In re Haley

YOUNG, J.

The Judicial Tenure Commission (JTC) has recommended that this Court publicly censure respondent 86th District Court Judge Michael Haley for accepting in open court football tickets from an attorney appearing before him. Canon 5(C)(4) of the Michigan Code of Judicial Conduct prohibits a judge or family member residing in the judge’s household from accepting “a gift, bequest, favor, or loan from anyone ... This general prohibition is subject to three exceptions. Consistent with the JTC recommendation, we conclude that respondent violated Canon 5(C)(4), and that the gift at issue did not fit within any of the listed exceptions. In particular, respondent’s acceptance of the football tickets was not an instance of “ordinary social hospitality,” an exception found in Canon 5(C)(4)(b). Having decided that respondent was in violation of a specific, controlling judicial canon, we conclude that it is inappropriate to also consider whether respondent created a general appearance of impropriety under Canon 2, as urged by the examiner.

The JTC concluded, after applying the Brown factors,1 that respondent’s misconduct significantly harmed the public’s perception of the judiciary and that this ethical lapse warranted a public censure. We agree. Accordingly, we adopt the recommendation of the JTC that respondent be publicly censured.

I. FACTS AND PROCEDURAL HISTORY

Eespondent Judge Michael Haley is a member of the 86th District Court in Traverse City, Michigan. On October 14, 2003, he presided over a plea proceeding in a criminal case involving a defendant who allegedly lost control of her vehicle and destroyed a florist’s sign. The prosecutor reached a plea agreement with the defendant whereby she would plead guilty of using a vehicle with improper license plates and pay restitution. The defendant and the prosecutor disagreed about the appropriate amount of restitution.

Respondent accepted the guilty plea and stated that the court would sentence the defendant at a future date. The defendant’s attorney, Richard Benedict, a retired district judge who had resumed private practice, then approached the bench. Benedict placed two University of Michigan football tickets on the bench, at which time Benedict and respondent engaged in the following colloquy:

Mr Benedict: You got to promise to go.

The Court: It’s a week from Saturday?

Mr Benedict: No, Saturday.

The Court: This Saturday. Hmm, I could go.

Mr Benedict: Promise.

The Court: I promise to go? I’ve got to make a phone call. Today’s Tuesday, where are you tomorrow?

Mr Benedict: The office. No, I’m in Kalkaska. If you want it, take it.

The Court: Okay. If there’s anybody else that—

Mr Benedict: When you said you were interested, I indicated that I still have to ask another. If you can’t go, somebody’s got to go.

The Court: I’ll make sure somebody goes and that you get paid.

Mr Benedict: I don’t need to get paid.

The Court: Okay. All right.

Mr Benedict: I need to make sure there’s [sic] two people sitting in the seats.

Respondent accepted the tickets. He then reconsidered his earlier decision to postpone sentencing, and sentenced the defendant to a $100 fine, $250 in court costs, a $40 state fee, an undetermined amount of restitution, and six months of probation. He later determined restitution to be $4,116.35, which was the full amount sought by the victim and the prosecutor.

Officer Terry Skurnit was the court officer present in the courtroom at the time of the plea proceeding, and he watched respondent accept the tickets. Officer Skurnit told a supervisor about the incident, who informed the prosecutor, who in turn told respondent about Skurnit’s complaint. On October 31, 2003, respondent wrote a letter to Skurnit’s superior, Sheriff Terry Johnson, notifying Johnson that respondent had banned Skurnit from respondent’s courtroom. Skurnit then filed a request for investigation with the JTC.

After conducting a preliminary investigation, on November 18, 2004, the JTC filed a two-count complaint against respondent. Count one alleged that respondent engaged in impropriety or created an appearance of impropriety by accepting the football tickets. Count two alleged that respondent misrepresented facts to the JTC and demonstrated a lack of candor in the course of the investigation. On January 5, 2005, this Court appointed as master the Honorable Casper O. Grathwohl to preside over the hearing.

