In re James

MARKMAN, J.

(concurring in part and dissenting in part). I agree with the majority that Judge Sylvia James used several hundred thousand dollars of public funds as her “personal piggybank,” without regard for either the law or the victims of crime within the city of Inkster who were entitled to have received a share of those funds; violated court policy by hiring a family member; and lied under oath during the investigation and hearing conducted by the Judicial Tenure Commission (JTC) and the master appointed in this case. I also agree that this misconduct compels the removal of Judge James from office, as well as the payment of costs and restitution for the funds diverted from the victims of crime within Inkster.

I respectfully disagree, however, that the sanctions imposed on Judge James by the majority sufficiently address the continuing harm that her misconduct has inflicted on the integrity of the judiciary in our state. The Michigan Constitution confers on this Court the duty of exercising superintending control over the lower courts. In my judgment, this responsibility to protect the integrity of our justice system requires in this case that Judge James also be conditionally suspended for a period of six years, or one full term of the court on which she currently presides.

*572I. INTEGRITY OF THE JUDICIARY

As Chief Justice Marshall so famously stated in Marbury v Madison, 5 US (1 Cranch) 137, 177; 2 L Ed 60 (1803), it is, “emphatically, the province and duty of the judicial department, to say what the law is.” This, of course, leads to the question, “Who shall keep the keepers?” In re Del Rio, 400 Mich 665, 726; 256 NW2d 727 (1977) (quotation marks and citation omitted). Our state constitution “vests this solemn responsibility” in this Court. Id. at 726. Const 1963, art 6, § 4 provides:

The supreme court shall have general superintending control over all courts; power to issue, hear and determine prerogative and remedial writs; and appellate jurisdiction as provided by the rules of the supreme court.

We observed in Ransford v Graham, 374 Mich 104, 108; 131 NW2d 201 (1964), that the power of general superintending control may be exercised “for the purpose of protecting the purity of judicial processes and maintaining public confidence in the administration of justice.” As head of the state judiciary, this Court is charged with keeping the courts within bounds and ensuring “ ‘the harmonious working of our judicial system.’” In re Huff, 352 Mich 402, 418; 91 NW2d 613 (1958) (citation omitted). This duty to protect the integrity of the judiciary should not be taken lightly and must be considered in all cases involving judicial misconduct. In In re Probert, 411 Mich 210, 231; 308 NW2d 773 (1981), this Court stressed that our judicial system “is only as good as its constituent judges.” We explained:

[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 also be responsive to a significant institutional consideration, “the preservation of the integ*573rity of the judicial system.” Institutional integrity, after all, is at the core of institutional effectiveness.

Id. at 225. Indeed, proceedings such as this exist not to punish, but to maintain standards of judicial fitness. In re Mikesell, 396 Mich 517, 527; 243 NW2d 86 (1976). Accordingly, the driving force behind judicial discipline is always the preservation of the integrity of the judicial system:

The functions and decisions of a judge have an incalculable impact on the community at large. A citizen’s experience with the law is often confined to contact with the courts. Therefore, it is important not only that the integrity of the judiciary be preserved but that the appearance of that integrity be maintained.
“For generations before and since it has been taught that a judge must possess the confidence of the community; that he must not only be independent and honest, but, equally important, believed by all men to be independent and honest. A cloud of witnesses testify that ‘justice must not only be done, it must be seen to be done.’ Without the appearance as well as the fact of justice, respect for the law vanishes in a democracy.”

Del Rio, 400 Mich at 725 (citations omitted). To accomplish this end, the state and this Court can prescribe appropriate standards of conduct for those who hold state elective judicial office. Id. at 683. These standards, set forth in MCR 9.104 and MCR 9.205,1 are designed to preserve judicial integrity by guarding against harmful conduct by those holding elective judicial office.

