considerations as race, color, ethnic background, gender, or religion” warrants a more severe sanction). It does not appear that the JTC took respondent’s motive into account when fashioning its recommended sanction.

23

See In re Thompson, 470 Mich 1347 (2004); In re Trudel, 465 Mich 1314 (2002).

24

For this same reason, we decline to equate this case to previous cases in which this Court imposed a 90-day suspension for the commission of a crime. See In re Nebel, 485 Mich 1049 (2010) (operating a motor vehicle while visibly impaired in violation of MCL 257.625(3)); In re Steenland, 482 Mich 1230 (2008) (same); In re Halloran, 466 Mich 1219 (2002) (exposing genitals to undercover police officer, the facts of which constitute a violation of the indecent exposure statute, MCL 750.335a). Needless to say, violation of the criminal law necessarily undermines a judge’s ability to sit in judgment of others, which explains why this Court has consistently imposed at least a 90-day suspension for the perpetration of even a single crime. The same cannot necessarily be said of the types of misconduct present in this case.

25

The first Brown factors provides that “misconduct that is part of a pattern or practice is more serious than an isolated instance of misconduct[.]” Brown, 461 Mich at 1292.

26

Id.

27

The Chief Justice is correct that our judicial discipline jurisprudence lacks a formal framework for determining the appropriate level of discipline in a particular case, and this Court has begun taking steps to address this deficiency through our administrative process. But simply labeling the misconduct as “lawlessness” provides no substantive tools to assist the JTC and this Court in the yeoman’s work of qualitatively assessing the facts of future JTC cases in light of this and other JTC decisions. Because the JTC provided no meaningful explanation for why a 90-day suspension is proportionate to respondent’s misconduct, it is incumbent upon this Court to independently assess the misconduct in the context of our prior decisions and legal principles to determine a sanction proportionate to respondent’s misconduct. By doing so, we have answered the Chief Justice’s call “to work to establish consistent and transparent standards for establishing levels of sanctions.”

28

See In re Moore, 464 Mich 98, 118; 626 NW2d 374 (2001).

29

We thus take no issue with the Chief Justice’s conclusion that respondent’s misconduct requires a significant sanction. Unlike the dissent, however, we believe a suspension of any length is a serious matter. We further believe that a 60-day sanction will make it clear to respondent, the bench, and the public that misconduct of this type will not be tolerated. We caution, however, that our decision today should not be read as setting the upper limit for this type of misconduct should future cases present additional aggravating circumstances or lack the mitigating circumstance presented here. In the absence of predetermined sanction guidelines, this Court must qualitatively assess respondent’s misconduct in the context of prior JTC cases to determine where the misconduct falls on the spectrum. Although the dissent would equate respondent’s misconduct to criminal behavior like indecent exposure, this Court is persuaded that violation of the criminal law and using one’s judicial office for personal gain are qualitatively more serious than the set of disparate incidents of misconduct in this case, many of which, taken alone, would probably warrant no more than a public censure.