Order Michigan Supreme Court
Lansing, Michigan
July 2, 2010 Marilyn Kelly,
Chief Justice
139830 & (4) Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
In re: Stephen J. Markman
SC: 139830 Diane M. Hathaway,
Justices
HON. RICHARD B. HALLORAN, JR. RFI Nos. 2008-17594
Judge, Third Circuit Court 2008-17657
_________________________________________/
By order of March 11, 2010, we remanded this matter to the Judicial Tenure
Commission for further explication. The Commission responded by letter of May 3,
2010. This Court has reviewed the Commission’s letter.
On order of the Court, the Judicial Tenure Commission has issued a decision and
recommendation for discipline, and the Honorable Richard B. Halloran, Jr. has consented
to the Commission’s findings of fact, conclusions of law, and recommendation of a
sanction, which was to be no less than a public censure and no greater than a public
censure and a 14-day suspension without pay.
As we conduct our de novo review of this matter, we are mindful of the standards
set forth in In re Brown, 461 Mich 1291, 1292-1293 (2000). We adopt the findings and
conclusions of the Judicial Tenure Commission. Respondent was at all times a judge of
the Third Circuit Court. He has admitted violating Canon 3A(5) of the Code of Judicial
Conduct by failing to dispose promptly of the business of the court and by failing to
exercise personal responsibility for his own behavior and for the proper conduct and
administration of the court in which he presided, contrary to MCR 9.205(A). Respondent
failed to timely adjudicate at least 30 family law cases within the guidelines of Michigan
Supreme Court Administrative Order 2003-7. Those guidelines were implemented to
ensure that judges timely process cases and require that judges submit caseflow statistics
to the State Court Administrative Office. The guidelines provide that all family law cases
are to be adjudicated within 364 days of filing. Respondent dismissed 30 cases as the
guidelines threshold approached in order to avoid those cases being identified as being
out of compliance with AO 2003-7. He would continue to work on the adjudication of
those cases in a conscious design to avoid detection of those cases as being out of
compliance.
As stated by the Judicial Tenure Commission:
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The standards of judicial conduct make clear that an important
component of justice is the prompt dispatch of judicial duties. Through his
unjustified delay in resolving cases pending on his docket and his attempts
to thwart detection of cases failing to meet the guidelines established by
Administrative Order 2003-7, Respondent has failed in this responsibility.
The facts asserted in the Formal Complaint, and established by the parties’
stipulation in this matter, show by a preponderance of the evidence that
Respondent breached the standards of judicial conduct and is responsible
for (1) failing to dispose promptly of the business of the court, contrary to
MCJC, Canon 3A(5), and (2) failing to exercise personal responsibility for
his own behavior and for the proper conduct and administration of the court
in which he presided, contrary to MCR 9.205(A).
The Judicial Tenure Commission recommended Respondent be publicly censured.
Two members dissented from that portion of the recommendation, stating that a 14-day
suspension was the appropriate sanction under the circumstances:
Respondent has admitted to a deliberate pattern of misconduct on the
bench. Under these circumstances, we believe that consideration of the
Brown factors requires a sanction more substantial than a mere public
censure. . . .
Apart from the Brown factors, a matter of particular concern here is
the element of dishonesty inherent in Respondent’s actions. We agree with
the Commission’s finding that Respondent acted with a specific intent to
conceal from the State Court Administrator’s Office the fact that many of
the matters pending in his courtroom were out of compliance with
Michigan Supreme Court Administrative Order 2003-7. The dishonesty of
Respondent’s practice of entering unjustified no-progress dismissals is
revealed by the fact that, in many of the cases, the parties simply continued
to litigate as if nothing had changed. Continued litigation of dismissed
cases became part of the culture of Respondent’s courtroom. Thus, while
the litigation continued apace, both the Third Circuit Court and the State
Court Administrator’s Office necessarily labored under a misapprehension
regarding the state of Respondent’s docket. Calculated dishonesty from a
judicial officer, especially with regard to the administration of justice,
merits a sanction more than a public censure. [Concurring/Dissenting
Opin, 1-2.]
After reviewing the Recommendation of the Judicial Tenure Commission, the
Concurring and Dissenting Opinions, the Settlement Agreement, the standards set forth in
Brown, and the above findings and conclusions, we agree with the dissenting opinion and
ORDER that the Honorable Richard B. Halloran, Jr., be publicly censured and suspended
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for 14 days without pay, effective 21 days from the date of this order. This order stands
as our public censure.