After hearing the matter, the master submitted a written report recommending no discipline on either count. The master conceded that respondent’s acceptance of the football tickets was “inappropriate” and “displayed poor judgment.” However, he concluded that the examiner had not proven by a preponderance of the evidence that respondent engaged in misconduct. The examiner filed an objection to the master’s report, challenging the master’s conclusions of law regarding count one.2 The JTC scheduled a public hearing for July 11, 2005.

Following the public hearing, the JTC issued a written opinion rejecting the master’s conclusions of law3 and recommending that this Court publicly censure respondent.4 It concluded that respondent’s acceptance of the football tickets constituted:

(1) Misconduct in office, as defined by the Michigan Constitution of 1963, as amended, Article 6, Section 30 and MCR 9.205;

(2) Conduct clearly prejudicial to the administration of justice, as defined by the Michigan Constitution of 1963, as amended, Article 6, Section 30, and MCR 9.205;

(3) Failure to establish, maintain, enforce, and personally observe high standards of conduct so that the integrity and independence of the judiciary may be preserved, contrary to the Code of Judicial Conduct, Canon 1;

(4) Irresponsible or improper conduct that erodes public confidence in the judiciary, in violation of the Code of Judicial Conduct, Canon 2A;

(5) Conduct involving impropriety and the appearance of impropriety, in violation of the Code of Judicial Conduct, 2A;

(6) Failure to conduct oneself at all times in a manner that would enhance the public’s confidence in the integrity and impartiality of the judiciary, contrary to the Code of Judicial Conduct, Canon 2B;

(7) Improper acceptance of a gift from a donor whose interests have come or are likely to come before you, contrary to Canon 5C(4)(c);

(8) Conduct that exposes the legal profession or the courts to obloquy, contempt, censure, or reproach, in violation of MCR 9.104(A)(2); and

(9) Conduct that is contrary to justice, ethics, honesty or good morals, in violation of MCR 9.104(A)(3).

The JTC rejected respondent’s contention that he had not engaged in misconduct because his actions fell within two of the three exceptions to the general prohibition of accepting gifts in Canon 5(C)(4). The JTC analyzed both exceptions and concluded that the tickets did not constitute “ordinary social hospitality” and that the gift was not offered by a disinterested party.

Having found that respondent engaged in misconduct, the JTC considered the appropriate sanction under the Brown factors.5 It considered five factors relevant to this disciplinary matter. First, the acceptance of the tickets was an isolated instance rather than part of a pattern or practice of misconduct. Second, the misconduct took place on the bench rather than off the bench. Third, the misconduct was not prejudicial to the actual administration of justice, because respondent ordered the exact amount of restitution that had been sought by the prosecutor. Thus, there was no judicial act that appeared to favor Benedict’s client. Fourth, the acceptance of the football tickets, by itself, created an appearance of impropriety. Fifth, the misconduct was not spontaneous, because respondent and Benedict had discussed the gift in the prior week. Because the misconduct took place while respondent was on the bench, it created an appearance of impropriety and was not spontaneous, the JTC believed that the conduct in question warranted some form of a sanction.

In addition to balancing the relevant Brown factors, in its effort to determine a proportionate sanction, the JTC considered similar disciplinary actions both from this state and from other jurisdictions. It found that disciplinary actions in Michigan provided “little guidance” because of their factual dissimilarity.6 Therefore, it turned to similar cases from other jurisdictions where the judge improperly accepted sports tickets and received a public reprimand.7 In light of these considerations, the JTC recommended that this Court publicly censure respondent in order to restore public confidence in the integrity of the judiciary.

