MSC will hear proposed judicial discipline changes

By Lee Dryden
BridgeTower Media Newswires

DETROIT, MI — A proposed rule change that some believe would diminish the authority of the Judicial Tenure Commission is among the items on the agenda for a Jan. 23 public hearing before the Michigan Supreme Court.

After hearing public comments, the high court will consider whether to adopt the proposed amendments of MCR 8.110 and 8.111 to “explicitly provide that corrective action may be taken by the State Court Administrator, under the Supreme Court’s direction, against a judge whose actions raise the question of the propriety of the judge’s continued service and explicitly allow a chief judge to order a judge to undergo an independent medical examination in limited circumstances.”

“Such corrective action may include relieving a judge of the judge’s caseload, and reassigning such cases to another judge or judges,” according to the staff comment on the proposed amendments.

A medical examination could be ordered by a chief judge, with approval from the state court administrator, “if there is a good faith doubt as to the judge’s fitness that prompted the chief judge’s report,” according to the staff comment.
The hearing will begin at 9:30 a.m. and adjourn no later than 11:30 a.m. in the Supreme Court courtroom on the sixth floor of the Michigan Hall of Justice, 925 W. Ottawa St.

Those who wish to address the high court regarding agenda matters will be allotted three minutes each, after which they may be questioned by justices.

To reserve a place on the agenda, notify the Office of Administrative Counsel at P.O. Box 30052, Lansing, MI, 48909, or by e-mail at ADMcomment@courts.mi.gov, no later than Jan. 19.

Other agenda items include:

• Whether to retain the amendments of MCR 1.109, 2.107, 2.113, 2.114, 3.206, 3.901, 3.931, 3.961, 4.302, 5.113, 5.114, 6.001, 6.101, 8.117, and 8.119 adopted on Sept. 20, 2017, to make filing requirements more uniform and consistent in anticipation of implementation of a statewide uniform e-Filing process.

• Whether to adopt either of the proposed amendments of MCR 2.602 to establish procedural rules regarding entry of consent judgments.

• Whether to adopt the proposed amendment of Canon 4E(4)(a) and (c) of the Code of Judicial Conduct to update the disclosure threshold for gifts made to a judge.
Could the JTC be ‘sidelined’?

Comments submitted to the court by the Michigan District Judges Association on proposed amendments to MCR 8.110 and 8.111 state the changes are “redundant, without constitutional authority and will create more problems than they solve.”

“Regarding jurisdiction, the proposed amendments appear to move authority over judicial misconduct from the JTC and Supreme Court to the chief judge and SCAO without the opportunity for the accused judge to present facts and be heard,” wrote Judge Thomas P. Boyd, the group’s president. “We do not believe there is legal authority to bypass the procedural protections of the JTC process.

“The electors have chosen this judge. The elected judge should not be prevented from performing the duties he or she was elected to perform without involvement from the Judicial Tenure Commission.

“As a practical matter, bypassing the JTC and Supreme Court is likely to result in due process challenges and delays due to the vagueness of the standards of ‘propriety,’ ‘good faith,’ and ‘fitness.’ MCR 8.110 already provides substantial authority over almost every administrative aspect of court functions, including the judges. Adding to that authority has no real or practical purpose and contains myriad potential pitfalls. The chief judge in every court does not always get along well with the other judges. Personality conflicts which have nothing to do with fitness to serve could become problematic for otherwise good judges.”

If changes are needed, they should be made “within the existing process which involves the JTC, the Supreme Court, and an opportunity for the accused judge to be heard,” Boyd wrote.

The State Bar of Michigan Board of Commissioners voted to oppose the proposed amendments for many of the same reasons as the judges’ association, according to written comments to the court from SBM Executive Director Janet K. Welch.

The SBM board also cited vague terms such as “propriety,” “good faith,” and “fitness.”

“For example, proposed MCR 8.110(C)(4) instructs the chief judge to report a judge to SCAO if he or she ‘acts in a way that raises questions regarding the propriety of the judge’s continued service,’” Welch wrote.

“The Board was concerned that this vagueness could potentially lead to abuse in courts where there are personality or political conflicts between judges.”

Welch also wrote that the board is “unaware of instances in which the JTC’s power to order (independent medical) examinations has proved to be insufficient.”

The Association of Black Judges of Michigan also expressed opposition via written comments, stating the proposed amendments to MCR 8.110(C)(4) would allow “chief judges and the state court administrator to usurp the powers and duties our Constitution vested in the JTC.”

“The amendments would create a ‘star chamber’ atmosphere in the hands of chief judges and the state court administrator,” wrote Judge Michael E. Wagner, the group’s president. “Significantly, the proposed amendments do not even require that the JTC be provided evidence/reports of action taken against judges. Instead, the JTC would be sidelined.”
 

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