In Re Noecker

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

FILED FEBRUARY 1, 2005

In re:

The Honorable JAMES P. NOECKER,
Judge 45th Circuit Court
Centreville, MI 49032,
No. 124477
_______________________________

BEFORE THE ENTIRE BENCH

KELLY, J.

This appeal is from the recommendation of the Judicial

Tenure Commission (JTC) that respondent 45th Circuit Judge

James P. Noecker be removed from office and required to pay

the costs of his prosecution. We determine that respondent

should be removed from office but that costs should not be

assessed against him.

I. Factual Background

On March 12, 2003, respondent was involved in a motor

vehicle accident in Sturgis, Michigan. The vehicle he was

driving turned from a road into the parking lot of a store,

the Klinger Lake Trading Post. According to witnesses,

respondent's vehicle neither accelerated nor decelerated.
Rather, it maintained a speed of approximately three to

five miles an hour. The vehicle hit the corner of the

store, causing significant damage to the building and to

the inventory in the store.

Respondent emerged from the vehicle, entered the

store, and asked if anyone had been injured. The store's

proprietor, Mrs. Pankey, was upset and repeatedly stated

that she wanted someone to find her husband, who was ice

fishing on a local lake. Although respondent lacked any

information to assist him in the search for Mr. Pankey

beyond the name of the lake, respondent left the scene of

the accident. He claimed that he did so to help Mrs.

Pankey.

No one indicated where on the lake Mr. Pankey was

fishing. Respondent believed that he was near a fishing

access, but was unsure where the access was located. Mrs.

Pankey testified that respondent did not know what her

husband looked like. He did not know what vehicle Mr.

Pankey was driving. He did not even know the color of the

coat Mr. Pankey was wearing.

Respondent testified that, in the course of his

search, he first drove to the lake. He got out of the car

to look around and saw two objects he presumed were people

on the far side of the lake. He then spent several minutes

2

considering whether he could walk across the ice. Deciding

that it was unsafe, he returned to his vehicle.

Respondent said that he then stopped at another point

along the lake, walked down to the water’s edge, and tried

unsuccessfully to find an access point. He saw five or six

people in a cove and again considered whether it was safe

to walk out on the ice. Deciding that it was unsafe, he

drove farther around the lake to a gated area known as Camp

Fort Hill. Unable to enter, he started back to the store,

but decided instead to drive to his residence.

On arriving home, respondent told his wife about the

accident, then called Mrs. Pankey. He testified that he

wanted to ask Mrs. Pankey if she had heard from her

husband, and, if not, he wanted to know the location of the

lake’s access point. He testified that he never got a

chance to ask those questions, because as soon as he

identified himself, Mrs. Pankey began screaming

hysterically. She kept repeating, "You get back here." He

told her he would return.

Respondent then learned that the state police were en

route to his house to speak with him. He decided not to

return to the store. He testified that his wife took his

blood pressure. The systolic reading was 220. Respondent

did not call his doctor or the emergency room. Rather, he

testified, he poured and drank three to five ounces of
3
vodka. He testified that he knew that the police were

coming to speak with him about the accident. But he stated

that the effect that his consumption of alcohol would have

on the officers’ investigation of his car accident did not

trouble him at the time.

When the police arrived at his home, respondent told

them that he had consumed three to five ounces of vodka

after returning from the search for Mr. Pankey. Respondent

agreed to take a preliminary breath test. The breath test

was administered approximately two hours after the

accident. The reading was 0.10.1

A state trooper who investigated the accident at the

scene, Craig Wheeler, testified that he was concerned that

alcohol may have been a factor. Sergeant Steven Barker

testified that there are generally three reasons people

leave the scene of an accident: their license has been

suspended, there is an outstanding arrest warrant for them,

or they drank alcohol before the accident.

Sergeant Barker accompanied Trooper Wheeler to

respondent's home on the night of the accident. He

testified that respondent appeared to move away from him

1
This value refers to the amount of alcohol in an
individual's system. At the time of the accident, Michigan
law made it unlawful for someone to operate a vehicle where
"[t]he person has an alcohol content of 0.10 grams or more
per 100 milliliters of blood, per 210 liters of breath, or
per 67 milliliters of urine." MCL 257.625(1)(b).
4
whenever he got close. One of the officers testified that,

when he confronted respondent about an apparent

inconsistency in his statement, respondent commented, "I

know you are in a position to fry me." In addition to the

testimony of Trooper Wheeler and Sergeant Barker, several

witnesses to the accident testified that it appeared that

respondent had been drinking at the time of the accident.

