In Re Seitz

495 N.W.2d 559, 441 Mich. 590

• Court: Michigan Supreme Court
• Decided: February 3, 1993
• Docket: 90794, (Calendar No. 1)
• Status: Published

Opinions

Brickley, J.

INTRODUCTION

On April 12, 1991, this Court appointed retired Circuit Judge William R. Peterson as master to preside over the hearing of Formal Complaint No. 43, filed by the Judicial Tenure Commission against Honorable James McCauley Seitz, Monroe County Probate Court, Monroe, Michigan.¹

The twenty-five paragraph complaint centered on the following general acts of alleged misconduct:²

1. Wilful neglect of adoption docket and refusal to respond to requests by the State Court Administrator’s Office (scao);

2. Abuse of contempt power;

3. Improper delegation of authority to release juveniles from youth home facility;

4. Order that certain youth home personnel be barred from his courtroom or from working on any cases assigned to him;

5. Improper order that predispositional assessments and psychological evaluations be conducted by outside psychologists;

6. Unprofessional relationship with and hostile attitude toward employees;

7. Installation of a telephone listening device;

8. Encouraging employees to commit perjury;

9. Improper handling of and disqualification from a particular adoption case — In re Brown;

10. Failure to file reports with the scao.

These events spanned two and one-half years, from August 3, 1988, through January 8, 1991. The commission charged that the alleged acts constituted violations of the standards of judicial conduct under MCR 9.205 and the Code of Judicial Conduct.

Beginning on October 7, 1991, the master heard testimony for nine days. Although he found that the commission failed to prove all the allegations of the twenty-five-paragraph complaint³ — some were not found to be proven by a preponderance of the evidence and others not to amount to judicial misconduct — he did conclude that Judge Seitz engaged in acts demonstrating a pattern of gross judicial misconduct, namely:

A. Installation of a telephone listening device;

B. Abuse of contempt power;

C. Unprofessional relationship with and hostile attitude towards employees;

D. Wilful neglect of adoption docket and refusal to respond to requests by the scao;

E. Failure to file reports with the scao.

After hearing the testimony of witnesses and arguments of counsel, the master submitted his report on December 31, 1991. The commission met in open session to hear oral arguments regarding the master’s report on March 9, 1992. It adopted in full the master’s findings of fact and conclusions of law that provided the basis for its decision and recommendation of discipline issued on April 13, 1992.

The commission concluded that Judge Seitz was guilty of judicial misconduct that served to undermine the effectiveness of the judiciary and has engendered public disrespect for the office he holds. The commission stated that Judge Seitz has demonstrated, in a number of instances, over a substantial period of time, that he does not possess those qualities essential to be a competent judge, and that his wilful violations have impugned the honesty and integrity of his court and the entire Michigan judiciary. Therefore, the commission recommended that the Supreme Court remove respondent from office, and bar him from ever again holding judicial office.

It becomes our task, by reviewing de novo the record of this case, to conclude whether "the conduct charged to Judge [Seitz] and found by the Commission is established by the record. The issues for our consideration, then, are whether that conduct is of a nature warranting discipline and, if so, whether removal, as recommended by the Commission majority or some other form of discipline should be imposed.” In re Bennett, 403 Mich 178, 184; 267 NW2d 914 (1978).⁴

I. FACTS & ARGUMENTS

James McCauley Seitz has a history of being unable to work in an amicable environment with anyone, be it people of authority, co-workers, or employees. When he first became a judge of the Monroe County Probate Court in 1977, hostilities began almost immediately between him and the chief judge and only colleague on the bench, Harry Seitz. Judge Harry Seitz resigned in 1985.⁵ Before his vacancy was filled, the respondent discharged Harry Seitz’ court reporter-secretary, Mrs. Trow-bridge, which led to legal action by her against the respondent and Monroe County.

Joseph Costello, with the urging of respondent, was appointed to fill the vacancy. What began as an amicable relationship between the two judges quickly deteriorated. The situation was so hostile, the then Chief Justice of this Court appointed Court of Appeals Judge John Gillis to act as chief judge⁶ and assigned the State Court Administrator to act as special administrator of the Monroe County Probate Court. Judge Gillis named Judge Costello as chief judge pro tern, resulting in his becoming acting chief judge when the appointment of Judge Gillis as chief judge ended at the end of 1988.⁷

Since that time the Monroe County Probate Court has been in a state of disarray. In referring to Judge Seitz and Judge Costello, the master summarized as follows:

They have overwhelmed associates, staff, the State Court Administrator’s Office and the Judicial Tenure Commission with complaints against one another, and have generated an impressive volume of complaints from others. Staff, caught up in the turmoil, have become pawns between the two, compelled to work in an environment of suspicion and hostility. Contact was reduced to written memoranda, employees made notes of events and compiled dossiers on judges and each other. Some of them brought law suits and one went to jail. Respondent secretly taped his telephone conversations.

Central to an understanding of much of what transpired in the period during which the charges against respondent arose is his relationship with his secretary/court reporter. In discussing that relationship, the master stated:

In early 1983, Cindy Paz was hired by respondent to be his secretary-recorder. Mrs. Paz, now Mrs. Cameron, failed the test for court recorder three times but was kept on the job by respondent and a bizarre relationship developed. She was described as rough, which is a fair description. Indeed, the tenor of conversation between the two, in the presence of other court staff or in private, took on the atmosphere of a bawdy house with sexual references and gifts of a crude and vulgar nature. Both respondent and Mrs. Cameron deny that a sexual relationship existed between them; if not, it would appear that respondent was trying to create one. He hinted to her that they should run off together; he discussed his matrimonial problems with her and described his wife to her in the most unflattering terms. He would drop in at her home at all hours of the day or night, often bringing liquor with him; he bought her expensive clothes. He was generous and helpful to her. And he expected absolute loyalty of her in his conflicts with Judge Seitz, Judge Costello and others, insisting that she refer to them in the crudest of terms and that she avoid contacts with them.

After the divorce of Mrs. Paz, in 1989, respondent drank heavily, talked more of his unhappy marriage, made suggestions to Mrs. Paz that they might run off together, and told her not to rush into any relationship with anyone else as he might be divorced. He would sometimes pass messages to Mrs. Paz through her friend, Irene Leonard, and in January of 1990 he told Mrs. Leonard (who told Mrs. Paz) that he was going to give Mrs. Paz a trip to Florida. . . . Mrs. Paz did not intend to and did not go to Florida. Later Mrs. Paz, without telling respondent, become engaged to Larry Cameron, an intake worker at the Youth Center. On Feb. 7, when respondent learned of the engagement from someone else, he vomited. He then gave her a bizarre series of notes and tapes, and sent her a message through Mrs. Leonard not to come to work because he might hurt her. Mrs. Paz sought employment elsewhere in the county system . . . and, with her new husband, is now suing respondent.

It was in this milieu that the following episodes occurred.