MARKMAN, J. (concurring in part and dissenting in part).
I agree that, at a minimum, the discipline imposed by this Court’s order is
appropriate. But I would remand to the Judicial Tenure Commission (JTC) for further
explanation to determine if significantly greater discipline is appropriate.
By letter of May 3, 2010, the Chairperson of the JTC informed this Court that she
could not provide the information requested in this Court’s prior order because such
information was outside of the scope of the stipulated facts provided to the JTC, citing
Dana Corp v Employment Security Com’n, 371 Mich 107 (1963). Although Dana held
that stipulated facts are “sacrosanct” and cannot be “alter[ed],” it further held that a court
can, of course, “reject any offered stipulation as incomplete . . . .” Id. at 110-111. Here,
the offered stipulation, in our judgment, is incomplete because it does not address the
issues and questions raised in this statement. Therefore, I would direct the JTC to hold an
evidentiary hearing, and take any other action it deems necessary, to answer sufficiently
and completely the questions raised in such statement. That is, I would direct the JTC to
indicate: (1) the substance of the allegations contained in the request for investigation
that was dismissed as part of the settlement agreement; (2) how that matter and the cases
referred to in paragraphs 14a-14dd of the settlement agreement were brought to the
attention of the JTC; (3) with respect to each case referred to in the settlement agreement,
whether the parties or their attorneys were contemporaneously notified of the dismissal of
the case; (4) if so, whether they complained or otherwise indicated objection; and
(5) whether any dismissal or action by respondent subordinated the substantive legal
merits of any case to respondent’s determination to mislead the State Court
Administrative Office.
I am also deeply troubled by the message that is being sent by the Court in this and
in other recent cases of judicial misconduct. In particular, I believe that the wrong
message is being communicated as to this Court’s resolve in severely sanctioning false
judicial statements. In In re Servaas, 484 Mich 634 (2009), decided last year, this Court,
contrary to the recommendation of the JTC to remove the respondent judge from office
for testifying falsely, imposed only a public censure. In that case, there was
overwhelming evidence that the judge had moved outside of the district from which he
was elected in direct violation of the Michigan Constitution, and then engaged in a
pattern and practice of actions to conceal this misconduct, including providing false
testimony under oath. Moreover, in the accompanying case of In re Logan, ___ Mich
___ (Docket No. 139546, order entered July 2, 2010), the Court again imposed only a
public censure, despite the fact that the respondent judge appears to have testified falsely
to the JTC — the stipulated facts indicate that he engaged in a telephone call with an
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individual that lasted approximately 15 minutes, despite having repeatedly denied having
any telephone conversations with that same individual on the date in question. As in this
case, the Court was unwilling to remand to the JTC for further investigation concerning
whether respondent testified falsely. Finally, in the instant case, the Court again imposes
only a public censure and a 14-day suspension, despite respondent’s admission that he
dismissed 30 cases in order to avoid disclosure of the fact that he had failed to timely
adjudicate those cases. In addition, the fact that, in many of these cases, the parties
simply continued to litigate as if nothing happened, raises concerns about whether
respondent had been forthright with the parties concerning such dismissals. Moreover,
this is not the first time that respondent has been subject to discipline by the JTC. See In
re Halloran, 466 Mich 1219 (2002).
As the leadership court within our state’s judiciary, we communicate here either
that we do not take false statements made in the course of a judge’s exercise of duties
seriously, or we believe that we lack the authority to require the JTC to address such
matters. Either of these propositions is alarming, and very much inconsistent with the
leadership traditionally exercised by this Court in preserving and maintaining a judiciary
of the highest professional and ethical standards. Because I strongly disagree with each
of these propositions, and because I believe this Court must exercise a more responsible
stewardship of the judicial branch, I would direct the JTC to investigate the instant matter
further.
CORRIGAN and YOUNG, JJ., join the statement of MARKMAN, J.
WEAVER, J., not participating. I abstain from voting on any items dealing with the
Judicial Tenure Commission (JTC) and/or the Attorney Grievance Commission (AGC) to
avoid any appearance that I could be trying to affect the outcome of the referrals of me to
the JTC and AGC by Justices CORRIGAN, YOUNG and MARKMAN.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
July 2, 2010 _________________________________________
0629 Clerk