Respondent gave conflicting stories about how the

accident had occurred. One explanation was that he

intended to depress the brake pedal, but accidentally

pushed the accelerator when his shoe slipped. Another

explanation was that, as he approached the building, he

intended to brake, but he forgot that his foot was not on

the brake pedal. Instead, he depressed the accelerator,

which caused the vehicle to shoot forward and strike the

building.

II. Proceedings Below

The events occurring after the March 12 accident,

including respondent's conflicting explanations to the

media, caused the JTC to issue a formal complaint against

respondent.

The complaint may be summarized as alleging the

following misconduct:

1. Persistent use of alcohol leading to a
variety of violations of the Michigan

5
 Constitution, the Michigan Court Rules, and the
Canons of Judicial Conduct.

2. Violations of the law and making false
statements to the police regarding the events
surrounding a motor vehicle accident on March 12,
2003.

3. Making false statements to the JTC.

The complaint may be summarized as alleging that

respondent's conduct constituted:

1. Misconduct in office, as defined by Const
1963, art 6, § 30, as amended, and MCR 9.205;

2. Conduct clearly prejudicial to the
administration of justice, as defined by Const
1963, art 6, § 30, as amended, and MCR 9.205;

3. Habitual intemperance, as defined by Const
1963, art 6, § 30, as amended, and MCR 9.205;

4. Persistent failure to perform judicial
duties, as defined by Const 1963, art 6, § 30, as
amended, and MCR 9.205;

5. Persistent neglect in the timely
performance of judicial duties, contrary to MCR
9.205(B)(1)(b);

6. Irresponsible or improper conduct that
erodes public confidence in the judiciary,
contrary to the Code of Judicial Conduct, Canon
2(A);

7. Conduct involving impropriety and the
appearance of impropriety, contrary to the Code
of Judicial Conduct, Canon 2(A);

8. Failure to respect and observe the law,
contrary to the Code of Judicial Conduct, Canon
2(B);

9. Conduct violative of MCR 9.104(A)(1),
(2), and (3) in that such conduct,

(i) is prejudicial to the proper
administration of justice,
6
 (ii) exposes the legal profession or the
court to obloquy, contempt, censure, or reproach;
and

(iii) is contrary to justice, ethics,
honesty, or good morals.

Retired Circuit Judge John N. Fields was appointed

master in the case, heard evidence, and made forty specific

findings of fact. On reviewing all the evidence, he

concluded that respondent violated the court rules and

canons listed above.

The JTC adopted the master’s report and unanimously

recommended that this Court remove respondent from the

bench. In addition, in a split decision, it recommended

that respondent be required to pay the costs that the JTC

incurred in prosecuting the matter.

Three JTC members concurred. They thought that

respondent should also be required to pay the costs

incurred for visiting judges to hear respondent's docket

during his interim suspension. A separate JTC

concurrence/dissent agreed with the recommendation for

removal, but argued that costs should not be assessed

against respondent.2

2
We shall refer to these opinions as they are titled.
The concurring opinion will be referred to as the "JTC
concurrence." The opinion objecting to requiring
respondent to pay the costs of his prosecution will be
referred to as the "JTC concurrence/dissent."
7
 III. Issues on Appeal

Respondent asks this Court to reject the JTC’s

recommendation. He asserts that there is insufficient

evidence to find him guilty of judicial misconduct. He

also argues that the master erred in allowing the

introduction of improper expert evidence. Finally,

respondent contests the recommendation that he be required

to pay the costs of his prosecution.

IV. Relevant Standards

We review the JTC's factual findings and its

disciplinary recommendations de novo. In re Chrzanowski,

465 Mich 468, 478-479; 636 NW2d 758 (2001). The standard

of proof in a judicial discipline proceeding is a

preponderance of the evidence. In re Loyd, 424 Mich 514,

521-522; 384 NW2d 9 (1986).