A. TELEPHONE LISTENING DEVICE

In the summer of 1988, Mrs. Cameron, suspecting that her husband was involved with another woman, asked Judge Seitz to install a tap for recording conversations on her home telephone. She alleges that Judge Seitz accompanied her to Radio Shack, insisted on purchasing the equipment himself with his credit card, and assisted her in installing the telephonic eavesdropping device. Judge Seitz emphatically denies purchasing and installing such equipment.⁸

He does not deny that his assistance was requested, but that he declined the request after conferring with his friend, Judge James Carr, a United States Magistrate for the Northern District of Ohio. Judge Carr informed Judge Seitz that recording a third-party conversation is a felony and thereafter, according to respondent, he had no involvement in the matter.⁹ He testified that he was later informed by Mrs. Cameron that someone else helped her install the device.¹⁰

The master concluded that, although the testimony of the two was diametrically opposed, Mrs. Cameron’s was the more credible. The commission agreed. They specifically found that Judge Seitz had violated the eavesdropping statutes, MCL 750.539c; MSA 28.807(3) and MCL 750.539f; MSA 28.807(6), by installing a telephone tape recording system at the home of Mrs. Cameron. In terms of specific grounds of misconduct, the master stated:

His violation of the criminal code violates virtually all of the Canons of Judicial Ethics and is misconduct under MCR 9.205(C)(4), clearly prejudicial to the administration of justice.

On the same topic, the commission concluded:

Finally and most egregiously, Respondent’s violations of the criminal statutes betray his very oath of office. By installing the surveillance device and by providing Mrs. Cameron with the device, knowing her purpose, Judge Seitz was guilty of felonious conduct, grossly inappropriate to this office. There can be no greater offense to the judicial system than a judge who has such contempt for the law that he breaks it as it suits him.

This alleged misconduct by Judge Seitz amounts to the only significant factual dispute in the matters at issue in this case — whether or not he participated in the installation of an eavesdropping device, an act that could constitute a felony.

Although we might be inclined to honor the request for additional testimony were we to accept the finding of an act that would constitute a felony, we need not do so. The undisputed facts demonstrate Judge Seitz’ embroilment in his employee’s marital dispute, use of his own recording device to surreptitiously record conversations, and knowledge that his employee also intended to commit and had commenced what he believed to be a felony. Such actions, while individually not necessarily constituting a specific charge, support our conclusions regarding Judge Seitz’ overall lack of judicial temperament and sense of propriety as developed in this opinion.¹¹

B. ABUSE OF CONTEMPT POWER

In November of 1988, Judge John Gillis, acting as chief probate judge assigned by the Supreme Court, issued an administrative order that required youth home residents to have their hearings conducted at the youth home, a facility operated under the direction of the probate court for the detention and treatment of juveniles. The youth center is a maximum detention facility, and this order was issued for security reasons and to avoid transportation to the courthouse.

In January 1989, when Judge Costello assumed control of the court after the assignment of Judge Gillis expired, the superintendent of the youth center was Daniel Gentner. Judge Costello, who favored the administrative order, informed him that it was to be followed and that juveniles were not to be brought from the center to the courthouse for hearings.

Judge Seitz, who did not favor the order, issued orders in two cases contrary to Judge Costello’s directions to Mr. Gentner.¹² However, hearings were not held because the juveniles were not brought from the center. During the third week of January, Mr. Gentner met with Judge Seitz to discuss the conflicting orders. Judge Seitz told him that Judge Gillis’ order was invalid. Mr. Gentner said that he did not want to disobey Judge Seitz, but that he felt he was required to follow the orders of the chief judge. Judge Seitz indicated that he recognized Mr. Gentner’s position. He did not, however, inform Mr. Gentner that he intended to comply with the order. In fact, Judge Seitz immediately scheduled two hearings to be held in his courtroom. Mr. Gentner did not transport the juveniles from the center. Instead, the hearings were held by conference call.

Judge Costello then issued Administrative Order No. 1989-2, a verbatim copy of Judge Gnus’ order. He submitted the order in February 1989 to the State Court Administrator’s Office for approval under the court rule. The order was approved in March 1989.

The order continued to be a topic of discussion between Judge Seitz, Judge Costello, and the scao. On May 5, 1989, Judge Seitz issued an order to the youth home director, stating that on May 10 the director, Mr. Gentner, was to release a juvenile female to her father after 9:00 a.m. for a hearing to be conducted in the courthouse that afternoon.¹³ The order contained the statement that failure to comply would be deemed contempt. This caused the master to conclude that Judge Seitz was deliberately trying to trap Mr. Gentner.¹⁴ Mr. Gentner expressed his concern about the order to Judge Costello, who instructed Mr. Gentner not to release the girl to her father. Mr. Gentner testified that in any conflict, he thought he would be required to follow the directive of the chief judge. When the father came to the center that morning, he was told that his daughter could not be released.

Judge Seitz sent deputies to the youth home and had Mr. Gentner arrested and brought to his courtroom. Judge Seitz conducted a "mock” hearing devoid of due process. When Mr. Gentner asked for counsel he was ignored. Judge Seitz ordered that Mr. Gentner call the youth home and have the girl released. Mr. Gentner respectfully cited the order and directives of Judge Costello.¹⁵ Judge Seitz found Mr. Gentner in contempt of court and ordered him jailed.¹⁶ Judge Seitz accused his colleague, Judge Costello, of obstruction of justice and requested that the prosecutor bring criminal charges. He also filed a grievance against him with the Judicial Tenure Commission.¹⁷

Judge Seitz argued that he was not required to follow the order because it was never published and he was never given a copy of it after it was approved. MCR 8.112(B) contains no requirement for publication of administrative orders or the giving of notice. Judge Seitz was aware that the order had been issued by Judge Costello and that it had been submitted for the scao’s approval. He also was aware that both Judge Costello and Mr. Gentner considered it to be effective. He testified that he did not know the order had been approved by the scao, nor did he bother to make any inquiry with regard to whether the order had been approved. The master found that the testimony was "an outright falsehood or contemptuously indifferent to the necessities of judicial administration.”

Judge Seitz argued that it was common practice to release children before a hearing if the recommendation was that they be sent home on probation. Judge Seitz states in his brief that it was his intention to permanently release the juvenile on probation, and, therefore, the juvenile was no longer a party "detained at the Monroe County Youth Center” and Administrative Order No. 1989-2 did not apply.¹⁸

After making findings of fact on this topic, the master made the following observations:

No conclusion can be reached but that this was an abuse of judicial power for the sole purpose of humiliating the Chief Judge Pro Tern and perhaps subjecting him to prosecution on a trumped up charge of obstruction of justice. The Superintendent of the Youth Center, whose sole offense was following the orders of Judge Costello, was to be humiliated as well. Respondent’s stubborn resolve not to conform to Administrative Order 1989-2 could have been accomplished by more subtle and considerate means than those employed here. And, had respondent any concern for his court and for his court’s employee, Mr. Gentner, he could have resolved this particular case in many other ways ... by adjournment, by using an order to show cause rather than a bench warrant, or even by going forward with the hearing without the presence of the juvenile. Respondent testified that he felt sorry for Mr. Gentner, but it is clear that he had no feeling whatever for him. His conduct was an abuse of judicial power so grossly prejudicial to the administration of justice, MCR 9.205(C)(4), as to deserve the severest sanction.[¹⁹]

In agreeing with the master’s findings, the commission concluded that Judge Seitz abused his judicial power for the sole purpose of humiliating others in violation of Canon 3A(9) of the Code of Judicial Conduct.²⁰

The respondent would have us resolve this incident on the question whether he knew about the approval of the administrative order by the scao and whether this factual situation was in violation of the order. While we think both questions can be answered affirmatively, it is sufficient to find, as did the master and the commission, that the facts amply support the conclusion that Judge Seitz was intent upon subverting the rules of his court and the decisions of his chief judge with which he disagreed, and that in doing so he demonstrated a penchant for creating tension and contention in the courthouse.