H. STANDARD OF REVIEW

The Michigan Constitution authorizes this Court to discipline judges upon recommendation by the JTC.8 This Court reviews the JTC’s factual findings and disciplinary recommendations de novo.9 Findings of misconduct must be supported by a preponderance of the evidence.10 Although we review the JTC’s recommendations de novo, this Court generally will defer to the JTC’s recommendations when they are adequately supported.11

III. ANALYSIS

a. RESPONDENT’S ACTIONS VIOLATED CANON 5(C) OF THE CODE OF JUDICIAL CONDUCT

Respondent challenges the JTC’s conclusion that he engaged in misconduct and the JTC’s recommendation that he receive a public censure.12

Canon 5 of the Michigan Code of Judicial Conduct regulates a judge’s extrajudicial activities to “Minimize the Risk of Conflict With Judicial Duties.” It specifically addresses a judge’s avocational pursuits, civic and charitable involvement, financial activities, fiduciary responsibilities, arbitration, practice of law, and extrajudicial appointments. Of interest to this case is Canon 5(C), which lists financial activities from which a judge should either abstain or carefully limit his participation. For purposes of this case, we turn our attention to Canon 5(C)(4), which declares that “[n]either a judge nor a family member residing in the judge’s household should accept a gift, bequest, favor or loan from anyone . . . .”

Notwithstanding its clear prohibition against accepting gifts, Canon 5(C)(4) permits a judge to do so in carefully defined situations set forth in three provisions of the canons. A judge may accept

a gift or gifts not to exceed a total value of $100, incident to a public testimonial; books supplied by publishers on a complimentary basis for official use; or an invitation to the judge and spouse to attend a bar-related function or activity devoted to the improvement of the law, the legal system, or the administration of justice.[13]

A judge or a family member residing in the judge’s household may also accept

ordinary social hospitality, a gift, bequest, favor, or loan from a relative; a wedding or engagement gift; a loan from a lending institution in its regular course of business on the same terms generally available to persons who are not judges; or a scholarship or fellowship awarded on the same terms applied to other applicants.[14]

Finally, a judge or a member of the judge’s household may accept

any other gift, bequest, favor, or loan only if the donor is not a party or other person whose interests have come or are likely to come before the judge, and, if its value exceeds $100, the judge reports it in the same manner as compensation is reported in Canon 6C.[15]

We agree with the JTC that respondent violated Canon 5(C) by accepting football tickets from Benedict in open court. Two of the aforementioned provisions clearly do not apply in this case. The first, Canon 5(C)(4)(a), permits specific types of gifts valued under $100, such as gifts associated with public testimonials, complimentary books provided by publishers for official use, or bar-related functions and activities devoted to the improvement of the law, the legal system, or the administration of justice. The football tickets do not fit into any of these narrow categories, so this first exception is inapposite. Second, Canon 5(C)(4)(c) permits gifts from a donor that “is not a party or other person whose interests have come or are likely to come before the judge .. ..” The record established that Benedict routinely appeared before respondent representing his clients and was actually appearing before respondent when he offered the gift. Canon 5(C)(4)(c) also does not fit the present case.

The remaining provision, Canon 5(C)(4)(b), permits the judge to accept “ordinary social hospitality.” The focus of our analysis, then, is whether respondent’s acceptance of the football tickets was a permissible instance of “ordinary social hospitality.”

In deciding this issue, the JTC imported a multi-factor test from Illinois, In re Corboy, 124 Ill 2d 29, 42-43; 528 NE2d 694 (1988), to analyze whether respondent received the gift as ordinary social hospitality.16 The Corboy test is an attempt to add objectivity to an inquiry that is otherwise quite fact-intensive. It considers (1) the monetary value of the gift, (2) the relationship, if any, between the judge and the donor, (3) social practices and customs associated with gifts, and (4) the particular circumstances surrounding the gift.

The canons do not define the phrase “ordinary social hospitality.” However, one of our guiding principles in matters of judicial discipline is that we must measure respondent’s conduct objectively.17 That is, when determining whether the acceptance of a particular gift is consistent with “ordinary social hospitality” we view the conduct through an objective lens. Whether the donor or the judge intended the gift to be ordinary social hospitality is irrelevant. Rather, we must inquire how the reasonable observer would view the gift.

We note that the Corboy test straightforwardly states some commonsense principles that help to assess whether the acceptance of a gift is an instance of “ordinary social hospitably.” A reasonable observer would likely look to the value of the gift, the type of relationship between the donor and the recipient, the social practices associated with gifts of like kind, and the particular circumstances surrounding the particular gift-giving instance. To that extent, the Corboy test is not offensive to the plain meaning of the phrase “ordinary social hospitality.”

