In Re Hathaway

Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan

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

FILED JULY 10, 2001

IN RE HONORABLE CYNTHIA GRAY HATHAWAY,

Judge of the Third Circuit Court,

Detroit, Michigan.

No. 112495

______________________________________/

PER CURIAM

The Judicial Tenure Commission recommends that we suspend

Wayne Circuit Judge Cynthia Gray Hathaway for thirty days,

without pay, for misconduct in the performance of her judicial

office. Because we conclude that the severity of the

misconduct at issue warrants greater discipline than

recommended, pursuant to Const 1963, art 6, § 30(2) and MCR

9.225, we modify the recommendation of the commission and

order that Judge Hathaway be suspended without pay for a

period of six months.

I

Facts

The recommendation of the Judicial Tenure Commission is

based on its findings of fact. In turn, those findings are

adopted from findings made by the master.1 Specifically, the

commission found that Judge Hathaway acted improperly in her

handling of two cases, and in an overall lack of industry that

was exemplified by a third case.2

1
MCR 9.210, 9.215.

2
The master further found that Judge Hathaway had

committed judicial misconduct in her dispositive rulings in

several cases that are not discussed in this opinion. The

commission rejected those findings, explaining:

Based on the record before us, the decision­
 A

The first case is a drug prosecution, People v Spearman,

in which Judge Hathaway conducted an arraignment at a Detroit

police precinct. With regard to this case, the commission

adopted these findings of the master:

Late in the afternoon of May 6, 1997, Attorney

Otis Culpepper, criminal lawyer, called the

Respondent at her home as she was arriving from

work. He advised that his client, Bruce John

Spearman[,] had been arrested by the Detroit Police

Department on a marijuana charge. His client was

on bond from federal district court on a drug

charge. Bond was $30,000 cash and required that he

wear a tether. He further requested that

Respondent come to the 7th District Precinct office

and arraign the defendant so that he could be

released and abide by the federal release

restriction to be at his home by 7:30 in the

evening. Police Lt. Gary D. Hendrix and Attorney

Otis Culpepper both testified that Respondent knew

that there were additional drug charges, including

cocaine and heroin, before the arraignment.

Notwithstanding that, the arraignment took place on

the 5th floor of the police precinct because there

was an altercation in the lobby of the 1st floor.

At the time of the arraignment, Respondent had no

documentary evidence of the charges and arraigned

the defendant on “a warrant for marijuana” only.

At the time, however, Respondent had been informed

by Lt. Gary D. Hendrix of the fact there was a

warrant for cocaine and heroin. This was not

mentioned in the arraignment. Respondent fixed

bond at $10,000, 10%. Bond was furnished by

Attorney Culpepper and Defendant Spearman was

released from custody and ordered to report the

following day to fix a date for his preliminary

examination.

Defendant Spearman absconded on bond and was

not arrested until January 21, 1998, in St. Louis,

Mo., and returned to this jurisdiction.

There was testimony that the ususal procedure

on an arrest of this type was to detain the

defendant and have him arraigned the following

morning before a circuit judge or magistrate. At

that time, the police record and other information

about the defendant and the crime would be

available to have at the arraignment. Respondent

also knew that Christine A. Kowal, Assistant

Prosecuting Attorney, was on her way to attend the

arraignment and also knew that Sgt. Dwane Blackmon

was on his way with a copy of the defendant’s

police record. Notwithstanding this, Respondent

decided to go ahead with the arraignment because

she had “waited long enough.” She said that she

was aware of the federal charge and bond and felt

that a larger bond was not required under these

circumstances. Both Lt. Hendrix and Assistant

Prosecutor Kowal advised that they had never

making by the judge in these specific cases is not

a matter for a determination of judicial misconduct

by the JTC. It is not the responsibility of the

JTC to function as an appellate court nor can

erroneous decisions by a judge made in good faith

and with diligence be grounds for judicial

misconduct. MCR 9.203(B).

2

 experienced an arraignment such as this before a

circuit judge in the police precinct. Other

attorneys and police officers testified that they

never knew of such a proceeding and it was against

all accepted procedures and court rules.