The master and the commission have properly found, as do we, that the facts of this episode amount to a violation of the standards of judicial conduct and are deserving of sanction.

C. UNPROFESSIONAL RELATIONSHIP WITH AND HOSTILE ATTITUDE TOWARDS EMPLOYEES

The formal complaint charged that Judge Seitz encouraged his secretary, Mrs. Cindy Cameron, to be uncivil toward other court personnel, describing his colleagues and others in offensive and obscene language. Respondent’s own witness, Ms. Nina Jordan, testified about his abusive language to her about Judge Costello’s personnel and the Probate Registrar’s office._

In December 1989, Mrs. Cameron and Judge Seitz were invited to Judge Costello’s staff Christmas luncheon. When Mrs. Cameron informed Judge Seitz about the event he told her that if she was planning on going, she could pack her "F ’ing bags.” He then wrote her a memo rationalizing his strong opposition to the luncheon and also discussed office civility in general.

For two years we’ve been deliberately excluded from the Christmas lunch by the worthless, juvenile, dishonest, immature[,] brain dead idiot down the hall.

[I didn’t get any support when] all those terrible things were printed about me in the paper after the bald headed fucking political hack from the Court of Appeals said all those lies in the newspaper.

I did 90% of the work in this Court when fucking worthless Harry Seitz was here — he only did the uncontested estate hearings and all the adoptions. He never conducted a trial, and he dumped half of the crazy people hearings on me because that required a little work.

I also patiently waited and waited and waited until I would be the Chief Judge and change things — I had to wait until Harry left.

Then, stupidly, I tried to treat Costello as an equal, and not do the things to him that I had been subjected to. I also did all sorts of things for the pigs across the hall — stupid little things — like leting [sic] them wear pant suits, and take time off when they needed it for family emergencies— things that Harry never allowed.

I got what I deserved for trying to be nice and decent to these people — kicked in the face repeatedly and being subjected to ridicule and criticism, led by ignorant fat assholes like Carol Thurman.

I don’t think you realize how strong my feelings are about this, and how deep and intense my hatred is for him and for what he’s done to a court that I built up for 12 years.

[T]he only person I can rely on is you, or the person that occupies your position. That position is my personal employee, and loyalty has to be 100% to me — not to anybody else.

I know that its [sic] difficult sometimes, especially when you may find it fun to go with the rest of the staff or whatever. But the situation here doesn’t permit that split loyalty.

You enjoy a lot of job privileges that nobody else is entitled to, and I want the assurance from you that I do have 100% loyalty. I can’t and won’t continue with anything less.

I’ll do anything in the world for you, as long as your loyalty is to me and not divided between me and the staff. . . .

I’m being totally honest with you, and I am telling you that it really makes me angry when you’re even civil to these assholes who deliberately screw me like that. If you think what they’re doing to me is o.k., and you treat them as great friends when they screw me, then I wish you’d move across the hall and work over there. . . .

I need your assurance that I can depend on you, because if the recommendations of the Court Administrator aren’t followed this time [referring being appointed Chief Judge], things here are going to be ten times worse than they ever were, and the whole place is going to wind up destroyed. And, if that has to happen, they’ll have gotten exactly what they deserve. And I’m going to have to have somebody I can rely on to support me.

More than anything else, I want our relationship to continue, but it has to be with loyalty and understanding there. There’s no in-between on this one. My loyalty to you is 100%, and it has to be the same in return.

I have to know where you stand so I can plan appropriately.

I told you last week I take care of those who take care of me. I treat the others accordingly. I want you to look out for me as much as I look out for you.

On February 7, 1990, Judge Seitz learned that Mrs. Cameron was going to remarry, whereupon he became visibly upset and began swearing. He left for the rest of the day leaving behind a note to Mrs. Cameron stating, among other things: "I’m sick — and if what someone downstairs [said] is true —I’m really goddamn sick and disappointed — more than you can possibly know.”

On February 9, 1990, after ignoring her for two days, Judge Seitz sent Mrs. Cameron a series of notes and a tape. One of the notes indicated that Judge Seitz wanted to talk with Mrs. Cameron, but was too upset and did not want anything "bad” to happen. The master found that this was an implied threat to hurt Mrs. Cameron. Mrs. Cameron decided to resign and was gone within a week.²¹ _

The following are excerpts from the transcript of the tape Judge Seitz made after learning that Cindy Cameron was engaged to be married:

I can’t tell you how crushed and hurt and devastated and destroyed I was when I heard what you did; and, we’ve come so far together I feel like I’ve failed — -just totally failed. Trying to build you up and get your life going again and get it going right. We’ve been through a hell of a lot together, and I tried to help you in any way I could. ... I care what happens to you more than I care what happens to any other adult person in the world. It’s unqualified caring. I’ve never asked anything in return for that. And I just want you to try to understand how I feel. Doing this destroyed really what little faith I had left in myself to judge people’s character. ... I guess, the way I feel is, the person I live with out there and Costello are right. Stupid, useless, worthless, my judgment of people and their character is no God damn good. ... I came upstairs when I found out. About two seconds after you went out that door I threw up in there. It bothered me that bad. I’ve lost what little self-confidence I have in myself of judging another person’s character because of this. . . . I’ve got you working in a position that’s the highest position in the Court, other than my position. A position where I have to have total and complete trust and faith in you, your openness and your honesty with me. And, now I find out that you hide things from me. That’s really shattered a lot of my faith and trust. ... I told you many times I care about you. . . . And it was, it was unconditional caring. . . . I’ve told you before and I’ve written in a note to you, and I’ve told you I’d do anything in the world for you. And I never expect anything back. . . . Your life has been terrible. You’ve gotten hurt more than you understand — I think — by what’s happened to you. Your life has been just a series of tragedies. It’s gonna continue. ... I feel betrayed. I feel my faith in you and in me and my judgments just shattered and destroyed. I failed again, terribly. . . . We’ve never had any romantic thing between us. . . . After all the terrible, terrible things that have happened to me here over the last two years, with Gillis and Costello and all those pricks, and getting knocked out after waiting eight or ten years to get in command and control of the God damn court, and all that being taken away and destroyed. You know how much I hate coming in here. ... I don’t learn. I’m too stupid. And they go get Costello in here. I help Costello. I take the stupid ignorant bastard out of a $16,000.00 a year job in a law firm that’s trying to get rid of his ass. Make all sorts of political enemies. Bust my ass, pull all sorts of strings, go out on a limb, stick my neck out, and I get the guy $88,000.00 a year, only to be fucked over again. And now, it’s happened again. And it’s happened by the one person in the whole world I never ever thought would do it. . . . And you promised me that you wouldn’t grab the first thing that came along that didn’t treat you like a piece of shit. And you’ve done that. . . . [Y]ou need to stand on your own two feet first. You need to do that to build up your own self-esteem. You don’t do that by grabbing the first white thing that comes along, that doesn’t knock you around and call you a psychotic cunt, and treats you like a piece of worthless shit. . . . I’ve told you before that I would do anything for you. I’ll help you out any way you need help. No strings attached. There never have been. . . . When you were a barefoot little hill ape running around out there — and got you to be a sophisticated lady. . . . But when a friend fucks up and hurts themself, it hurts worse than anything else in the world. Cindy, I just feel shattered and completely and totally disappointed, because you’re making — you’re making a terrible mistake and you’re selling yourself and your son way, way short by doing this so soon. . . . And, I’ll help you and give you whatever you have to have. No strings, no repayment, no nothing, because I care that much about you. . . . I’ve spent the last two nights — I know now what you went through with your second husband. I spent the last two nights laying on the couch crying. I just — I feel like I’ve got so much invested in you. ... I can’t take it. I’m angry at myself. I really, really am angry at myself, because I failed. I didn’t keep you from doing this. I should have known that you would do this; and, I didn’t see that. You promised me you wouldn’t. We kept going over that. . . . I’m a rotten son of a bitch; and, I know that.

The master concluded and the commission agreed that Judge Seitz’ intemperate conduct with respect to other court personnel and his insistence that Mrs. Cameron treat them in the same fashion is a violation of Canon 3B(2) of the Code of Judicial Conduct;²² is prejudicial to the public confidence in the judiciary, contrary to Canon 2B;²³ undermines the integrity of the judiciary, contrary to Canon 1;24 and is prejudicial to the administration of justice, MCR 9.205(C)(4).²⁵ See Bennett, supra at 192-193.²⁶

In this episode, the respondent, in his own words, gives more than ample testimony to the siege mentality that is at the root of many of his actions and to the harm that resulted. The commission has more than adequately satisfied its burden of establishing sanctionable conduct that cuts across a great number of judicial canons and professional standards. We agree with its conclusion.

D. WILFUL NEGLECT OF ADOPTION DOCKET AND REFUSAL TO RESPOND TO REQUESTS BY THE SCAO

The problems underlying this charge began with the departure of respondent’s secretary, Cindy Cameron, who played a large role in processing adoption cases. After Mrs. Cameron left the court, the respondent asked Mrs. Irene Leonard to act as his secretary until he obtained a new one. Mrs. Leonard was the adoption investigator for the court and was somewhat familiar with the adoption proceedings. She did not, however, have training or experience with respect to the additional duties previously performed by the respondent’s secretary. With no training provided, Mrs. Leonard was forced to teach herself by reviewing old files.

Court procedure apparently went well for a brief period. When a case was ready for hearing, Mrs. Leonard would obtain a date from Judge Seitz and the matter would proceed. His relationship with Mrs. Leonard inexplicably soured in April 1990 after he returned from a vacation and learned that Mrs. Leonard was participating in Ms. Cameron’s wedding. Mrs. Leonard testified that Judge Seitz avoided her, made himself inaccessible, literally would not talk to her, and would not respond to her requests for hearing dates. She made the situation known to the court administrator, Mr. Mario Pace.

During this period, Judge Seitz was complaining to Mr. Pace about Mrs. Leonard. He also complained that Mrs. Leonard was bothering him and not getting her paperwork right, but he never gave Mr. Pace any examples with respect to what she was doing wrong, nor did he ever tell Mrs. Leonard what she was doing wrong, if indeed she was doing anything wrong.

In place at the court was a "chain of command” administrative order, which directed that any job performance complaints a judge might have about any court employee were to be handled through the court administrator, Mr. Pace. It was Mr. Pace’s responsibility then to deal directly with the employee. Additionally, court employees were not to communicate directly with the judges. Any complaints were to be directed to their immediate supervisor, who in turn would contact Mr. Pace.²⁷ Judge Seitz argued that because of the administrative order, he could not tell Mrs. Leonard what had to be done or how to do it. He could not give her any instruction or direction. Judge Seitz claimed that the "chain of command” policy was the reason for the delays in his courtroom and for why he could not handle the problem more effectively. Because of a breakdown in communication, no one took the responsibility of ensuring that Mrs. Leonard was trained properly or performed her duties correctly.²⁸

The master found Judge Seitz’ reluctance to speak to Mrs. Leonard compelled neither by the language of the order nor by common sense. He found Judge Seitz’ attitude to be contrived, serving as a guise for his refusal to work with a court employee.

After the breakdown in communication between Judge Seitz and Mrs. Leonard, Judge Seitz began keeping files in his office to which Mrs. Leonard had no access. As a result, there were cases in which Judge Seitz set hearing dates or signed orders of which Mrs. Leonard would have had no knowledge.

Mrs. Leonard met with the Region I Court Administrator, Herb Levitt, on June 19, 1990, to voice her complaints about Judge Seitz’ refusal to communicate with her. These complaints were relayed to personnel from the State Court Administrator’s Office. At the meeting, which Assistant Region I Court Administrator, Greg Ulrich, also attended, Mrs. Leonard presented a list of adoption cases that she felt were being neglected by Judge Seitz. Mr. Levitt relayed the list to State Court Administrator, Marilyn Hall, who was also acting as special administrator of the Monroe County Probate Court.

Mr. Levitt and Mr. Ulrich met with Judge Seitz and discussed, among other things, the pending adoption cases. Judge Seitz indicated that Mrs. Leonard was not preparing the files properly.

On July 12, 1990, the State Court Administrator wrote to Judge Seitz, indicating that adoption matters were languishing and, with respect to a particular case, noting that the apparent refusal "to discuss the case or give direction to a veteran court employee who has attempted several times to discuss the case with you” was objectionable. Specific cases were listed as requiring action, and Judge Seitz was directed to hasten these cases and to apprise the State Court Administrator weekly in writing regarding the progress and dispositions made.

The State Court Administrator did not receive a single contact from Judge Seitz. She attempted calling him weekly until the end of August, but never reached him. He neither returned her calls nor reported by mail as requested.

Judge Seitz testified, however, that he never got any phone messages from the State Court Administrator. He claims that "the entire issue became one of confusion, missed cues and lack of communication between [himself], the scao and the Court Administrator Pace.” Although he did not contact the State Court Administrator, he did discuss the matters with the Region I Court Administrator. In addition, the assistant Region I Administrator kept in touch with the court director, Mr. Pace, regarding the neglected cases. After visiting the Monroe County Probate Court in August, the Region I Administrator was satisfied that the cases listed in the July 12, 1990, letter of the State Court Administrator were progressing satisfactorily, and he addressed a memorandum to the State Court Administrator on August 31 to that effect.