V. The Commission's Recommendation

In making its recommendation, the JTC applied the

factors enunciated in In re Brown, 461 Mich 1291, 1292-1293

(2000). It listed each factor, relating it to the

circumstances of the case. It explained how it weighed

each factor for or against respondent. Furthermore, the

JTC considered the fact that respondent has extensive prior

involvement with the judicial disciplinary system, having

been admonished on various occasions for failing to timely

complete court work.
8
 The JTC concluded that respondent's failure to be

truthful regarding the automobile accident and its

aftermath justifies his removal from office. It found that

respondent misled the police and later provided

inconsistent accounts of the events. Also, it found that

he failed to offer credible testimony when under oath in

the public hearing.

Furthermore, the JTC indicated that docket delays

caused by respondent had a deleterious effect on the

administration of justice in St. Joseph County. The JTC

acknowledged that a number of attorneys testified in

respondent's favor. But it noted that their testimony did

not alter the fact that the court docket and the public

suffered because of respondent’s conduct. The JTC

concluded that respondent is guilty of repeated serious

misconduct that requires his removal from office.3

A. The Sufficiency of the Evidence

The power to discipline a judge resides exclusively in

this Court, but it is exercised on recommendation of the

JTC. Const 1963, art 6, § 30. Respondent’s complaints with

regard to the master’s factual findings amount to a

3
The examiner indicated at oral argument that "[I]t's
fair to say that if the crash had never taken place we
would not necessarily be making a recommendation for
removal . . . . I think the gravamen of this is the lying,
and that truly should be the focus . . . ." We agree.
9
disagreement about the weight and credibility that should

be afforded to the various witnesses. The master, as trier

of fact, was in the best position to assess the credibility

of the witnesses. "Our power of review de novo does not

prevent us from according proper deference to the master's

ability to observe the witnesses' demeanor and comment on

their credibility." In re Loyd, supra at 535.

On review of the entire record, we agree with the

master's findings of fact and conclusions of law.

Respondent left the scene of an automobile accident.

Eyewitnesses testified that respondent appeared intoxicated

at the time of the accident. As a former prosecutor and a

judge, respondent knew that he should have stayed at the

scene of the accident. It is not credible that, after

being made aware that the police were on their way to

question him about his accident, he consumed alcohol.

We conclude that respondent was under the influence of

alcohol when he ran his car into the store. We conclude

that he attempted to deceive the police about this fact

because he was motivated by a desire to avoid criminal

prosecution. We conclude that he continued to misrepresent

the cause of the accident to the JTC and the master,

10

motivated in addition by a desire to avoid professional

discipline.4

The preponderance of the evidence justifies a finding

that respondent was guilty of judicial misconduct,

notwithstanding the exculpatory evidence on which he

relies. Nothing in the record suggests that Judge Fields

erred in his findings and conclusions in any manner that

would change the outcome of the proceedings. To the

contrary, we believe that Judge Fields fairly and

objectively presided over this case. Therefore, we agree

with the JTC that respondent's significant

misrepresentations of the truth made in testimony and to

the public warrant disciplinary action.

B. The Qualifications of the Expert Witness

Respondent argues that the examiner’s expert, Harvey

Ager, M.D., was not qualified to testify. Dr. Ager is a

psychiatrist who testified about the conduct typical of an

alcoholic.

MRE 702 provides the rule for expert testimony:

4
One of respondent’s more peculiar explanations for
the cause of the accident occurred during his testimony
before the master. There, respondent testified that he
entered his vehicle through the passenger door and operated
the vehicle while straddling the console because he had
“mud on his shoes.” Respondent indicated to the master
that he “used his left foot to accelerate and brake because
his right foot remained straddled over the center console.”
11
 If the court determines that scientific,
technical, or other specialized knowledge will
assist the trier of fact to understand the
evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge,
skill, experience, training, or education, may
testify thereto in the form of an opinion or
otherwise if (1) the testimony is based on
sufficient facts or data, (2) the testimony is
the product of reliable principles and methods,
and (3) the witness has applied the principles
and methods reliably to the facts of the case.

Respondent argues that Dr. Ager's failure to publish,

present, or conduct peer review on the topic of alcoholism

in the recent past disqualifies him from testifying as an

expert. He is mistaken.