However, we need not engage in the intricate balancing of the Corboy factors to resolve this case. Given our objective focus, we can conclude, simply from the plain meaning of the phrase “ordinary social hospitality,” that social hospitality requires a social context. Here, the context of respondent’s acceptance of the football tickets was not social, but rather a judicial, context. The singularizing fact of this case is that respondent accepted a gift in open court in the course of executing his judicial duties. That the gift of tickets might well be deemed “ordinary” in other contexts does not make its acceptance in a nonsocial setting consonant with the canon. It would not have mattered, for example, that Benedict and respondent had a longstanding tradition of giving and receiving football tickets. The fact that the gift was offered in open court by a litigant in a pending case excludes the possibility that the event can objectively be characterized as “social hospitality.” We do not believe;that a reasonable observer would conclude that “ordinary social hospitality” fairly describes an exchange of gifts in open court between a litigant in an immediately pending case and a judge in that same case.18 We believe these facts are dispositive of this case and that they are not balanced or alleviated by any other factors.19

In addition to violating the explicit prohibition of Canon 5(C) against receiving gifts, the examiner also urges this Court to find that respondent created an “appearance of impropriety” in violation of Canon 2.20 We decline to create an independent “appearance of impropriety” standard to judge respondent’s behavior when there is an express, controlling judicial canon. A majority of this Court has recently agreed that

[t]he “appearance of impropriety” standard is relevant not where there are specific court rules or canons that pertain to a subject. . . but where there are no specific court rules or canons that pertain to a subject and that delineate what is permitted and prohibited judicial conduct. Otherwise, such specific rules and canons would be of little consequence if they could always be countermanded by the vagaries of an “appearance of impropriety” standard.[21]

We reaffirm and apply that reasoning in this case. The more general “appearance of impropriety” standard does not govern when the specific prohibition in Canon 5(C) controls. Otherwise, the “appearance of impropriety” standard would undermine, and potentially countermand, the remaining canons’ authority to proscribe and prescribe specific judicial conduct. We reserve application of the “appearance of impropriety” standard to conduct by a judge that is neither permitted nor forbidden by a specific canon. We decline to allow general allegations of impropriety that might overlap specifically authorized or prohibited behavior and conduct to supersede canons that specifically apply to the conduct in question. Accordingly, we find respondent engaged in misconduct by accepting a gift in contravention of Canon 5(C) and is thus subject to sanctions under the Michigan Constitution22 and our court rules that implement the Constitution.23

b. THE JTC’S RECOMMENDATION OF PUBLIC CENSURE IS PROPORTIONAL

The JTC recommended that respondent be publicly censured. Respondent contends that public censure is disproportionate because he did not engage in intentional conduct, intentional retaliation, crimes of violence, or physical misconduct. Respondent asserts that this Court has imposed public censure only in such instances. We disagree with respondent’s position.

When determining the appropriate sanction, this Court seeks not to punish the judge, but to maintain the integrity of the judicial process and protect the citizenry from corruption and abuse.24 With that goal in mind, we agree with the JTC that public censure is a proportionate measure of discipline. Our consideration of the pertinent Brown factors confirms our decision. The most applicable Brown factor cautions that misconduct on the bench is usually more serious than the same misconduct off the bench. By accepting football tickets while on the bench, respondent failed to uphold a specific canon in the Code of Judicial Conduct. He jeopardized public confidence in the integrity and impartiality of the judiciary. While respondent was clearly not accepting a bribe, his actions were an inappropriate lapse of ethical judgment, and his casual acceptance of the football tickets reflected poorly on the court — an institution that the people of this state must be able to hold in the highest regard.25 Respondent exposed the court to unfavorable public scrutiny. Indeed, this is the type of errant behavior that the drafters of Canon 5(C) specifically intended to avoid by generally prohibiting judges from accepting gifts. For the sake of protecting the public’s confidence in the impartiality of the judiciary, we believe that public censure is an appropriate sanction in this matter and reinforces a basic standard of acceptable conduct for members of the judiciary.