On the basis of these findings, the commission reached

the following conclusion:

The arraignment conducted by the Respondent at

the 7th Precinct headquarters in People v Spearman

was inappropriate in that it was contrary to all

practice and procedure under court rules and

contrary to the practice and custom in Wayne

County. It was not conducted in court during

normal business hours and was conducted without a

prosecutor present. A questionable bond was

established under the circumstances considering the

crimes alleged. The entire procedure gave the

appearance of impropriety, contrary to Canons 1, 2,

and 3 of the Code of Judicial Conduct and MCR

9.205(A) and (C)(4).

B

The second case on which the commission’s recommendation

for discipline is based is People v Crosse. With regard to

Crosse, the commission adopted the following findings:

Defendant Crosse, a middle-aged man who had

retired to the Upper Peninsula, was charged with

CSC-1 and CSC-2 by a teen-age girl who was a former

neighbor. It was agreed between defendant’s

counsel and Respondent that the cases against

defendant in Macomb County would be tried first.

He was acquitted of the Macomb County charges and

Respondent attempted to induce Defendant Crosse to

waive a jury so that the case could be expedited.

Defendant Crosse, however, insisted upon a jury

trial and Respondent threatened to put him in jail

if he did not waive the jury.

At approximately 11:00 a.m., April 28, 1997,

when the case had not been called, defendant and

his attorney left the courtroom, notifying the

prosecutor that they were stepping out for a

“cigarette” and would be available when the case

was called. Shortly thereafter the case was called

and when the defendant and his attorney were not

immediately in the courtroom and ready to proceed,

Respondent ordered a habeas issued for the arrest

of both the attorney and defendant.

Within a few minutes, defendant appeared in

the courtroom and Respondent had him arrested and

detained in a restricted area of the courtroom.

When defendant’s counsel returned, he was released.

The trial did not start on that day, but on the

following day, April 29, a jury was sworn and,

again, the matter was adjourned until April 30,

1997, at 9:00 a.m. It was then adjourned to May 8,

1997, and continued on May 12, 1997.

Defendant’s attorney then filed a motion for a

speedy trial to be heard on May 8, 1997.

Respondent showed her anger at the hearing of this

motion, and accused defendant’s counsel of

“dishonesty” and cut him off from placing matters

on the record. Her anger was apparent to all in

the courtroom, and the matter appeared to be

delayed solely because of defendant’s resistance to

3

 waive a jury.

This was obviously prejudicial conduct on the

Bench, which was apparent to all who were in the

courtroom.

With respect to Crosse, the commission reached this

conclusion:

Respondent’s conduct in the case of People v

Crosse, wherein Respondent threatened to put

defendant in jail if he did not waive his

constitutional right to a jury trial, as well as

questionable adjournments in view of defendant’s

resistance to waive a jury, constituted a failure

to properly perform Respondent’s judicial duties,

as well as conduct prejudicial to the

administration of justice, contrary to Canons 1, 2

and 3 of the Code of Judicial Conduct and MCR

9.205(A) and (C)(4).

C

The third basis for the commission’s recommendation of

discipline is a problem noted in connection with Crosse--
--a

remarkable pattern of adjourning cases and failing to attend

in timely fashion to the business of the court. An example is

the handling of a case called People v Ketchings. Here, the

commission adopted the following findings of the master:

Defendant Ketchings was one of four

co-defendants accused in a shooting death of a

9-year old girl. Separate trials were set for the

four defendants. Respondent tried the first three,

who were convicted and given extended prison

sentences. The Ketchings matter was finally set

for trial for December 9, 1996. The attorneys were

ready for trial, efforts were made to negotiate a

plea which were unsuccessful, and Respondent

adjourned the trial until January 30, 1997. Both

the attorneys were ready to proceed on that date.

The matter was adjourned because Respondent said

“She did not feel like hearing it” on that date and

later recused herself. The attorneys then went to

Chief Judge Michael Sapala, who attempted to induce

the Respondent to try the matter but was

unsuccessful. When the attorneys returned to the

courtroom, Respondent recused herself on the basis

that she could no longer be impartial because she

had tried the other three defendants. Both

attorneys tried to persuade her to proceed with the

trial since she would not be the trier of the facts

and would only have to make rulings upon the

evidence. Respondent refused to try it.