The master noted that, although Dr. Ager had not

recently published or made presentations on the topic,

there was evidence that he

is a graduate of Wayne State University. That he
is a board certified psychiatrist. That he is a
former codirector of the alcoholism unit at
Detroit Memorial Hospital. . . . [T]hat he has
treated hundreds of individuals with respect to
alcoholism. . . . I do find that his experience
in this area in addition to his general medical
training is such that he is qualified as an
expert to testify and render an opinion regarding
conduct consistent with alcoholism.

The master ruled that Dr. Ager could testify as long as his

testimony conformed with the requirements of MRE 702. He

noted that "there has been nothing here to suggest that

this sort of testimony would not be based upon reliable

principals [sic] and methods."

12

 Dr. Ager's testimony conformed with the requirements

of MRE 702. On the basis of his experience, he testified

about what conduct is consistent with that of an alcoholic.

He also testified about his personal interaction with

respondent in a ninety-minute interview.

Contrary to respondent's assertions, Dr. Ager did not

testify outside the bounds of his knowledge. He did not

state that respondent's alcoholism caused his docket

delays. He testified simply about the behavior one could

expect from an alcoholic.

Dr. Ager did not view respondent's work product and

did not comment on the quality of respondent's work. Nor

was Dr. Ager introduced to testify regarding respondent's

work product. The fact that Dr. Ager was unfamiliar with

the work of respondent and the extent of Dr. Ager's

experience with alcoholics go to the weight to be given his

testimony. They are not determinative of whether his

testimony conformed with the requirements of MRE 702.

We find that Dr. Ager qualified as an expert witness.

His testimony complied with MRE 702 and, therefore, was

admissible.

VI. Appropriate Discipline

Having determined that the JTC proved the charges by a

preponderance of the evidence, we must assess whether the

recommended discipline is appropriate to the offense. "Our
13
primary concern in determining the appropriate sanction is

to restore and maintain the dignity and impartiality of the

judiciary and to protect the public." In re Ferrara, 458

Mich 350, 372; 582 NW2d 817 (1998).

Central to our decision to remove respondent is our

conclusion that respondent misled the police, the public,

and the JTC about his drinking on March 12, 2003.

Respondent’s insistence that he was sober at the time of

the accident is not credible. His misrepresentations about

being sober when he caused an automobile accident that

carried civil and criminal consequences are antithetical to

his judicial obligation to uphold the integrity of the

judiciary. Respondent's repeated deception and the

publicity surrounding the incident have seriously eroded

the public's confidence in him and in the judiciary.

Unfortunately, we have on other occasions dealt with a

judge's dishonesty. In In re Ferrara, supra, this Court

determined that Judge Andrea J. Ferrara's conduct in

misleading the master after her original alleged misconduct

surfaced justified her removal from office. During the

hearing on the complaint, Judge Ferrara twice attempted to

introduce a fraudulent letter into evidence. We determined

that her misrepresentations and deception eroded the

public's trust and confidence in the judiciary. We found

14

it necessary to remove Judge Ferrara from the bench in

order to restore public trust and confidence. Id. at 373.

Likewise, the nature of respondent's lies, and the

apparent motives behind them, have seriously harmed the

integrity of the judiciary. Respondent’s continued

deception before the JTC has seriously undermined the

public's faith that judges are as subject to the law as

those who appear before them. His continued dishonesty

with regard to the events of March 12, 2003, justifies his

removal from office.

Furthermore, respondent's persistent docket problems,

for which he was admonished on several occasions, violate

the standards of judicial conduct. Were this proceeding

solely about his docket problems, we would not find removal

an appropriate form of discipline. However, respondent's

deception surrounding the March 12 accident described

herein warrants the harsh sanction of removal from office.

VII. The Assessment of Costs

The Michigan Constitution created the Judicial Tenure

Commission and outlines the power of the Michigan Supreme

Court to discipline judges:

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,
15
 habitual intemperance or conduct that is clearly
prejudicial to the administration of justice. The
supreme court shall make rules implementing this
section and providing for confidentiality and
privilege of proceedings. [Const 1963, art 6, §
30(2).]

Pursuant to this constitutional provision, the Court

has promulgated court rules governing judicial discipline

proceedings. As the JTC noted, no specific court rule or

statute provides for imposing costs in judicial

disciplinary matters.