IV RESPONSE TO JUSTICES KELLY AND CAVANAGH

Justices KELLY and CAVANAGH conclude that respondent’s acceptance of the football tickets was, in fact, an instance of “ordinary social hospitality” within the meaning of Canon 5(C)(4)(b), but that it created an appearance of impropriety under Canon 2. In other words, although they believe that respondent’s conduct is specifically permitted under Canon 5(C)(4)(b), they conclude that respondent nevertheless should be sanctioned. However, if we agreed with Justices KELLY and CAVANAGH that respondent’s acceptance of the football tickets in open court was nothing more than an instance of “ordinary social hospitality” (which, of course, we do not) and, thus, specifically permitted under Canon 5(C)(4)(b), we would be compelled to hold that respondent should not be sanctioned. Conduct that is permitted by the canons simply cannot create an “appearance of impropriety.” As observed by Chief Justice TAYLOR and Justice Markman in Adair, it would be an ethical “snare” forjudges if they could be sanctioned for actions that are permitted under the canons. We simply cannot tell judges that they are allowed to accept “ordinary social hospitality” and then sanction them for accepting the same. As with all other citizens, judges are entitled to be governed by the rule of law rather than by standardless and amorphous decision-making, in which even compliance with written law is insufficient to ensure that a judge will not be found to be in violation of such law. If Justices KELLY and CAVANAGH believe that Canon 5 is inadequate, they are free to seek its modification; however, they are not free to invoke an “appearance of impropriety” for conduct that they believe is permitted under Canon 5, but of which they personally disapprove.

Further, our determination to rely on specific judicial canons where applicable, rather than a general and less determinate “appearance of impropriety” standard, employs a principle of construction similar to that used in Cain v Dep’t of Corrections26 and is consistent with established principles of statutory interpretation.

In Cain, this Court held that a trial judge could not be disqualified under MCR 2.003(B)(1) where there was no showing of “actual bias.” This Court looked primarily to that court rule, which specifically governs disqualification matters, and only when it found there was no violation of the disqualification rules did it then turn to the more amorphous due process disqualification test found in Crampton v Dep’t of State.27

Also, it is a settled rule of statutory construction that where a statute contains a specific statutory provision and a related, but more general, provision, the specific one controls.28 We have used principles of statutory construction to construe our court rules,29 and we see no reason not to apply principles of statutory construction to the Code of Judicial Conduct to give effect to its terms.30 Therefore, since respondent violated the specific provision in Canon 5(C), there is simply no reason to apply the more general “appearance of impropriety” standard in this case.

Although our concurring colleagues’ unfounded hand-wringing suggests otherwise, we are not diminishing, trivializing, or undermining the potency of the “appearance of impropriety” standard by assigning it its proper role within the Code of Judicial Conduct. We are not giving license to members of Michigan’s judiciary to exercise their duties unethically. Indeed, where no canon applies that specifically allows or prohibits particular judicial conduct, the “appearance of impropriety” standard is appropriate and we certainly would undertake that analysis. But as we have clearly shown, such is not the case here, where respondent failed to observe the prohibition in Canon 5(C) against accepting gifts.

Justice CAVANAGH criticizes the majority because our decision today is consistent with Adair, in which two members of the majority responded to motions for disqualification and explained their views in this regard. Had the two justices not responded to those motions, doubtless Justice CAVANAGH would have been the first to declaim their failure to do so. Now, with the two justices having explained at length their perspectives on the relationship between the “appearance of impropriety” and specific Michigan court rules, it is apparently Justice CAVANAGH’s view that the Court should not apply these same perspectives to the conduct of other judges even though a majority of justices agree with their construction.