The case was thereafter assigned to Judge

Harvey Tennen, who because of the substantial

delay, was compelled to release Defendant Ketchings

pending trial. There had been no evidence that she

was going to recuse herself or had even thought

about it when she reset the case on December 9,

1996, to be tried on January 30, 1997, so another

trial date was set.

Some of the problems with scheduling and

finding that the case was adjourned were vividly

set forth by Lisa Lindsey, Special Assignment,

Assistant Prosecuting Attorney in the Ketchings

4

 case.

“Well, the adjournments on the Ketchings case,

you have to take into combination with the other

codefendants. All the witnesses were the same on

each case, and as it relates to having witnesses

who are cooperative, having witnesses who are

available, it really impacted on the witnesses

because the witnesses would come down. Even the

police witnesses they would come down. They would

be there and nothing--
--and it wouldn’t go. And the

witnesses--
--I know specifically in the civilian

witnesses, we had a lot of trouble with the

civilian witnesses. We had to get bench warrants

for the civilian witnesses in order to get them in.

“At some points, I was literally begging the

witnesses to show up for the next hearing. The

witnesses would curse me out, and it just-- --and

then, you know, they would just-- --they would

cuss--
--curse me out. I mean, you know, they’d be

very profane, very upset. They’d complain that

they were taking off from work, not getting paid.

The victim’s mom, she was always very, very upset.

“And then you would have--
--when the witnesses

would come down, every time the witnesses would be

there, the defendant’s family and friends would be

there, and there would always be a situation where

in the hallways you would worry about whether a

fight was going to break out between the victim’s

family and the defendant’s friends and family.

They’d be out there wolfing [sic]. When I say

wolfing, it’s a slang term, you know, for talking

back and forth at each other and things of that

nature. So it was difficult.”

These are clear violations of the statute and

Canons of judicial conduct and prejudicial to the

administration of justice.

In addition to the facts pertinent to Ketchings, the

master made additional findings regarding Judge Hathaway’s

handling of her docket and her apparent pattern of absence.

In this respect, the master relied on a report submitted in

1996 by Susan B. Boynton of the State Court Administrative

Office. The contents of this report, which Ms. Boynton

confirmed in her testimony at the hearing, included this:

Examination of the daily court sheets in the

Systems Department at Recorder’s Court presents

another possible theory for the increase in

adjournments. For many days during the summer, all

proceedings were adjourned and the judge’s

signature was stamped at the bottom of the daily

court sheets, not signed as required by the

Recorder’s Court Docket Control Directive 93-5 (see

attachment 2).[3] The same Directive requires the

3

Docket Control Directive: DCD No. 93-5

Date: February 1, 1993

Re: Maintenance of Records on Court Sheets

1. Each judge shall personally sign the court

sheets recording each day’s activity.

5

 court clerk to indicate on the court sheet if the

judge takes an unanticipated leave for vacation or

illness. There were no indications on the court

sheets in those months and no leave of any type

reflected in the Recorder’s Court official

attendance record [4] for Judge Hathaway during those

months.

If judicial leave cannot explain the high

number of days when all or most of the proceedings

were adjourned, then the possibility exists that

Judge Hathaway was choosing not to do the scheduled

work in her courtroom. For example, June, 1996 had

20 working days. The court sheets are missing for

two days, six days had all matters adjourned and

four days had most proceedings adjourned. Trial

activity occurred on three days during the month,

resulting in one guilty verdict and one mistrial.

August, 1996 shows a similar pattern of work

habits. No official leave is recorded, yet nine of

the 19 working days on the court sheets showed that

all matters were adjourned and on another two days

most matters were adjourned. There was no trial

activity in August other than a plea at a scheduled

jury trial.