We have imposed costs in several cases in the past.

The JTC majority relies on those cases in support of its

assessment of costs here. But those cases are not on

point. In In re Thompson,5 costs were recommended and

ordered, but the judge did not contest them. Likewise, in

In re Trudel,6 costs were ordered. By then, however, Judge

Trudel had resigned from the bench. In In re Cooley,7 Judge

Cooley consented to the commission's decision and

recommendation, including the assessment of costs. In the

present action, respondent did not consent to the JTC's

recommendation, nor has he resigned. Rather, he has

challenged the JTC's findings and its recommendation that

costs be assessed.

5
470 Mich 1347 (2004).

6
468 Mich 1243 (2003).

7
454 Mich 1215 (1997).

16
 We agree with the JTC concurrence/dissent that a

respondent is entitled to notice of what conduct will

subject the respondent to the assessment of costs. Past

decisions of this Court have not provided notice because

they were issued without explanation of the standards used

in assessing costs.

We agree with the JTC concurrence/dissent’s

observation:

Respondent Noecker cannot be said to have
been given notice of the standards to be applied
and the type of expenses that could be assessed
in this case. . . . The imposition of actual
costs has been extremely rare in the history of
reported cases. The commission has not set
standards for the imposition of costs until
today. Therefore, imposition of costs in this
case, if the Supreme Court believes they are
authorized by law, would violate the spirit of In
re Brown.

Where a judge has been given no notice of the

standards for imposing costs, the judge should not be made

to pay them. We leave for another time the determination

whether the assessment of costs is consistent with the

Michigan Constitution. In this case, respondent should not

be required to pay the costs of his prosecution because he

had no notice of the standards for imposing them.

We have opened an administrative file to consider the

constitutional issue and the standards to be applied in the

event costs can be assessed in these matters. ADM 2004-60.

17

 VIII. Conclusion

After a careful examination of the evidence and an

evaluation of the findings of fact, we conclude that

removal of respondent from the bench is warranted.

We hereby order respondent removed from office.

Pursuant to MCR 7.317(C)(3), the clerk is directed

immediately to issue an order to that effect. No costs

will be assessed.

Marilyn Kelly
Clifford W. Taylor
Maura D. Corrigan
Robert P. Young, Jr.

WEAVER, J. I join in parts I through VI.

Elizabeth A. Weaver

18

 S T A T E O F M I C H I G A N

SUPREME COURT

In re:

The Honorable JAMES P. NOECKER,
Judge 45th Circuit Court
Centreville, MI 49032, No. 124477
_______________________________

YOUNG, J. (concurring).

I fully concur in the majority opinion. I write

separately, however, to explain why I believe removal to be

the appropriate sanction in this case.

The purpose of Judicial Tenure Commission proceedings

is not the punishment of the judge, but to maintain the

integrity of the judicial process and to protect the

citizenry from corruption and abuse. As such, this Court’s

primary concern in determining the appropriate sanction is

to restore and maintain the dignity and impartiality of the

judiciary and to protect the public.1

After reviewing the evidence in this case, I believe

that the evidence establishes respondent was intoxicated at

the time of the collision. Respondent left the scene of the

accident and constructed several inconsistent explanations

in order to avoid criminal responsibility for his

1
In re Jenkins, 437 Mich 15; 465 NW2d 317 (1991); In
re Ferrara, 458 Mich 350; 582 NW2d 817 (1998).
intoxicated driving. More egregious, respondent also lied

under oath during the course of the Judicial Tenure

Commission investigation, presumably in order to avoid

judicial disciplinary consequences.

Our judicial system has long recognized the sanctity

and importance of the oath.2 An oath is a significant act,

establishing that the oath taker promises to be truthful.

As the “focal point of the administration of justice,”3 a

judge is entrusted by the public and has the responsibility

to seek truth and justice by evaluating the testimony given

under oath. When a judge lies under oath, he or she has

failed to internalize one of the central standards of

justice and becomes unfit to sit in judgment of others.