Mr. Pace had advised Mrs. Leonard not to disturb Judge Seitz and to • put everything to him in writing. Thus, she documented a number of cases in which she had submitted written requests to him to set hearing dates. These requests were not responded to by Judge Seitz, which led to another intervention by the State Court Administrator.

On October 31, 1990, the State Court Administrator again wrote to respondent about the growing delays in certain adoption cases. She included a list of cases about which she was concerned. Judge Seitz was asked to review the list at once and to advise her of the dates they would be scheduled for hearing or explain why they could not. The letter expressly indicated that a response was expected no later than November 9.

The scao received Judge Seitz’ unsigned response, dated November 9, on November 14, 1990. Judge Seitz testified that he had spent a significant amount of time preparing his response; however, review of that response indicates that he made no reference to the twenty-one cases to which his attention had been directed. The master found that he had not reviewed the files and had set no hearing dates. Instead of responding to the requests made by the scao, Judge Seitz responded with a seven-page complaint about the performance of Mrs. Leonard. The conclusion of the letter was that he was referring the files to court director Pace for review and that he would schedule the cases for hearings within fourteen days of a certification of readiness from the director. Judge Seitz was apparently trying to bypass Mrs. Leonard on the ground that she had done a poor job in preparing the files; however, the master found that most of the files were in proper order and ready for action. At the hearing, Judge Seitz conceded that ten of the cases were ready ánd could have been set for hearing.

After the November 14 letter, Judge Seitz made no further effort to communicate with the State Court Administrator or her staff. He testified at the hearing that any response beyond that letter would have been redundant. The scao found respondent’s letter to be an inadequate response.

On November 16, 1990, State Court Deputy Administrator Ferry directed Assistant Region I Administrator Ulrich to inspect the adoption files pending in Judge Seitz’ court and to schedule cases for him. Judge Seitz was attending a seminar in Florida and could not be reached; however, Mrs. Leonard checked his docket book and found January 8, 1991, to be an open date. All open files were reviewed by Mr. Ulrich, with the assistance of Mr. Pace and Mrs. Leonard. A list was made and faxed to Mr. Ferry, who then wrote a letter to respondent.

The November 16 letter stated that inspection of the adoption files showed no reason for postponement of scheduling the cases in question. The letter also indicated that certain cases were set for hearing on January 8, 1991, and that all parties had been notified. The letter listed other cases that did not require a hearing but only that Judge Seitz decide a motion or sign an order, and directed that Judge Seitz do so as soon as possible and no later than December 3.²⁹

Judge Seitz did not respond to the letter, nor was any action taken to comply. The master found it quite clear that Judge Seitz did not even begin work on any of the files, and, although Judge Seitz argued that he did, he could not give an example of action taken on any files. The master found that review of the files would have taken only a few hours and that, had Judge Seitz done so, he would have been able to complete the cases by December 3 as requested by Mr. Ferry. Because Mr. Ferry heard nothing from Judge Seitz by December 3, 1990, he again wrote to Judge Seitz on December 4, requesting a report. This request was also ignored.³⁰

On December 12, 1990, Judge Seitz scheduled two pretrial conferences for January 8, 1991, the same day the adoption hearings were scheduled. Apparently, these cases were going to be dismissed by the prosecutor, but they were listed for trial to further the prosecutor’s efforts to resolve them. Upon learning that Judge Seitz had scheduled two cases for trial on January 8, 1991, the court staff concluded that Judge Seitz was going to ignore the adoption cases scheduled by Deputy Ferry. The scheduling was communicated to the scao, and the master found that, given Judge Seitz’ failure to respond to Deputy Ferry’s letters of November 16 and December 4 and the fact that Judge Seitz had taken no action on the matters that were dead-lined for December 3, it was reasonable to believe that Judge Seitz intended to ignore the January 8 hearings.

On December 14, Deputy Ferry instructed Mr. Levitt and Mr. Ulrich to go to Monroe County to obtain the files for the January 8 hearings in order that an outside judge, if needed, could be apprised of the matters. When asked about the apparent conflict, Judge Seitz responded that there would be no problem in handling the adoption cases, that the juvenile matters would not take long.³¹ He also told them that the files were not available, that they were at his attorney’s office, and could be picked up on Monday, December 17. The files were actually in Judge Seitz’ office the entire time. He testified that he had become paranoid about the scao and that he kept the files to copy so that no changes could be made that would "set [him] up.”

Deputy Ferry decided to assign Judge Kirkendall, who had previously been approved by Administrator Hall as an outside judge to hear the adoption cases on a stand-by basis, in light of Judge Seitz’ statement that his attorney had the files.

On December 17, 1990, Mr. Ulrich went back to Monroe, retrieved the files, and delivered them to Judge Kirkendall.

On December 21, 1990, Judge Seitz sent letters to at least six prospective adoptive parents indicating that their adoptions had been detained since the spring because of unsatisfactory preparation by a court adoption employee. The letter went on to state that he had obtained the files from the employee, reviewed them, corrected any mistakes, and set their cases for hearing so that adoptions would be complete before Christmas, but that the State Court Administrator, apparently upon learning that he had obtained the adoption files, had assigned the cases to an outside judge. Judge Seitz stated: "This action by a deputy State Court Administrator — who is neither a lawyer or [sic] a judge — has effectively prevented your adoption from being finalized before Christmas as I had attempted to do. I’m sorry that your case was one of the few which was caught up in the bureaucratic maneuvering.” Five of the six known cases in which letters were sent were on the list of cases that Judge Seitz had been instructed to take action on by December 3. The sixth case was on the list of cases scheduled for January 8, 1991, but appeared to the master to be one that could have been concluded easily had Judge Seitz been willing to take appropriate action.³²

On January 8, 1991, Judge Kirkendall heard cases scheduled for that date. Judge Seitz was at the courthouse and could have heard the cases himself. The master found that it was not misconduct for Judge Seitz to schedule two bench trials on that day in light of his acknowledgment that he could handle the adoption hearings because the trials would not take long.³³ Relying on that finding by the master, Judge Seitz argues that the recommendation of the commission is inconsistent.

Respondent denies that he failed or refused to perform his judicial duties. He argues that he was ready to schedule the cases for hearing within fourteen days of receipt of a certification from Court Director Pace that the cases were ready. Judge Seitz further testified that most of the cases at issue had no significant problems and could have been set for hearing in any event. The master found that respondent’s failure to schedule the hearings was absolutely inexcusable.

Judge Seitz argues that findings by the master on this issue are against the great weight of the evidence and fail to consider the context in which Judge Seitz was forced to operate. Judge Seitz argues that he felt besieged, that it was more Mrs. Leonard’s fault than his, and that he was not given the chance to clear his docket.

