State high court considers statute of limitations for judicial complaints

By Lee Dryden
BridgeTower Media Newswires

DETROIT-The Michigan Supreme Court is considering amendments to Judicial Tenure Commission rules that include a three-year statute of limitations for complaints against judges - with some exceptions.

The proposed MCR 9.220(C) states: "Except when the commission determines otherwise for good cause, any complaint filed more than three years after the grievant knew, or in the exercise of reasonable diligence should have known, of the existence of a violation of the Code of Judicial Conduct, shall be dismissed by the commission.

"When the last episode of an alleged pattern of recurring judicial misconduct arises within the three-year period, the commission may consider all prior acts or omissions related to such an alleged pattern of conduct."

JTC attorney Glenn J. Page told the high court during a Jan. 17 public hearing that adding the statute of limitations would create "a number of unnecessary litigation issues."

Retired attorney Bruce A. Timmons of Okemos, who also spoke at the hearing, wrote in a follow-up letter to the court that "at issue is the integrity of Michigan's judicial system."

Page was interim executive director at the time of the hearing. Lynn A. Helland assumed the executive director post on Feb. 6.

Chief Justice Stephen J. Markman suggested seeking Helland's input before making a final decision on the proposed rule changes.

A needed change?

During the public hearing, Justice Brian K. Zahra said, "Almost everything, with the exception of a few criminal acts, has a limitation period under Michigan law. It's with good purpose that we have limitation periods. To put an end to stale claims. Memories fade. People see things and then years later recount them differently.

"We have limitation periods in all of the civil arenas. Why shouldn't there be some limitation period?"

As judges have a tendency to make enemies in the political world when they run for office, old information is brought to the forefront, Zahra said, recalling when a judge had to defend against claims from when the judge was an attorney 12 years earlier.

"If it's not three years, why not four years or five years?" he said of the proposed statute of limitations. "We have limitation periods in everything. Why should judges be exempt from that?"

Page expressed concern that the good cause exception in the proposed rule is undefined.

Justice Robert P. Young Jr. pointed out that good cause is a "perfectly common" term in court rules.

Page agreed it is a common term but added it "will be litigated by every judge who is dealing with misconduct that may be older than three years."

A lawyer's viewpoint

In his Jan. 31 letter to the high court, Timmons wrote that "any analogy between discipline and either civil liability or criminal liability is misplaced."

"Discipline is its own distinct category and within that category any statute of limitations in the public sector or legal profession is unprecedented," he wrote.

"There is no statute of limitations for impeachment of civil officers (including judges and justices) under the Michigan Constitution. Only the nature of the misconduct matters.

"Nor is there a statute of limitations for Michigan's historical provision allowing the removal of judges by action of the Governor and Legislature. Again, only the nature of the misconduct matters and less than grounds for impeachment."

Timmons added that the "People of this state have a right to expect that the integrity of its Judiciary has no time limit!"

"The error in creating an unprecedented statute of limitations for judicial misconduct would only be compounded by the fact that the entity creating it was applying the new limit to itself," he wrote.

"If a 'statute of limitations' were enacted and effectively thwarted JTC involvement - as these rules are clearly envisioned to do - how would the system respond upon public revelation of judicial misconduct 'that is clearly prejudicial to the administration of justice'? The Supreme Court will have tied its own hands.

"Almost a half century ago, Michigan was in the vanguard of creating a mechanism to investigate and, where substantiated and appropriate, recommend sanctions for judicial misconduct. The proposed JTC rules will march us to the rear. Please spare us that embarrassment."

JTC comments

In its Oct. 10 comments to the high court on the proposed rule changes, the JTC stated that the phrase "after the grievant knew, or in the exercise of reasonable diligence should have known, of the existence of a violation" raises many unresolved issues, such as when the time period begins.

"It is unclear if it begins when the grievant knew of the underlying facts of the case, or when he knew he could file with the Commission. The Commission anticipates frequent evidentiary hearings to determine when the Grievant 'knew or should have known' about the underlying facts."

The commission added, "Litigants often want to wait until the case is over to file, as they do not want to complain about a judge who is presiding over their case. They should not be barred from filing for making that choice."

Also from the JTC: "Practically speaking, the Commission is not a well-known entity to the public, and attorneys frequently do not want to advise clients about the Commission as they do not want their cases being the subject of Commission proceedings (even if the attorneys do not initiate the grievance). Litigants should not be barred from filing based on actions of their counsel."

The commission also cited "unclear" language as the "proposed limitation period refers to the filing of a 'complaint' while a grievant starts the process by filing a 'Request for Investigation.'"

Published: Wed, Feb 22, 2017