Certainly, Judicial Tenure Commission proceedings are

intended to be remedial, not penal.4 The vast majority of

misconduct found by the Judicial Tenure Commission is not

fatal; rather, it reflects oversight or poor judgment on

2
See June v School Dist No 11, 283 Mich 533, 537; 278
NW 676 (1938) ( An oath is “'[a]n external pledge or
asseveration, made in verification of statements made, or
to be made, coupled with an appeal to a sacred or venerated
object, in evidence of the serious and reverent state of
mind of the party, or with an invocation to a supreme being
to witness the words of the party, and to visit him with
punishment if they be false.'") (citation omitted).
3
In re Callanan, 419 Mich 376, 386; 355 NW2d 69
(1984).
4
In re Probert, 411 Mich 210; 308 NW2d 773 (1981).
2
the part of a fallible human being who is a judge. However,

some misconduct, such as lying under oath, goes to the very

core of judicial duty and demonstrates the lack of

character of such a person to be entrusted with judicial

privilege.

Where a respondent judge readily acknowledges his

shortcomings and is completely honest and forthcoming

during the course of the Judicial Tenure Commission

investigation, I believe that the sanction correspondingly

can be less severe. However, where a respondent is not

repentant, but engages in deceitful behavior during the

course of a Judicial Tenure Commission disciplinary

investigation, the sanction must be measurably greater.

Lying under oath, as the respondent has been adjudged to

have done, makes him unfit for judicial office.

It is for these reasons that I support respondent’s

removal from office.

Robert P. Young, Jr.
Clifford W. Taylor
Maura D. Corrigan

3

 S T A T E O F M I C H I G A N

SUPREME COURT

In re:

THE HONORABLE JAMES P. NOECKER,
JUDGE 45TH CIRCUIT COURT
CENTREVILLE, MI 49032, No. 124477
_______________________________

WEAVER, J. (concurring).

I agree that Judge Noecker should be removed from the

bench and join parts I – VI of the majority opinion. The

accident, Judge Noecker’s conduct following the accident,

and his attempts to deceive the public and the police with

incredible explanations of the accident are clearly

prejudicial to the administration of justice and undermine

the public’s trust and confidence in the judiciary.

Therefore, removal is the appropriate discipline.

I also concur in the result that Judge Noecker should

not be assessed costs, but for different reasons. Rather

than rely on a lack of notice or standards as the reason

not to assess costs, I would not assess costs because it

appears to me that this Court has no constitutional

authority to assess the judge for the costs of the

proceedings. Const 1963, art 6, § 30 provides that “the

supreme court may censure, suspend with or without salary,

retire or remove a judge . . . .” Nothing in this
constitutional provision gives this Court any authority to

discipline the judge by assessing the judge the costs of

the Judicial Tenure Commission proceedings against him or

her.

Elizabeth A. Weaver

2

 S T A T E O F M I C H I G A N

SUPREME COURT

In re:

THE HONORABLE JAMES P. NOECKER,
Judge, 45th Circuit Court
Centreville, MI 49032
No. 124477
_______________________________

MARKMAN, J. (concurring).

I concur with the results of the majority opinion, as

well as with much of its analysis. Had I been a member of

the Judicial Tenure Commission (JTC), I might possibly have

reached a different conclusion in terms of an appropriate

sanction, for there is much with which I agree in the

dissenting opinion. In particular, I agree with the

dissenting opinion that more egregious behavior on the part

of judges has, in the past, been met with less sanction

than permanent removal. Post at 1. Further, I believe

that the thirty-five years of honorable public service on

the respondent's part deserve more consideration in the

formulation of a sanction than, to my eye, has been given

here.

Nonetheless, I concur with the majority opinion

because, as it correctly notes, "'[o]ur power of review de

novo does not prevent us from according proper deference'"
to the processes of the JTC. Ante at 10 (citation

omitted). While the majority emphasizes the deference due

the "'master's ability to observe the witnesses' demeanor

and comment on their credibility,'"1 id., I would also

emphasize the deference due the commission in its

recommendation of a sanction. In In re Brown, 461 Mich

1291 (2000), this Court directed the commission to more

clearly articulate its standards in determining an

appropriate judicial sanction, and we set forth a number of

non-exclusive factors to be considered in this process. We

stated in this regard:

As a constitutionally created state agency
charged with making recommendations to this Court
concerning matters of judicial discipline, the
JTC is entitled, on the basis of its expertise,
to deference both with respect to its findings of
fact and its recommendations of sanction.
However, such deference cannot be a matter of
blind faith, but rather is a function of the JTC
adequately articulating the bases for its
findings and demonstrating that there is a
reasonable relationship between such findings and
the recommended discipline.