Particularly in the circumstances of this case, it bears emphasizing that the elective nature of the judicial office does not reheve this Court of its duty to preserve the *574integrity of the judiciary, nor does the fact of popular election insulate or immunize a judge from the consequences of his or her misconduct, any more than an elected public official is insulated or immunized by election to office from being held to account for criminal law violations. To be sure, the elective power of the people does include the responsibility to ensure the qualifications of those elected, but they do not bear this responsibility alone.2 Our Constitution provides that in addition to this responsibility on the part of the electorate, this Court has a separate and distinct duty to uphold the integrity of the judiciary. The people’s discharge of their duty through election does not discharge this Court’s separate duty to preserve the integrity of the judiciary. Rather, this Court’s obligation to maintain the integrity of the judicial branch is indissoluble, and the fact of election does not dispel the harmful effects of judicial misconduct, either within or beyond the boundaries of the election district.

As noted, our Constitution vests in this Court the primary responsibility to “keep the keepers.” The people are entitled to a judiciary of the highest integrity, in both appearance and in fact, and this Court always bears the obligation under the constitution adopted by “we the people” to maintain and enforce standards of judicial fitness.

II. POWER OF THE COURT

This Court’s authority to sanction a judge can be found in Const 1963, art 6, §§ 4 and 30. While § 4 *575provides this Court’s general superintending authority over courts, § 30(2) provides, in relevant part:

On recommendation of the judicial tenure commission, the supreme court may censure, suspend with or without salary, retire or remove a judge for conviction of a felony, physical or mental disability which prevents the performance of judicial duties, misconduct in office, persistent failure to perform his duties, habitual intemperance or conduct that is clearly prejudicial to the administration of justice.

Furthermore, the JTC’s specific recommendation is not binding upon this Court. MCR 9.225 provides, in relevant part:

The Supreme Court shall review the record of the proceedings and file a written opinion and judgment, which may accept or reject the recommendations of the commission, or modify the recommendations by imposing a greater, lesser, or entirely different sanction.

In other words, the fact that the JTC did not recommend a particular sanction does not preclude this Court from imposing what it determines to be an appropriate and proportionate sanction. Thus, the only limitation on this Court’s authority to redress judicial misconduct in article 6, § 4 is that this Court may not use § 4 power to remove a judge, although we may remove a judge upon a disciplinary recommendation of the JTC under article 6, § 30. In fact, the superintending control power vested by § 4 is extremely broad:

“The power of superintending control is an extraordinary power. It is hampered by no specific rules or means for its exercise. It is so general and comprehensive that its complete and full extent and use have practically hitherto not been fully and completely known and exemplified. It is unlimited, being bounded only by the exigencies which call for its exercise. As new instances of these occur, it will be found able to cope with them. Moreover, if required, the tribunals having authority to exercise it will, by virtue of it, *576possess the power to invent, frame, and formulate new and additional means, writs, and processes whereby it may be exerted. This power is not limited by forms of procedure or by the writ used for its exercise.”

Huff, 352 Mich at 417-418 (citation omitted); see also In re Hathaway, 464 Mich 672, 684 n 8; 630 NW2d 850 (2001).

Suspension from office is one sanction expressly listed in Const 1963, art 6, § 30. This Court has clarified that “suspension,” which is an “ ‘ad interim stoppage or arrest of official power and pay,’ ” is not synonymous with “removal,” which “ ‘terminates wholly the incumbency of the office or employment.’ ” Probert, 411 Mich at 229 n 11, quoting Black’s Law Dictionary (4th rev ed), p 1616. Further, “[n]either ‘suspension’ nor ‘removal’ connotes a permanent disqualification from office.” Probert, 411 Mich at 229 n 11 (emphasis in original). The power to suspend is also not limited to cases in which the judge currently holds judicial office. As this Court noted in Probert, we possess the authority under the constitution to issue conditional suspensions that “forecloseG the exercise of the prerogatives inhering in any judicial office to which the disciplined party might have been elected or appointed in the future, the condition being, of course, re-election or appointment to judicial office.” Id. at 224, citing Mikesell, 396 Mich at 549, Del Rio, 400 Mich at 672 nn 3 and 4, and In re Bennett, 403 Mich 178, 200; 267 NW2d 914 (1978).