The master found and the commission agreed that Judge Seitz’ behavior in the handling of the adoption cases constituted misconduct in office. More specifically, the commission found a persistent failure to perform judicial duties pursuant to MCR 9.205(C)(2);³⁴ a violation of the statutory directive that adoption cases are to have the highest priority in scheduling with an end to the earliest possible disposition, MCL 710.25(1); MSA 27.3178(555.25)(1);³⁵ a violation of the high standards of conduct necessary to preserve the integrity of the judiciary pursuant to Canon 1 of the Code of Judicial Conduct;³⁶ a failure to dispose of business promptly contrary to Canon 3A(5);³⁷ and a persistent failure to diligently discharge his administrative responsibilities, maintain professional competence and judicial administration, and facilitate the performance of the administrative responsibilities of court officials contrary to Canon 3B(1).³⁸

The essentially undisputed evidence of this episode clearly demonstrates yet another example of the respondent’s seemingly tireless and sometimes effective efforts to avoid being "set-up” while doing his best to isolate himself from people and procedures that offended him.

A great deal of time, personnel, and administrative effort was expended to bring about a routine disposition of a group of uneventful cases that could have been accomplished by engaging in the kind of routine communication that keeps courtrooms and court dockets functioning throughout the state.

We find, as did the master and the commission, that this episode constituted misconduct under the Code of Judicial Conduct and the Standards of Judicial Conduct as prescribed by MCR 9.205 and should subject the respondent to sanction._

E. FAILURE TO FILE REPORTS WITH THE SCAO

The formal complaint charged that Judge Seitz consistently failed, refused, or neglected to file "Undecided Matters” reports as required by MCR 8.107. The respondent failed to file such reports due on May 1, 1989, September 1, 1989, January 1, 1990, May 1, 1990, and January 1, 1991. The September 1, 1990, report was filed November 26, 1990.³⁹ These failures occurred despite the many letters and telephone reminders from the Region I Administrator’s Office.⁴⁰

The scao cannot monitor a judge’s case management if the judge neglects to file the reports required by the court rule. The master stated that refusing to adhere to the rule is a failure to discharge administrative responsibilities under the rule. The fact that the scao accepted tardy filings from the respondent does not excuse his failure to comply with the rule.

The commission found that this behavior constituted conduct clearly prejudicial to the administration of justice contrary to MCR 9.205(C)(4);⁴¹ a failure to discharge administrative responsibilities diligently and to facilitate the performance of the administrative responsibilities of court officials contrary to Canon 3B(1) of the Code of Judicial Conduct,⁴² see In re Carstensen, 316 NW2d 889 (Iowa, 1981); and a violation of MCR 8.107.⁴³

This is another factually undisputed charge of misconduct for failure to comply with an explicit routine administrative task. We agree with the commission’s finding of misconduct and accept the recommendation that it should be the subject of disciplinary action.

II. MITIGATION DEFENSE

Judge Seitz urges this Court to consider mitigating factors in determining a remedy. He does not assert that his conduct was at all exemplary or in good faith, but asks that his conduct be viewed in the context of the circumstances at the Monroe County Probate Court. The master summarized Judge Seitz’ argument as follows:

[I]t is argued that respondent suffered an adjustment disorder caused by stress primarily induced by an antagonistic fellow judge, aggravated by an inept or indifferent or biased Court Administrator’s staff. This led to alcohol abuse, dependence on Mrs. Paz as an "ally,” anxiety, and withdrawal. He felt threatened, perhaps even to the state of paranoia._

The master and the commission rejected respondent’s mitigation defense.

This Court has previously stated: "There is no doubt that 'good faith’ should be considered as a mitigating factor to the acts of misconduct but not as an affirmative defense to charges of misconduct.” In re Laster, 404 Mich 449, 461; 274 NW2d 742 (1979); In re Lawrence, 417 Mich 248, 267, n 14; 335 NW2d 456 (1983).

Judge Seitz and the examiner read this quotation as stating the principle that mitigation cannot be used in determining misconduct but can be used to determine the discipline to be applied. There is certainly authority for this view.

[T]he physical and emotional difficulties that petitioner experienced during a portion of the period in question, while they certainly merit sympathy and may serve in mitigation of the sanction, cannot be accepted as justification per se. . . . His conduct as a judge must be evaluated on the basis of objective criteria applicable to all judges similarly situated within the system. [Mardikian v Comm on Judicial Performance, 40 Cal 3d 473, 485; 709 P2d 852 (1985).]

We first note that the purpose of judicial discipline is not to punish, but to maintain the integrity of the judicial process.

The purpose of these proceedings is not to impose punishment on the respondent judge, or to exact any civil recovery, but to protect the people from corruption and abuse on the part of those who wield judicial power. [In re Leon Jenkins, 437 Mich 15, 28; 465 NW2d 317 (1991) (citing In re Mikesell, 396 Mich 517, 528-529; 243 NW2d 86 [1976]).]

In view of the fact that punishment is not a purpose of judicial discipline, this does not leave much room for mitigation.⁴⁴ Nevertheless, we would not preclude the possibility that personal mitigating circumstances could be considered in determining the discipline to be imposed when, and only when, it does not compromise the first and foremost goal of protecting the judicial process. Any conflict between exercising such a deference to a personal problem of the officeholder and the demands of the judicial office would need to be reconciled in favor of the integrity of the office. A judgeship is a privilege, not a right.

[W]hen one commits judicial misconduct he not only marks himself as a potential subject of judicial discipline, he denigrates an institution. Accordingly, a decision on judicial discipline must be responsive to a significant institutional consideration, "the preservation of the integrity of the judicial system.” Institutional integrity, after all, is the core of institutional effectiveness. [In re Probert, 411 Mich 210, 225; 308 NW2d 773 (1981).]

As will be seen, there is no opportunity under the facts and circumstances of this case to mitigate the recommended action.⁴⁵

III. CONCLUSION

The specific instances of misconduct set forth are of varying degrees of seriousness resulting in varying degrees of harm to the operations and reputation of the Monroe County Probate Court and the administration of justice generally.

However, in our considered judgment none of these instances of misconduct is an isolated event, nor to be sure the result of inattention, lack of knowledge, or incompetence, but rather part of a mosaic of wilful, contentious, destructive, and sometimes malicious behavior. We are prompted to conclude that this is an occasion when the totality of the behavior is larger than the sum of its ingredients.

Oftentimes we are required to take disciplinary action solely on the basis of the actions of a judicial officer, while only being able to speculate regarding the motivations behind the misdeeds. In this case, however, because of the respondent’s penchant for recording his thoughts and feelings, we are afforded more than just a glimpse at these innermost thoughts and feelings. It is not a pretty picture.

After nine days of hearings, including a great deal of testimony from the respondent himself, the master, Judge William R. Peterson, found the respondent to be "a calculating, manipulative, arrogant man, without feelings for others.” We cannot disagree.

While we take no pleasure in exposing the personal travails of a troubled brother in the judicial family, our responsibility for the administration of justice, including a fair and measured review of the allegations against him, requires no less.