* * *

. . . Where standards of this sort have been
promulgated and reasonably applied to individual
cases, this Court owes considerable deference to
the JTC. [461 Mich at 1292, 1293]

1
I concur with the majority in its conclusion that the
master "fairly and objectively" presided over this case.

2

 The commission here, in my judgment, has

conscientiously evaluated the factors set forth in Brown,

as well as additional factors, and has "adequately

articulated the bases for its findings." Although personal

consideration of these factors might have led me in the

direction of the sanction set forth in the dissenting

opinion, I cannot say that there is no "reasonable

relationship between [the commission's] findings and the

recommended discipline." Rather, I believe that the

commission has identified such a relationship and therefore

is entitled to deference by this Court.

It was proper for this Court to promulgate the Brown

factors so that we could derive the "additional information

necessary to perform [our] constitutional function of

judicial discipline under Const 1963, art 6, § 30(2)."

Brown, supra at 1291. Having promulgated these factors,

and the commission having reasonably considered them,

"proper deference" is now required on our part. While such

deference is that which is owed to any executive or

administrative agency, the constitutional status of the

commission, Const 1963, art 6, §30, underscores the

necessity of such deference in matters of judicial

3

discipline. On the basis of such deference, I concur with

the conclusions of the majority opinion.

Stephen J. Markman

4

 S T A T E O F M I C H I G A N

SUPREME COURT

In re:

THE HONORABLE JAMES P. NOECKER,
Judge, 45th Circuit Court
Centreville, MI 49032 No. 124477
_______________________________

CAVANAGH, J. (dissenting).

Viewing all the alleged conduct at issue here, I

cannot conclude that respondent’s removal is warranted.

Much more egregious behavior on the part of judges has been

met with far less sanction than permanent removal. See In

re Hathaway, 464 Mich 672; 630 NW2d 850 (2001) (suspending

the judge for six months without pay for the judge’s gross

mishandling of three cases and overall “lack of industry”);

In re Brown (After Remand), 464 Mich 135; 626 NW2d 403

(2001) (suspending the judge for fifteen days without pay

after finding that the judge misused the prestige of his

office in addition to having four previous instances of

misconduct); In re Moore, 464 Mich 98, 132-133; 626 NW2d

374 (2001)1 (characterizing the judge’s “pattern of

persistent interference in and frequent interruption of the

1
I concurred, writing that I would have imposed the
sanction of nine months without pay recommended by the
Judicial Tenure Commission.
trial of cases; impatient, discourteous, critical, and

sometimes severe attitudes toward jurors, witnesses,

counsel, and others present in the courtroom; and use of a

controversial tone and manner in addressing litigants,

jurors, witnesses, and counsel” as warranting a six-month

suspension without pay); and In re Bennett, 403 Mich 178;

267 NW2d 914 (1978) (refusing to remove the judge from the

bench, despite finding that he engaged in “demonstrably

serious” intemperance, instead imposing a one-year

suspension without pay).

In In re Seitz, 441 Mich 590; 495 NW2d 559 (1993), on

which the Judicial Tenure Commission (JTC) relies, this

Court removed the judge from office at the JTC’s

recommendation. I find that case easily distinguishable.

Judge Seitz exhibited such unfathomable conduct toward his

colleagues and staff for over ten years that it took this

Court twenty-seven pages to delineate it. Id. at 594-621.

He also engaged in felonious conduct by installing a

wiretap on his phone. Id. at 597-599. Moreover, he abused

his contempt power by deliberately ordering a person to

ignore an administrative order of the chief judge and

follow Judge Seitz’s contradictory order instead. When the

person refused to do so, Judge Seitz had him arrested and

brought to the courtroom. There, the judge performed a

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mock hearing devoid of due process and had the person

jailed. Id. at 599-604. Judge Seitz also had

unprofessional personal relationships with his staff. Id.

at 604-611.