Such conditional suspensions “disengage the disciplined party from judicial power” only if the person occupies judicial office again during the term of the suspension and do not permanently enjoin the person from holding judicial office. Probert, 411 Mich at 224, 232-233. This Court has historically issued conditional suspensions when other sanctions could not fully and *577adequately address the effect of particular misconduct on the integrity of the judicial system. See id. at 225-228; Del Rio, 400 Mich at 725-726. Although often the greatest danger will pass once “an unfit or incompetent judge is separated from judicial power,” this Court should not refuse to consider other sanctions, such as conditional suspensions, when removal alone cannot sufficiently protect the integrity of the judiciary. Probert, 411 Mich at 227-228.

III. APPLICATION

Turning to the matter now before this Court, I believe that any sanction imposed must address not only the immediate effects of Judge James’ misconduct, but also the extent of the harm she has done to the integrity of the judicial system and the likelihood that the harm will continue. In Probert, 411 Mich at 228 n 10, we set forth a number of factors to consider in determining the appropriateness of a sanction that operates after a judge has left judicial office: (1) the likelihood of reelection to judicial office, (2) the gravity of the misconduct, and (3) the importance of official reprobation to public confidence and trust in the integrity of the judicial system. Consideration of these factors, along with the specific details of Judge James’ misconduct in the instant case, leads inescapably, in my judgment, to the conclusion that removal and restitution alone cannot fully and adequately redress the harm that she has caused to the integrity of the judiciary. Accordingly, I would impose on her a six-year conditional suspension in addition to the removal imposed by the majority and the itemization of costs it has ordered.

In In re Brown, 461 Mich 1291, 1292-1293 (2000), this Court provided seven factors to guide the formation of judicial-discipline recommendations. This case, I be*578lieve, implicates the following Brown factors, all weighing in on the “more serious” side of the scale: (1) misconduct that is part of a pattern or practice, (2) misconduct that is prejudicial to the actual administration of the justice, (3) misconduct giving the appearance of impropriety, and (4) misconduct that is premeditated or deliberated. After considering these factors, I cannot agree with the majority that removal alone constitutes an appropriate response to the seriousness of the misconduct at issue.

The evidence clearly establishes that Judge James’ misconduct was prejudicial to the actual administration of justice, as her private use of hundreds of thousands of dollars of public funds prevented those funds from being used for their proper purposes, including provisions of assistance for the victims of crime within Inkster. As the majority has detailed, Judge James treated public funds, including funds statutorily required to go to victims of crime, as her own “publicly-funded, private charitable foundation” of which she was the sole administrator. In so doing, Judge James routinely ignored or circumvented legal requirements that conflicted with her own personal desires. Although Judge James places great importance on the fact that she provided some of the misappropriated funds to worthy charitable or civic organizations, she fails to acknowledge that her “contributions” invariably served her own electoral purposes as well and were sometimes the equivalent of publicly-subsidized campaign advertisements.3 And not all the money, by any means, was given to such organizations. Instead, Judge James also *579used public funds to pay for improper travel and, among other things, provide gifts to other public officials who had undertaken actions favorable to her court.

Moreover, Judge James continues to fail to acknowledge that she possessed no authority to expend public monies in violation of the law.4 Rather, she was entrusted, both through her office and by statute, to distribute those funds according to the laws enacted by the elected representatives of the people of Inkster and those of all other residents of this state. In so doing, Judge James placed her own desires and preferences above the law, and above the rights of the victims of crimes within the city of Inkster who were entitled to these funds by the laws Judge James chose to ignore. This refusal to be bound by the law effectively resulted in these victims of crime being victimized twice — once by the criminal perpetrator and a second time by the very judicial body in which they sought justice and restitution.5

*580Her improper institution and enforcement of the business-attire policy were also prejudicial to the administration of justice, barring litigants’ access to the justice system itself. Her improper hiring of her niece, in violation of the court’s antinepotism policy, also communicated the appearance of impropriety. And virtually all of her misconduct was thoroughly deliberate and premeditated, requiring that policies be instituted, computer systems be overridden, expenditures be planned and implemented, records be distorted, long-range travel plans be undertaken, and ways be devised to ensure unchecked and improper access to public funds.

