Order Michigan Supreme Court
Lansing, Michigan
October 31, 2008 Clifford W. Taylor,
Chief Justice
121995 (20) Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
In re: Stephen J. Markman,
Justices
The Honorable GERARD TRUDEL, SC: 121995
Judge, 24th District Court JTC: Formal Complaint No. 68
_________________________________________/
By order of August 1, 2008, the petitioner was directed to produce evidence
supporting the allegation in its motion that the respondent had failed to appear for a
creditor’s examination pursuant to a subpoena issued by this Court. On order of the
Court, the answer having been received, the motion for appointment of receiver is again
considered, and it is DENIED, because the Court is not persuaded that it should grant the
requested relief. The petitioner seeks the appointment of a receiver in its ongoing
collection efforts against respondent former judge. Since the petitioner acknowledges
that a creditor’s examination has not been scheduled, it has not shown that all less
intrusive means were ineffective. Reed v Reed, 265 Mich App 131, 162 (2005). Our
cases note that the appointment of a receiver is a “harsh proceeding, which should only
be resorted to in extreme cases.” People v Israelite House of David, 246 Mich 606, 618
(1929); Michigan Minerals, Inc v Williams, 306 Mich 515, 525 (1943). The appointment
of a receiver at this juncture would be premature.
WEAVER, J. (concurring.)
I concur in the order denying the motion for appointment of a receiver for the
reasons stated in my concurrence to this Court’s September 22, 2006, order denying the
Judicial Tenure Commission’s first motion for appointment of a receiver:
I write separately to note that my basis for denial of petitioner’s
motion is that there is no constitutional authority to assess costs against a
judge. Subsection 2 of Const 1963, art 6, § 30 provides that “the supreme
court may censure, suspend with or without salary, retire or remove a judge
. . . .” As I stated in my concurrence in In re Noecker, 472 Mich 1, 18-19
(2005), “Nothing in this constitutional provision gives this Court any
authority to discipline the judge by assessing the judge the costs of the
2
Judicial Tenure Commission proceedings against him or her.” [In re
Trudel, 477 Mich 1202, 1203 (2006).]
And as I later stated in my dissent from a November 2, 2007, order by a majority
of the Court granting a default judgment against the garnishee defendant, California
Charley’s Corporation, the apparent sole shareholder of which being Judge Gerard
Trudel:
While under Const 1963, art 6, § 30(2) the Supreme Court also has
the authority to “make rules implementing this section [concerning the
Judicial Tenure Commission],” the Supreme Court cannot create Judicial
Tenure Commission rules that authorize the Judicial Tenure Commission to
recommend to the Supreme Court something that the Supreme Court does
not have constitutional authority to do. The rule-making authority available
to the Supreme Court is limited to making rules “implementing this
section.” And, because “this section” provides that “the supreme court may
censure, suspend with or without salary, retire or remove a judge,” this
Court only has the authority to make rules implementing the section in
connection with the censure, suspension with or without salary, or
retirement or removal of a judge. Assessment and collection of costs is not
included in this authority to discipline a judge. As the Supreme Court does
not have authority to assess and collect costs granted to it by the Michigan
Constitution, there is no corresponding rule-making authority to provide for
the Judicial Tenure Commission to recommend to the Supreme Court the
assessment and collection of costs against a respondent judge. This Court
may not delegate authority that it lacks in the first place. [In re Trudel, 480
Mich 1213, 1214 (2007) (citation omitted; emphasis in original).]
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.
October 31, 2008 _________________________________________
1028 Clerk