The JTC points to one paragraph in Seitz, supra at

622, that pertained to the judge’s failure to file reports

with the State Court Administrative Office as support for

its removal recommendation. But Judge Seitz’s failures in

that regard paled in comparison to his other conduct, and

it is impossible to believe that his failure to file

several reports alone would have resulted in his removal

from the bench. Similarly here, where the two allegations

are that respondent lied about the accident and failed to

properly manage his docket, the JTC’s removal request is

extremely harsh.

The JTC relies on two cases, In re Ferrara, 458 Mich

350; 582 NW2d 817 (1998), and In re Ryman, 394 Mich 637;

232 NW2d 178 (1975), for the proposition that lying, by

itself, is sufficient to remove respondent from the bench.

But in both cited cases, more was at issue. For instance,

in Ferrara, the misconduct charges stemmed from the

revelation of eleven tapes on which the judge was recorded

lashing horrific racial and ethnic slurs at or about people

in both her personal and professional life. This Court

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found that irrespective of the tapes, Judge Ferrara’s

conduct surrounding the investigation was grounds for

removal. For instance, Judge Ferrara told the media and

the JTC that the tapes were fabricated, and she attempted

to admit a fraudulent letter twice, the second time after

her first attempt was rejected. Additionally, the judge’s

conduct during the formal hearing was so “'inappropriate,

unprofessional, and demonstrat[ive of] a lack of respect

for the judicial discipline proceedings,’” that this Court

found the incidents too numerous to recount. Ferrara,

supra at 370 (citation omitted).

Because of the severe and obvious nature of the

judge’s lies and her continuing disrespect for the

judiciary, this Court concluded that removal was warranted,

stating:

We adopt the commission’s recommendation and
find respondent’s untruthful and misleading
statements to the public and press, her attempt
to commit a fraud on the Court by twice
attempting to introduce the Avela Smith letters,
and her unprofessional and disrespectful conduct
during each stage of the proceedings to
constitute misconduct in violation of the court
rules and judicial canons. [Id. at 372.]

Similarly, Ryman, supra, involved issues of backdating

and improper signing of deeds, false testimony, allowing a

court clerk to perform a magistrate’s duties, and

continuing the practice of law after becoming a judge.

Ryman, supra at 642-643. In my opinion, neither Ferrara
4
nor Ryman supports the JTC’s assertion that a suspected lie

is sufficient to remove a judge from office.

In sum, I do not believe there is support for

permanently removing respondent from office. It seems that

where a judge has been removed from office at least in part

for lying, the fact that the suspected lies were indeed

lies was uncontroverted. Here, though, while respondent’s

story about the accident is undeniably suspicious, there is

no proof that respondent lied. Without more than

speculation that respondent was being untruthful in denying

that he drank before he drove, the most severe punishment

hardly seems fitting.

Additionally, I do not think that the JTC adequately

supported a finding that respondent’s admitted alcoholism

caused his perceived administrative failures. The logic

behind the asserted causal connection was flawed: even

though respondent admits abusing alcohol, it does not

necessarily follow that his shortcomings on the job are

related to that abuse. The expert testimony did nothing to

assist in establishing the link between alcohol abuse and

work performance. If anything, Dr. Miller’s testimony

blurred the connection by pointing to a possible obsessive-

compulsive disorder as the cause of respondent’s work-

related problems.

5

 In any event, respondent had plausible explanations

for at least some of his work-related behavior. And no one

has ever seen respondent drinking or drunk on the job,

including his long-time clerk. No attorney testified

negatively about respondent’s behavior in court, and some

offered reasons for case delays that were totally unrelated

to respondent. And notably, the JTC admitted at oral

argument that its inclusion of these work-related

shortcomings were but “a footnote” to the gravamen of its

investigation, the accident.

I, therefore, cannot accept the JTC’s recommendation

of removal. Although I believe that its finding that the

crash was alcohol-related is supported on the record, a

much lesser sanction is warranted, and the sanction should

be tailored to that particular event. As such, I would

suspend respondent, without pay, for a period of fifteen

months, until May 1, 2006.

In light of my conclusions, I do not see grounds for

imposing the costs of the JTC’s prosecution on respondent,

particularly in light of its admission that its request for

reimbursement is unprecedented and unsupported by the court

rules.

Michael F. Cavanagh

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