As we examine the expressions of Judge Seitz, it conjures up specific impressions of belligerence, vindictiveness, hostility, bitterness, disrespectfulness, and considerable perversity of will and motive. These characteristics resonate discordantly when compared with the Code of Judicial Conduct, more specifically:

A judge should be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom he deals in his official capacity, and should require similar conduct of lawyers and of his staff, court officials, and others subject to his direction and control. [Canon 3A(3).]

Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. He must expect to be the subject of constant public scrutiny. He must therefore accept restrictions on his conduct that might be viewed as burdensome by the ordinary citizens and should do so freely and willingly. [Canon 2A.]

(1) A judge should diligently discharge his administrative responsibilities, maintain professional competence in judicial administration, and facilitate the performance of the administrative responsibilities of other judges and court officials.

(2) A judge should direct his staff and court officials subject to his control to observe high standards of fidelity, diligence and courtesy to litigants, jurors, witnesses, lawyers and others with whom they deal in their official capacity. [Canon 3B(1)-(2).]

We conclude, therefore, that both by his actions and his expressed declarations as he went about the exercise of his duties, he has demonstrated an attitude, a mind-set, that leaves us firmly convinced that he is woefully unfit for judicial office. He not only exhibited a lack of the qualities from which judicial temperament springs, but he has exhibited a distinct pattern of injudicious temperament and conduct.

There are precious few canons of judicial ethics and standards of judicial conduct that have escaped the behavior of the respondent. However, because we view his behavior in its totality, we prefer to isolate those canons and standards that go to the heart of his misbehavior rather than basing our findings on individual manifestations of his underlying difficulties. Accordingly, we find beyond doubt that the respondent is habitually intemperate within the meaning of Const 1963, art 6, § 30, and of the above-quoted canons of the Code of Judicial Conduct, all of which constitutes misconduct in office under MCR 9.205(C)(3) and (4).

We consider the respondent’s behavior to be sufficiently serious and pervasive that his continuation in judicial office would be "clearly prejudicial to the administration of justice,” and, therefore, adopt that part of the Judicial Tenure Commission’s recommendation that removes the respondent from judicial office.⁴⁶

Pursuant to MCR 7.317(C)(3), the Clerk is directed to issue the judgment order forthwith.

Cavanagh, C.J., and Boyle, Riley, Griffin, and Mallett, JJ., concurred with Brickley, J.

1 The Judicial Tenure Commission issued the complaint on March 20, 1991. An answer was filed on April 1, 1991. This Court had previously relieved Judge Seitz of his judicial and administrative duties on January 31, 1991, and then suspended him with pay on April 23, 1991, pursuant to a supplemental petition for interim suspension filed by the commission.

2 An amended complaint was ordered by the master at the prehearing conference. It was filed on May 8, 1991.

3 The commission has the burden of proving the allegations contained in the complaint by a preponderance of the evidence. In re Loyd, 424 Mich 514, 521-522; 384 NW2d 9 (1986). The record is reviewed de novo by this Court. In re Somers, 384 Mich 320, 323; 182 NW2d 341 (1971).

4 Our power of review de novo does not prevent us from according proper deference to the master’s ability "to observe the witnesses’ demeanor and comment on their credibility.” [Loyd, n 3 supra at 535.]

5 The two men are not related.

6 In the 1987 election for chief judge, each judge voted for himself.

7 Pursuant to MCR 8.110(C)(5).

8 Judge Seitz offered as evidence supporting his view of the events his credit card records indicating that he did not purchase on credit any equipment from Radio Shack as alleged by Mrs. Cameron. The master and the commission denied his request to admit the credit card records. Judge Seitz acknowledges that he installed a telephone listening device on his office telephone in the Monroe County Probate Courthouse. He testified that Mrs. Cameron was with him when he purchased that equipment. The receipts indicating the purchase of the telephone listening device equipment show that Cindy Cameron and Judge Seitz were both at the same Radio Shack on August 3, 1988, and they both purchased telephonic listening equipment.

9 Judge Seitz argues that it was error requiring reversal for the master to exclude the testimony of Judge Carr on this issue. The commission denied a motion to hear this evidence.

Judge Seitz also moved to admit the transcript of a tape recorded conversation he had with Cindy Cameron establishing that he did not know how to install a telephone listening device. The commission also denied this motion.

10 Judge Seitz offered, for the first time before the commission, testimony of Terrence Gallagher, whom respondent learned had spoken to Cindy Cameron about the installation of the telephone tape recording device at her home. Judge Seitz alleges that Mrs. Cameron admitted to Mr. Gallagher that respondent refused to assist her in setting up the equipment.

Judge Seitz asserts that the proposed testimony of Terrence Gallagher is highly significant because it directly related to the credibility of Cindy Cameron. Judge Seitz argues that Cindy Cameron has commenced two lawsuits against him and that the statement is the admission of a party-opponent under MRE 801(D)(2), and therefore, not objectionable hearsay.

11 In this and the succeeding four episodes of alleged misconduct, for reasons that will be set forth in our conclusion, we will refrain from specifically designating the specific provisions of the canons or MCR 9.205 that apply to each episode.

12 Judge Gillis never submitted the administrative order to the State Court Administrator for approval; therefore, the order did not comply with the provisions of MCR 8.Í12. As a result, Judge Seitz believed that the order was not legally binding.

13 The order stated in pertinent part:

The Court having received the recommendations of the predispositional assessment conducted at the Monroe County Youth Center, and those recommendations being that [the juvenile] be released to her father, now therefore:

It is ordered, that this matter be and is hereby scheduled for a dispositional hearing on: Wednesday, May 10, 1989 at 2:45 p.m. in Courtroom #305 of the Monroe County Courthouse. [Emphasis added.]

14 Mr. Gentner testified that he had never received an order that contained a contempt provision in his seven years as a supervisor.

15 It should be noted that there was no requirement by rule or statute that the juvenile actually be present at the hearing.

16 Mr. Gentner spent five hours in jail. He was not officially booked and printed.

17 Judge Seitz testified that only that afternoon did he find a memo in his office from Judge Costello, dated the day before, with directions for this case. Attached to the memo were a copy of the order and a copy of the letter from the scao approving the order. The order was approved in March and these events transpired in May.

18 Administrative Order No. 1989-2 states in pertinent part:

All hearings will be conducted in the hearing room of the Monroe County Youth Center by the judge assigned to the case by blind draw. . . . All formal hearings, including dispositional hearings, . . . will be conducted by the judge of record for the matter as assigned by blind draw. [Emphasis added.]

19 See In re Hague, 412 Mich 532, 554-555; 315 NW2d 524 (1982), where the unjustified threat of contempt was found to constitute misconduct.

20 A judge should adopt the usual and accepted methods of doing justice; avoid the imposition of humiliating acts or discipline, not authorized by law in sentencing and endeavor to conform to a reasonable standard of punishment and not seek popularity or publicity either by exceptional severity or undue leniency. [Canon 3A(9).]

