Order Michigan Supreme Court
Lansing, Michigan
January 12, 2006 Clifford W. Taylor,
Chief Justice
128666(4) Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
IN THE MATTER OF Robert P. Young, Jr.
Stephen J. Markman,
Justices
THE HONORABLE DANA FORTINBERRY SC: 128666
JUDGE, 52ND DISTRICT COURT JTC: Formal Complaint No. 78
BEFORE THE JUDICIAL TENURE COMMISSION
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On order of the Court, the Judicial Tenure Commission has issued a Decision and
Recommendation for Discipline, and the Honorable Dana Fortinberry has consented to
the Commission’s findings of fact, conclusions of law and recommendation of public
censure.
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):
[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;
(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.
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The JTC should consider these and other appropriate standards that it may
develop in its expertise, when it offers its recommendations.
In this case those standards are being applied to the following findings and
conclusions of the Judicial Tenure Commission, which we adopt as our own:
1. Respondent has been a judge of the 52nd District Court, 2nd Division,
since January 1, 2003.
2. Kelley Kostin (née Ott), an attorney and former magistrate in the
52nd District Court, is married to Robert Kostin, a local attorney. Mr.
Kostin was previously married to Judith Kostin.
3. Judith Kostin died on September 17, 1989, while still married to
Robert Kostin.
4. Following a postmortem examination on September 18, 1989, the
Oakland County Medical Examiner, Dr. Bill Brooks, specifically
determined the cause of death to be carbon monoxide intoxication, and the
manner of death to be suicide. Dr. Brooks wrote in his report, which was
incorporated into the White Lake Township police report:
“We believe that Judith Kostin, a 46-year-old white female,
died as the direct result of carbon monoxide intoxication and
that this event was self-inflicted. Scene circumstance
investigation was entirely consistent with such an act with a
note consisting of a series of entries implying suicidal intent.
Apparently, this individual was involved in domestic
problems. There was no evidence of trauma or of assault
upon the body inconsistent with the terminal event. The
deceased appeared to be in otherwise good health.
Toxicologic examination of body fluids reserved at the time
of the autopsy are separately appended. No additional
autopsy or postmortem investigation is anticipated by this
office at this time.”
5. Kelley Kostin was a candidate for an open seat on the 52nd District
Court in the 2004 primary election.
6. Colleen Murphy, who was at the time was a magistrate in the 52nd
District Court, was a candidate for the same seat as Kelley Kostin.
7. Respondent supported Colleen Murphy for the position of judge of
the 52-2 District Court.
8. On July 20, 2004, Respondent sent a five-page letter to Dave Curtis,
Vice President of the Oakland County Deputy Sheriff’s Association (The
“Association”).
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9. The letter concerned the Association’s endorsement of Kelley Kostin
in the judicial primary for the 52nd District Court.
10. In that letter, Respondent made the following statements:
“There is another factor that your members should know
about in evaluating the legitimacy of the endorsement
recommended by [Deputies] Hubanks and McClure. I know
they could not have informed your members of this issue,
because I am certain that the [Oakland County Deputy
Sheriff’s Association] would not have endorsed as it did if the
facts had been fully explained. These are the facts:
“In 1989, Kelley Ott was a law clerk at Oakland County
Circuit Court, and she had a sexual affair with attorney Bob
Kostin, who was at that time living in White Lake with his
third wife [Judith Kostin]. The previous Mrs. Kostin [Judith
Kostin] found out about the affair, and shortly thereafter was
found dead at their home. Due to the circumstances of the
death, a police investigation was launched, albeit quietly
because the then-and-current White Lake Township Police
Chief, Ron Stephens, was a neighbor and friend of Bob
Kostin. The investigation was inconclusive, and the case was
closed as a suicide. Chief Stephens sealed the records of the
investigation and they remain sealed to this day. According
to another neighbor, Kelley Ott moved into Bob Kostin’s
home less than a month after Mrs. Kostin’s death. Kelley Ott
and Bob Kostin married in the mid-1990’s.
“The questions raised by these facts are obvious, but the most
important question is what such facts say about the moral
fiber of Mr. and Mrs. Kostin. Is this the type of person your
members want as a judge? I chose not to publicize the above
incident during the 2002 campaign because I wanted to win
on my own merits. Colleen Murphy has chosen not to bring it
up for the same reason. As law enforcement officers,
however, you deserve to know the truth.”
11. Respondent asserted as “fact” that:
a. Kelley Ott (while a law clerk in Oakland County Circuit
Court) had a sexual affair with Robert Kostin in 1989, when he was
married to another woman (Judith Kostin):
b. Judith Kostin found out about the affair shortly before she
was found dead in her home;
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c. The circumstances of the death launched a police
investigation, which was conducted “quietly” as the White Lake
Township Police Chief, Ron Stephens, was a neighbor and friend of
Grievant;
d. The police investigation was inconclusive and the case was
closed as a suicide. Chief Stephens sealed the records regarding the
investigation and they remained sealed to the day Respondent issued
the letter; and
e. A neighbor stated that Kelley Ott had moved into Bob
Kostin’s house less than a month after his wife’s death.
12. If a hearing were held, White Lake Township Police Chief Ronald
Stephens would testify that the police investigation regarding the death of
Judith Kostin was not done “quietly,” and in fact was conducted as a
standard investigation by the White Lake Township Police Department.
13. If a hearing were held, White Lake Township Police Chief Ronald
Stephens would testify that he and Robert Kostin were not friends or
neighbors at the time of the investigation.
14. If a hearing were held, White Lake Township Police Chief Ronald
Stephens would testify that no aspect of the police investigation was
“sealed” by the White Lake Township Police Department or Chief
Stephens.
15. The police investigation into the death of Judy Kostin was not
“inconclusive,” as there was an official determination that her death
resulted from self-inflicted carbon monoxide intoxication.
16. Respondent had no first-hand knowledge of the truth or falsity of the
facts stated in paragraphs 12, 13, 14, and 15, above, or of the
representations described in subparagraphs 11.c. and 11.d., above.
17. Respondent did not undertake to independently verify the truth or
falsity of the representations made in her July 20, 2004, letter.
18. Respondent intended the representations in her July 20, 2004, letter
to raise questions regarding the moral fiber of both Robert Kostin and
Kelley Ott Kostin.
19. Respondent admits that her conduct was imprudent, and she deeply
regrets any resulting embarrassment she may have brought to the judiciary.
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These standards set forth in Brown are also being applied to the conclusion of the
Judicial Tenure Commission, which we adopt as our own:
Respondent’s conduct as admitted and described above constitutes:
(a) Failure to 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;
(b) Failure to avoid all impropriety and appearances of impropriety to
ensure that public confidence in the judiciary was not eroded, contrary to
the Code of Judicial Conduct, Canon 2A; and
(c) Failure to conduct oneself at all times in a manner which would
promote the public confidence in the integrity and impartiality of the
judiciary, contrary to the Code of Judicial Conduct, Canon 2B.
After reviewing the Recommendation of the Judicial Tenure Commission, the
respondent’s consent, the standards set forth in Brown, and the above findings and
conclusions, we order that the Honorable Dana Fortinberry be publicly censured. This
order stands as our public censure.
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.
January 12, 2006 _________________________________________
p0105 Clerk