But the most disturbing factor, and the one that arguably presents the greatest danger to the integrity of the judiciary, is that Judge James’ misconduct was part of an enduring pattern or practice that she has shown no intention of changing. Her behavior and statements before, during, and after the investigation and hearing demonstrate that Judge James refuses to be bound by any law or requirement that conflicts with her own desires. This sustained pattern of misconduct and disregard for the law precludes, in my judgment, sympathetic consideration of Judge James’ behavior. “We simply cannot overlook a disclosed pattern [of misconduct]. Once such pattern is discovered, the opportunity of continuity thereof must be concluded with firmness and resolution.” In re Graham, 366 Mich 268, 276; 114 NW2d 333 (1962). In this case, removal alone, which may accomplish nothing more than removing her from the bench for a period of fewer than five months, will not divest from Judge James all opportunity to continue *581her pattern of misconduct and her cavalier approach to her responsibilities as a district judge.

The inadequacy of removal is further demonstrated by Judge James’ practice of being unrestrained by her oath to tell the truth. During the course of this investigation and hearing, Judge James lied numerous times. For example, Judge James not only falsely stated that a candidate was qualified to be magistrate, she then continued to lie when confronted about the first falsehood. Judge James further lied in stating that it was the funding authority that issued the improper checks, not her. The funding authority, however, never administered or managed the account from which the checks were drawn. In fact, Judge James opened the account when the funding authority questioned some of her check requests. Judge James also falsely submitted in her answer that the decision to close the court bank accounts was made by the bank and that the decision “forced” her court administrator to obtain a new federal tax identification number and open new accounts elsewhere. A letter from the court administrator to the bank (directed by Judge James) clearly stated that the decision was the “court’s and not the bank’s.” Further, Judge James instructed her administrator to obtain a new tax identification number before the accounts at the bank were closed.

Judge James also falsely stated that she derived no benefit from the issuance of the various checks to the civic and charitable organizations, when the advertisements prominently featured her name and photograph and had the appearance of campaign literature. Similarly, Judge James falsely submitted in her answer that she was only an honorary member of the Booker & Flora Dozier Memorial Scholarship organization (one of the organizations to which she improperly directed *582public funds), when she actually served as a committee member and voted on which applications should receive scholarships. Judge James also falsely stated that she was not an active member of the Delta Sigma Theta sorority (another organization that received public funds from Judge James), when in fact she is a lifetime member. Finally, Judge James lied about reimbursements she had received for travel expenses and pocketed public monies in excess of the actual costs. Thus, Judge James not only received an improper monetary benefit, but she lied about it when this was brought to her attention.

The provision of false testimony or evidence in a JTC proceeding has generally led to removal from office. In re Servaas, 484 Mich 634, 716 n 11; 774 NW2d 46 (2009) (YOUNG, J., dissenting). This Court also explained the importance of truthfulness in In re Ferrara, 458 Mich 350, 372; 582 NW2d 817 (1998):

Judges, occupying the watchtower of our system of justice, should preserve, if not uplift, the standard of truth, not trample it underfoot or hide in its shady recesses. This is precisely why judges should be exemplars of respectful, forthright, and appropriate conduct.

Lying under oath is the antithesis of judicial integrity. When faced with such misconduct, this Court must take pains to adequately address the harm inflicted and protected against future harm if necessary. See In re Ryman, 394 Mich 637; 232 NW2d 178 (1975); In re Loyd, 424 Mich 514; 384 NW2d 9 (1986); Ferrara, 458 Mich 350; In re Noecker, 472 Mich 1; 691 NW2d 440 (2005); In re Nettles-Nickerson, 481 Mich 321; 750 NW2d 560 (2008).