Just as we differ with Justice CAVANAGH in our conclusion that the rule of law requires that judges, like all other citizens, should be permitted to rely on the written law in conforming their conduct without those written laws being trumped by the general and less determinate “appearance of impropriety” standard, we also differ with Justice CAVANAGH in our conclusion that the rule of law requires the consistent application of controlling legal principles. We apply the Adair standard to Judge Haley because we conclude that it is the correct standard and, as such, it must be applied consistently to similarly situated members of the judiciary.

We believe that the “public’s trust” in the judicial ethics process is far more likely to be enhanced where there is a consistent rule of law, rather than where matters are left to our concurring colleagues’ evolving sense of conscience.

V RESPONSE TO JUSTICE WEAVER

Rather than engage the members of this Court on the legal issues relevant to this case, Justice WEAVER has abandoned any pretense of persuasion or an appeal to reason and delivered herself of an unwarranted and intentionally vile personal diatribe whose sole purpose is to denounce and injure her colleagues in the majority. Her opinion here is a prologue to the more venomous allegations Justice WEAVER makes in Grievance Administrator v Fieger.31 As we have responded to such allegations in Grievance Administrator v Fieger, we decline to dignify Justice Weaver’s splenetic opinion here by responding further to it.

VI. CONCLUSION

For the reasons stated above, we adopt the JTC’s conclusion that respondent violated Canon 5(C) of the Code of Judicial Conduct and its recommendation that public censure is appropriate discipline. We consider the question whether respondent created an appearance of impropriety by his actions on the bench to be unnecessary where a specific canon addresses his conduct and such canon has been violated. We hereby order respondent to be publicly censured, with an order to that effect to be issued immediately.

Taylor, C.J., and Corrigan and Markman, JJ., concurred with Young, J.

1 In re Brown, 461 Mich 1291, 1292-1293 (2000).

2 The examiner did not challenge the master’s conclusion regarding count two, and dismissed that count. Accordingly, count two is no longer at issue in this case.

3 The JTC criticized the master’s legal conclusions for lacking any explanation or legal support.

4 Two members of the nine-member JTC panel dissented in part from the recommendation. Although they concurred with the public censure, they also urged this Court to suspend respondent without pay for 30 days.

5 In re Brown, supra at 1292-1293. In Brown this Court articulated standards for judicial discipline so that the JTC could “undertake a reasonable effort... to ensure a consistent rule of law” when dispensing discipline, thereby protecting the judge’s due process rights. Id. at 1295. Thus, the Brown decision sought to ensure that disciplinary sanctions were both proportionate to the ethical infraction and reasonably consistent with sanctions given for similar judicial misconduct.

The standards announced 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 impropriety;

(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. [Id. at 1292-1293.]

6 See, e.g., In re Lawrence, 417 Mich 248; 335 NW2d 456 (1983) (the respondent censured, suspended, and ordered to return funds for, among other things, accepting free representation from an attorney in exchange for assigning that attorney indigent criminal cases and improperly retaining campaign funds); In re Jenkins, 437 Mich 15; 465 NW2d 317 (1991) (the respondent was removed from office for accepting gifts from litigants appearing before him, soliciting and accepting bribes, communicating ex parte with litigants, soliciting perjury from an individual, and intentionally misrepresenting information on an insurance application).

7 See Office of Disciplinary Counsel v Lisotto, 94 Ohio St 3d 213; 761 NE2d 1037 (2002); Inquiry Concerning a Judge, 756 So 2d 76 (Fla, 2000); In re Daghir, 657 A2d 1032 (Pa Ct of Judicial Discipline, 1995).

8 Const 1963, art 6, § 30(2).

9 In re Noecker, 472 Mich 1, 8; 691 NW2d 440 (2005).

10 Id.

11 In re Broum, supra at 1293.

12 Respondent argues, additionally, that the JTC violates respondent’s due process rights by mixing prosecutorial and judicial functions. We have considered and rejected this argument and regard the question as settled. We decline to address this claim. See In re Chrzanowski, 465 Mich 468, 485; 636 NW2d 758 (2001).

[13] 13 Code of Judicial Conduct, Canon 5(C)(4)(a).

[14] 14 Code of Judicial Conduct, Canon 5(0(4)03) (emphasis added).

