Order Michigan Supreme Court
Lansing, Michigan
July 2, 2010 Marilyn Kelly,
Chief Justice
139546 & (8) Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
In re: Diane M. Hathaway,
Justices
HON. BENJAMIN H. LOGAN, II SC: 139546
Judge, 61st District Court. JTC: Formal Complaint No. 85
_________________________________________/
By order of March 12, 2010, we remanded this matter to the 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, to which the respondent, 61st District Court Judge Benjamin H.
Logan, II, consents. It is accompanied by a settlement agreement, in which the
respondent waived his rights, stipulated to findings of fact and conclusions of law, and
consented to a sanction that would be no greater than a public censure.
In resolving this matter, we are mindful of the standards set forth in In re Brown,
461 Mich 1291, 1292-1293 (2000):
[E]verything else being equal:
(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
propriety;
(4) misconduct that does not implicate the actual administration of justice,
or its appearance of impropriety, is less serious than misconduct that does;
2
(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.
In the present case, those standards are being applied in the context of the
following findings of fact of the Judicial Tenure Commission, which, following our de
novo review, we adopt as our own:
1. Respondent is, and was on June 17, 2008, the Chief Judge of the 61st
District Court in the City of Grand Rapids, Kent County, Michigan.
2. On June 17, 2008, an altercation took place at the Grand Rapids
home of [Kent County Commissioner] Mr. James Vaughn, which involved
Mr. Vaughn, Cassandra Mitchell and Ida Cross. As a result of the incident,
Ms. Cross required medical treatment.
3. That same day, Mr. Vaughn was arrested by officers of the Grand
Rapids Police Department (GRPD) on a probable cause charge of
aggravated domestic assault and taken to the Kent County Correctional
Facility (KCCF). He was booked at approximately 9:26 a.m.
4. A few hours later, [Kent County Commissioner] Mr. Paul Mayhue
visited Mr. Vaughn at KCCF.
5. Respondent is an elected official in the City of Grand Rapids (Kent
County), and James Vaughn is an elected member of the Kent County
Board of Commissioners. Paul Mayhue served on that Board with Mr.
Vaughn until Mr. Mayhue’s defeat in the August, 2008 primary.
6. Respondent and Mr. Mayhue engaged in a series of telephone calls
on June 17, 2008, most of which while Mr. Vaughn was incarcerated. The
identity of the callers and times are as follows:
(a) Mr. Mayhue to Respondent at approximately 12:22 p.m.;
(b) Respondent to Mr. Mayhue at approximately 1:41 p.m.;
3
(c) Respondent to Mr. Mayhue at approximately 1:48 p.m.;
(d) Respondent to Mr. Mayhue at approximately 2:03 p.m.;
(e) Mr. Mayhue to Respondent at approximately 2:08 p.m.;
(f) Respondent to Mr. Mayhue at approximately 9:15 p.m.;
(g) Mr. Mayhue to Respondent at approximately 9:40 p.m.
7. Telephone company records reflect that:
(a) Most of the calls lasted a minute or less, and resulted in voice
mail messages being left or in no contact at all; and that
(b) The phone call from Mr. Mayhue to Respondent at 2:08 p.m.
lasted approximately 15 minutes.
8. Respondent was not handling arraignments at the 61st District Court
on June 17, 2008, when a person in Mr. Vaughn’s situation could expect to
be arraigned.
9. While Mr. Vaughn was incarcerated, Respondent directed his staff to
obtain a copy of the initial police report, which was obtained by accessing
the GRPD’s computer system at the 61st District Court.
10. At approximately 2:30 p.m., Respondent directed that a fax be sent
to the KCCF reporting that he had sent a personal recognizance bond for
Mr. Vaughn in the amount of $5,000 with conditions, among others, that he
have no contact with either Cassandra Mitchell or Ida Cross. The fax was
sent as directed.
11. Respondent did not contact the GRPD for additional information,
but relied on the initial investigation report in determining to authorize the
bond.