I agree with the Judicial Tenure Commission and the majority opinion that Judge James’ misconduct violated Const 1963, art 6, § 30, MCR 9.104(A)(1) (conduct *583prejudicial to the proper administration of justice); MCR 9.104(A)(2) (conduct that exposes the legal profession or the courts to obloquy, contempt, censure, or reproach); MCR 9.205(A) (a judge is personally responsible for the judge’s own behavior and for the proper conduct and administration of the court in which the judge presides); MCR 9.205(B)(1) (misconduct in office); Code of Judicial Conduct, Canons 1 (uphold the integrity and independence of the judiciary), 2(A) (avoid all impropriety and appearance of impropriety), 2(B) (respect and observe the law), 2(C) (not allow family, social, or other relationships to influence judicial conduct or judgment), 3(A)(1) (be faithful to the law and maintain professional competence in it and be unswayed by partisan interests, public clamor, or fear of criticism), 3(A)(2) (enforce reasonable rules of attire and conduct in the courtroom.), 3(B)(1) (diligently discharge administrative responsibilities, maintain professional competence in judicial administration, and facilitate the performance of the administrative responsibilities of other judges and court officials.), and 6(B) (expense reimbursement limited to the actual cost of travel, food, and lodging reasonably incurred by the judge); MCL 600.4803 (court must transmit to the treasurer or chief financial officer of the funding unit of the court late penalties received within 30 days after receipt of the penalty); MCL 600.8379 (proper allocation of fines and costs); MCL 600.8501 (appointment of magistrates); MCL 600.8507 (qualifications of magistrates); MCL 750.174 (embezzlement by fiduciary); MCL 750.175 (embezzlement by public officer); MCL 750.218 (use of false pretenses with intent to defraud); MCL 750.249 (uttering and publishing); and Administrative Order 1996-11 (antinepotism policy).

Underlying this misconduct, however, is a common theme: Judge James’ refusal to conform her actions to *584the requirements of the law, a law to which she was bound, as are all other citizens. Judge James’ actions, in short, that she believed she was above the law and not within the law. Her actions demonstrate a pattern of ignoring laws or requirements that conflicted with her personal desires and judgment. Even more troubling, her actions during the investigation and hearing below demonstrate a complete lack of remorse or acknowledgement of wrongdoing. Nowhere in the record does Judge James concede that her actions and decisions were inappropriate and unlawful; instead, she repeatedly attempted to justify her misconduct, arguing that no one had previously complained of the improprieties, that she was not aware of the legal requirements,6 that others were to blame for her actions, that she was not responsible for the actions of her court staff, and that any ancillary benefit to charitable or civic organizations justified her actions.

Taken together, these justifications reveal a refusal to conform her actions to the requirements of the law, as if statutory requirements and judicial canons are mere suggestions that may be regarded or disregarded at her will. It is this refusal to be bound by the laws of this state that, in my opinion, poses the greatest harm to the integrity of the judiciary and must therefore be effectively addressed.

Although the majority’s ordering removal from office addresses the immediate harm caused by Judge James, it is an inadequate response and fails to address the likelihood of continuing harm. As a result of the majority’s decision, Judge James will be removed from office *585from today’s date until the expiration of her present term at the end of 2012. She has her name on the August primary ballot, however. If she is successful in the primary, her name will be placed on the ballot for the general election in November. And should she prevail in those elections, she will be allowed to resume her judgeship on January 1, 2013.

In sum, following today’s decision: (1) Judge James will appear and be designated as a “judge” on the August 7 primary ballot, (2) if Judge James is among the top two finishers in that primary, she will stand for reelection on November 6, although no longer designated as the incumbent “judge,” (3) Judge James will be allowed to campaign continuously for judicial office between the time of today’s decision and the November election, referring to herself if she chooses as a “past chief judge” or as “former judge,” and (4) if Judge James is reelected in November, she will be allowed to retake office and serve the next six-year term of the court beginning on January 1 of next year. And whether by that time Judge James has or has not made full restitution to the city of Inkster or to individual victims of crime within Inkster, she may resume her “public service” after a “removal” from judicial office of less than five months. Such a sanction is inadequate, in my judgment, and does not satisfy what I view as this Court’s obligation under our superintending authority over the judiciary to preserve the integrity of Michigan’s courts.