[15] 15 Code of Judicial Conduct, Canon 5(C)(4)(c) (emphasis added).

16 In addition to referencing the Illinois test, the JTC briefly mentioned California’s definition of “social hospitality” as a gift that no reasonable person would believe that (1) the donor intended to or would receive any advantage, or (2) the donee would believe that the donor intended to obtain any advantage. Adams v Comm on Judicial Performance, 10 Cal 4th 866, 880; 897 P2d 544 (1995). Because we resolve this case without relying on either Illinois or California’s respective definitions of “ordinary social hospitality,” we take no position on the propriety of these definitions to the extent they do not conflict with our reasoning in this opinion.

17 In matters of judicial discipline, we have repeatedly used an objective approach. See In re Ferrara, 458 Mich 350, 362; 582 NW2d 817 (1998).

18 We disagree with the assertion by the concurring justices that whether a gift is social hospitality does not depend on where the gift was made. Clearly, the context in which the gift is given and accepted bears significantly on whether the gift is “ordinary” and “social.” To conclude that respondent did not violate Canon 5(C), a canon that specifically addresses the prohibition against gifts, but did violate Canon 2, would put the Code of Judicial Conduct at odds with itself. As we discuss later in this opinion, this conclusion is untenable.

19 We do not mean to disapprove of all gifts given to a judge by practicing attorneys or of all gifts accepted by the judge in his or her official capacity. For example, the gift here was not merely a symbolic gift that might be provided to a judge, for example, during a ceremonial occasion such as an investiture. See Canon 5(C)(4)(a). We do not and cannot, in this decision, delineate between “ordinary social hospitality” and improper acceptance of a gift in every circumstance. However, as a basic proposition, members of the judiciary may not accept personal gifts in open court and believe that they merely are accepting “ordinary social hospitality.”

20 Code of Judicial Conduct, Canon 2(A) (“A judge must avoid all impropriety and appearance of impropriety.”).

[21] 21 Adair v Michigan, 474 Mich 1027, 1039 (statement of Taylor, C.J., and Markman, J.), 1051 (statement of Corrigan, J.), 1053 (statement of Young, J.) (2006).

22 Const 1963, art 6, § 30.

23 MCR 9.205(B)(2).

24 In re Ferrara, supra at 372.

25 We agree with Justice CAVANAGH that respondent has an “exemplary record and a long history of distinguished service.” Post at 202.

26 451 Mich 470; 548 NW2d 210 (1996).

27 395 Mich 347; 235 NW2d 352 (1975).

28 Gebhardt v O’Rourke, 444 Mich 535, 542-543; 510 NW2d 900 (1994).

29 See, e.g., In re KH, 469 Mich 621, 628; 677 NW2d 800 (2004).

30 Although Justice Kelly accuses the majority of upsetting past practice with this decision, it is Justices Kelly and Cavanagh who seek to interject a remarkable principle of textual interpretation that exposes a judge to ethical violations where the judge has complied with a specific provision in the canons. Indeed, in not one of the cases of judicial discipline cited by Justice Kelly, post at 226, did this Court find the judge in violation of Canon 2 but not in violation of a more specific court rule or canon.

We are unable to understand why Justice Kelly takes us to task for failing to "double count” for any purpose in this case a presumed violation of the “appearance of impropriety” standard in Canon 2. Justice Kelly fails to appreciate why, when there is an actual impropriety created by a violation of a specific canon, there can be no mere appearance of impropriety for the same conduct. An appearance of impropriety violation is subsumed by a frank violation of another canon. When there is a violation, there is no mere appearance of one. This is a concept that obviously eludes our colleagues.

Justice Kelly’s discussion of In re Ellender, 889 So 2d 225 (La, 2004), misapprehends today’s holding that, if a judge’s action was controlled and either permitted or proscribed by a specific judicial canon, we would not separately analyze whether that act created an appearance of impropriety. It is unclear why the Louisiana decision cited by Justice Kelly is a critique of our construction of the canons.

31 476 Mich 231; 719 NW2d 123 (2006).