12. At 2:50 p.m. Mr. Vaughn was released from the KCCF upon
agreeing to the terms of the bond set by Respondent.
13. Shortly after Mr. Vaughn’s release on bond, the GRPD telephoned
the KCCF to authorize his release pending further investigation. The
detective in charge of the investigation was unaware that Mr. Vaughn had
been released on bond.
14. Respondent did not direct that the GRPD be informed of the bond he
had set for Mr. Vaughn, but it is the practice of the 61st District Court to fax
4
to the Department all special bond conditions like those which were set by
Respondent for Mr. Vaughn, which was done at the same time the KCCF
was informed of the bond. The fax was sent, as is common practice, to the
GRPD Warrant Office, not the investigating detective.
15. Mr. Vaughn was subsequently charged in July, 2008, with and was
convicted in March, 2009, of aggravated assault and domestic violence by a
jury. Ms. Mitchell was convicted of assault and battery. On April 17,
2009, Mr. Vaughn was sentenced to a term of incarceration in the Kent
County Jail.
We also adopt the Commission’s conclusion that these facts demonstrate, by a
preponderance of the evidence, that respondent breached the standards of judicial conduct
as set forth in the settlement agreement:
16. The conduct described above created the appearance of impropriety,
which erodes public confidence in the judiciary, in violation of [the
Michigan Code of Judicial Conduct], Canon 2A, and, as such, constitutes:
(a) Misconduct in office as defined by the Michigan Constitution
1963, as amended, Article VI, § 30 and MCR 9.205;
(b) Conduct clearly prejudicial to the administration of justice, as
defined by the Michigan Constitution of 1963, as amended,
Article VI, § 30 and MCR 9.205;
(c) A 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 [MCJC,] Canon 1;
(d) A failure to conduct himself at all times in a manner which
would enhance the public’s confidence in the integrity and
impartiality of the judiciary, contrary to MCJC, Canon 2B;
and
(e) Conduct that exposes the court to obloquy, contempt, censure,
or reproach, contrary to MCR 9.104(A)(2).
After reviewing the recommendation of the Judicial Tenure Commission, the
settlement agreement, the standards set forth in Brown, and the above findings of fact and
conclusions of law, we accept the recommendation of the Commission and ORDER that
Honorable Benjamin H. Logan, II be publicly censured. This order stands as our public
censure.
5
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 the
JTC had not determined whether respondent testified falsely because that count was
effectively dismissed as a result of the settlement agreement, and that she could not
provide this Court with any further information because this would be outside 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 is
incomplete because it does not address whether respondent testified falsely in the course
of the JTC investigation, i.e., it does not address the apparent inconsistency between the
stipulated fact that respondent received a phone call from a particular individual that
lasted approximately 15 minutes and respondent’s multiple denials of having any such
conversations on the date in question. 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 this statement. That is, I would direct the JTC to
determine whether respondent testified falsely to the JTC in the course of its
investigation, and, if not, how respondent’s 15-minute phone call can be reconciled with
respondent’s multiple denials of having any such conversations on the date in question.
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 Judicial Tenure Commission to remove the
respondent judge from office for testifying falsely, imposed only a public censure. In that
case, there was substantial 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 Halloran, __ Mich
__ (Docket No. 139830, order entered July 2, 2010), the Court imposed only a public
censure and a 14-day suspension, despite the respondent judge’s admission that he
dismissed 30 cases in order to avoid the 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 the
respondent judge was forthright with the parties about the dismissals. As in this case, the
Court was unwilling to remand to the JTC for further investigation concerning
6
respondent’s honesty. Finally, in the instant case, the Court imposes only a public
censure, despite the fact that respondent appears to have testified falsely to the JTC.
As the leadership court within our state’s judiciary, we communicate in these
cases either that we do not take seriously false statements made in the course of a judge’s
exercise of duties, or that we believe 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 _________________________________________
p0629 Clerk