Given Judge James’ lack of remorse and continuing refusal to acknowledge that she too is bound by the laws of this state, there is no reason to believe that Judge James will not continue to place her own will above the will of the people. Again, it is of no moment for what constitutes a proportionate sanction against Judge *586James that she may again be elected to judicial office this year. The harmful effect of her misconduct on the judiciary extends beyond the geographical limits of her judicial district, and this Court must ensure that our sanctions for judicial misconduct are viewed as adequate in Alpena and Muskegon and Battle Creek, as well as in Inkster. And a victim of crime within Inkster who was due restitution from the fund depleted by Judge James is entitled to an honest court in Inkster whether her or she has come into that community from Dearborn or Wyandotte or Trenton. Const 1963, art 6, § 1 proclaims that there is but “one court of justice” in this state, and the actions of Judge James have implications for the reputation and integrity of the judiciary throughout our state.

This Court has a duty to redress the harms done by Judge James’ harm, and that duty is not vitiated if Judge James is reelected. Nor is that duty limited to past harm; rather, it also extends to guarding against future harm. Imposing a six-year conditional suspension, which would be in effect throughout the next judicial term, is the only way this Court can adequately protect judicial integrity and redress the substantial harm caused by Judge James’s refusal to be bound by the same laws she is charged with applying.

IV CONCLUSION

Although I concur with the majority that Judge James’s misconduct warrants removal and the payment of restitution for the diversion of public funds into her “personal piggybank” and as part of her “publicly-funded private foundation,” I do not think that this sanction sufficiently addresses the harm done to the integrity of the judiciary. In light of this Court’s responsibility to ensure the integrity of our judicial system, *587both in appearance and in fact, and in light of the serious misconduct by Judge James that directly impugns the integrity of our “one court of justice” and because of her serious abuse of the public trust, financial and otherwise, I would impose a six-year conditional suspension in addition to the sanctions imposed by the majority.

YOUNG, C.J., concurred with MARKMAN, J.

MCR 9.104 sets forth general grounds for attorney discipline, while MCR 9.205 sets forth rules of judicial conduct.

The people’s right to the service of a judge whom they have elected is also not absolute, but “is subject to express and distinct limitations and qualifications provided for by the Constitution and statutes.” Del Rio, 400 Mich at 685 n 6; see also Huff, 352 Mich at 414.

Judge James improperly authorized at least 47 cheeks (totaling more than $13,000) from public funds to charitable, civic, fraternal, and religious organizations. In every instance, the contribution predominately promoted Judge James, not the public mission of the court or any particular court program.

If a bank teller, for example, accepted a check and deposited the check into her favorite charitable account instead of depositing the funds into the account specified on the check, the fact that the misdirected funds were given to a worthy charity would not justify the teller’s misconduct of using someone else’s money for her own private purposes. Judge James does not seem to clearly apprehend this and continues to justify her actions on the ground that she did not directly put the money in her pocket. This was the crux of her defense at the JTC and before this Court.

Judge James’ refusal to consider both the propriety and the effect of her actions was also evident in her employment of a family member in violation of an antinepotism policy and her institution and enforcement of a dubious business-attire policy for the public. After instituting this policy, Judge James ignored the fact that both the policy and its enforcement by court staff had the effect of denying some members of the public access to the court. Importantly, this denial of access went beyond unnecessarily inconveniencing members of the public; in at least one instance, court staff prevented a party to a case from entering the building even to reschedule his hearing, resulting in a default judgment *580being entered against him while he stood helplessly outside. It is a Kafkaesque world indeed when a citizen has a judgment entered against him for failure to appear by the very same court that prohibited his appearance in the first place.

Aside from the fact that Judge James was, in fact, informed of both the law and her noncompliance, her assertion that a judge has no duty to know the law governing the judge’s day-to-day responsibilities and actions defies logic.