21 At the hearing, Judge Seitz attempted to introduce documentary evidence of complaints by Judge Costello about himself and his secretary. The evidence was offered for the purpose of establishing his existing mental, emotional, and physical condition for purposes of mitigation. He argued that his state of mind at certain points in time was pertinent because it reflected upon his general capacity to conduct himself as a judge.

The master ruled that the evidence documenting Judge Costello’s complaints was not admissible, sustaining hearsay and relevance objections by the examiner. We are not convinced that any error in the use of the master’s discretion in excluding this evidence was, under all of the circumstances of this case, harmful. As we said in Jenkins, "The record contains more than ample evidence ... to support the findings of the master and commission.” In re Leon Jenkins, 437 Mich 15, 28-29; 465 NW2d 317 (1991) (citing MCR 9.203[D]).

22 A judge should direct his staff and court officials subject to his control to observe high standards of fidelity, diligence and courtesy to litigants, jurors, witnesses, lawyers and others with whom they deal in their official capacity. [Canon 3B(2).]

23 CANON 2 A Judge Should Avoid Impropriety and the Appearance of Impropriety in All His Activities

B. A judge should respect and observe the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

24 CANON 1 A Judge Should Uphold the Integrity and Independence of the Judiciary

An independent and honorary judiciary is indispensable to justice in our society. A judge should 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. 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.

25 A judge is guilty of misconduct in office if . . . the judge’s conduct is clearly prejudicial to the administration of justice. . . . [MCR 9.205(C)(4).]

26 Judge Seitz unsuccessfully argued before the commission that it hear the testimony of the examiner’s expert, Dr. Elliot Luby. Dr. Luby examined respondent, administered psychological tests, and wrote a report, which we have reviewed, essentially agreeing with respondent’s expert, Dr. Douglas Sargent. Although Dr. Sargent testified, Judge Seitz did not move to produce the testimony of Dr. Luby before the master. This evidence pertains to the mitigation defense, see below, and concludes that he would be able to return to his position as judge. We do not think that the testimony from an additional behavioral scientist opining on the ultimate question of respondent’s fitness to hold judicial office would be helpful to the commission or this Court, given our sole responsibility to make this judgment. We find no error in the refusal to allow such testimony before the commission.

The commission also denied Judge Seitz’ motion to hear testimony from Dr. Douglas Sargent, who testified before the master. We do not see this as an abuse of discretion.

27 Administrative Memorandum, September 2, 1987.

28 Judge Seitz argued that it was error requiring reversal for the master to exclude an exhibit which showed that Judge Costello demanded that Judge Seitz follow the "chain of command” policy. The commission denied the motion to hear additional evidence. Judge Seitz has made an offer of proof by submitting the "chain of command” memo in an appendix of exhibits.

We think the voluminous testimony on this issue rendered any possible error regarding the master’s exclusion of this exhibit harmless.

29 Ten cases were set for hearing and nine others merely required a signature or a decision on a motion.

30 The complaint alleges that Judge Seitz persistently failed, refused, or neglected to respond to inquiries of the scao. In attenipting to defend against this charge, Judge Seitz offered evidence documenting his communication with scao officials. The examiner objected to the admission of such evidence as hearsay and irrelevant. The master ruled that the evidence was admissible for the limited purpose of showing that Judge Seitz was communicating with the scao; however, the contents of the documents were ruled inadmissible.

We do not find an abuse of discretion in the ruling of the master. Most of the communications were to initiate complaints with the scao and were not in response to scao inquiries and directives. As to those relatively few communications that were directly responsive, we find their omission from evidence to be harmless in view of the large number of scao inquiries that were not responded to.

31 Even though Mr. Ulrich testified that when he scheduled the adoption cases with the respondent’s secretary he told her that other matters could be scheduled that day, he also testified that he took the scheduling of the juvenile cases by Judge Seitz as an indication that Judge Seitz did not intend to hear the adoption cases. He stated that at the time of his conversation with Judge Seitz on December 14, he understood that the decision had already been made to assign Judge Kirkendall to hear the adoption cases.

32 The complaint does not charge respondent’s December 21 letters to adoptive parents as misconduct. The master found, however, that they revealed respondent’s lack of regard for the integrity and repute of the court.

33 Judge Seitz never told anyone that the trials were dismissals. He simply said they would not take long.

34 A judge is guilty of misconduct in office if . . . the judge persistently fails to perform his or her judicial duties. . . . [MCR 9.205(C)(2).]

35 The Adoption Code provides:

All proceedings under this chapter shall be considered to have the highest priority and shall be advanced on the court docket so as to provide for their earliest practicable disposition. [MCL 710.25(1); MSA 27.3178(555.25)(1).]

36 See n 24 for text.

37 A judge should dispose promptly of the business of the court. [Canon 3A(5).]

38 A judge should diligently discharge his administrative responsibilities, maintain professional competence in judicial administration, and facilitate the performance of the administrative responsibilities of other judges and court officials. [Canon 3B(1).]

39 Although due on September 1 and filed November 26, the report was dated November 20, 1990. As of November 26, 1990, there were cases submitted for scheduling from as far back as July 20, 1990, that requested termination hearings. These cases from July were part of the group of cases scheduled to be heard by the visiting judge on January 8, 1991. Judge Seitz did not include these in his report filed November 26, 1990, although, arguably, they should have been listed. MCR 8.107. If Judge Seitz had filed the report on September 1, as the court rule requires, he would not have had to list these cases.

40 Mr. Levitt, the Region I Administrator of the scao, sent letters on June 30, 1989, November 20, 1989, March 1990, June 1990, August 9, 1990, and November 9, 1990.

41 See n 25 for text.

42 See n 38 for text.

43 MCR 8.107 states:

Every trial judge shall, on the first business day of January, May, and September of each year, file with the state court administrator a certified statement in the form prescribed by the state court administrator, containing full information on any matter submitted to the judge for decision more than 4 months earlier which remains undecided. The judge shall also set forth in the statement the reason a matter remains undecided. For the purpose of this rule the time of submission is the time the last argument or presentation in the matter was made or the expiration of the time allowed for filing the last brief, as the case may be. If the judge has no cases to report, the word “none” on a signed report is required.

44 See Kennick v Comm on Judicial Performance, 50 Cal 3d 297, 342; 787 P2d 591 (1990) ("Protection of the public and of the integrity of the judiciary precludes allowing petitioner’s reported physical or emotional difficulties to bar a determination of 'conduct prejudicial to the administration of justice’ ”).

45 See Gonzalez v Comm on Judicial Performance, 33 Cal 3d 359, 377; 657 P2d 372 (1983) ("[I]t is well established that there can be no mitigation for maliciously motivated judicial misconduct” citing Spruance v Comm of Judicial Qualifications, 13 Cal 3d 778, 800; 532 P2d 1209 [1975]).

46 For the reasons set forth in Jenkins, supra at 29-30, we decline to adopt that portion of the commission’s recommendation that would bar the respondent from ever again holding judicial office.