In light of the facts pertaining to Ketchings and Judge

Hathaway’s more generalized failure to perform the duties of

office, the commission reached this conclusion:

Respondent’s constant and repeated

adjournments of proceedings without good cause, as

exemplified in the case of People v Ketchings, as

well as repeated unnecessary and unexcused absences

from judicial responsibilities during normal court

hours were inappropriate. Likewise, Respondent’s

overall lack of industry and proper management of

her court docket as well as an unwillingness to

take corrective action or accept constructive

suggestions or assistance to improve case

management, constituted a hindrance to the

administration of justice and gave the appearance

of impropriety, all contrary to Canons 1 and 3 of

the Code of Judicial Conduct and MCR 9.205(A) and

(C)(2) and (4).

D

The overall conclusion of the commission was that Judge

Hathaway “has committed misconduct in office, in violation of

MCR 9.205(C), and violated the provisions of Canons 1, 2 and

3 of the Michigan Code of Judicial Conduct.” Without

2. If the judge takes an unanticipated leave

for vacation or illness, it should be indicated by

the court clerk on the court sheet. If the judge

comes in and leaves because of illness or other

business, that should also be indicated on the

court sheet.

3. In the absence of a judge on pretrial day,

a court clerk may not set subsequent proceeding

dates and indicate on the court sheets that

pretrial was held.

4
The record of this case does not contain the “official

attendance record.”

6

additional explanation, the commission then recommended that

this Court accept its findings of judicial misconduct and

impose a thirty-day suspension without pay.5

II

In lieu of acting upon that recommendation, we remanded

this case to the commission “for the articulation of standards

of judicial discipline, and the application of those standards

to the instant case, in order that this Court can meaningfully

carry out its powers of judicial review under Const 1963, art

6, § 30(2). See In re Brown, [461 Mich 1291 (2000)].” 461

Mich 1296 (2000).

On remand, the commission renewed its recommendation of

a thirty-day suspension without pay. The commission did not

provide further elaboration of its reasoning, noting that “the

composition of the Commission has changed substantially” since

its initial recommendation. The commission added:

In the future the Commission will, to the

extent possible, cite additional factors which may

facilitate the Supreme Court’s review of sanctions

imposed by the Commission.

This Court then placed the case on its calendar,6 and

directed the parties to brief the issue “whether the proposed

suspension of thirty days without pay is sufficient discipline

in this case.” 462 Mich 1233, 463 Mich 1201 (2000).

III

The Judicial Tenure Commission was established in 1968

when the people of Michigan amended the constitution to add a

§ 30 to article 6. When the commission comes to this Court

with a recommendation for discipline, it invokes the Court’s

jurisdiction under Const 1963, art 6, § 30(2), which provides:

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, 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

5
Eight of the nine commission members heard this matter.

All eight concurred in the recommendation.

6
MCR 9.224(C), (F).

7

 proceedings.

Under this Court’s constitutional authority to make rules

implementing Const 1963, art 6, § 30, we promulgated GCR 1963,

932 in early 1969.7 381 Mich lxxxiii (1969). When the

General Court Rules of 1963 were replaced in 1985 by the

Michigan Court Rules, the provisions of GCR 1963, 932 were

placed in separate rules within subchapter 9.200. 419A Mich

552-569 (1985).

When this Court receives a disciplinary recommendation

from the commission, it has authority to “censure, suspend

with or without pay, retire or remove” a judge.8 Const 1963,

art 6, § 30(2). On receipt of such a recommendation, this

Court undertakes a de novo review of the matter. In re

Ferrara, 458 Mich 350, 358; 582 NW2d 817 (1998). This review

occurs whether or not the respondent judge files a petition

with this Court. MCR 9.224(A), (C).

In 1969, when this Court exercised its constitutional

rulemaking authority under Const 1963, art 6, § 30 by

implementing GCR 1963, 932, we included this subrule:

The Supreme Court shall review the record of

the proceedings on the law and facts and shall file

a written opinion and judgment directing censure,

removal, retirement, suspension, or other

disciplinary action as it finds just and proper, or

reject or modify, in whole or in part, the

recommendations of the commission. [GCR 1963,

932.25.]

That subrule was not amended until 1985, when it was

replaced by MCR 9.225:

The Supreme Court shall review the record of

the proceedings and shall file a written opinion

and judgment which may direct censure, removal,

retirement, suspension, or other disciplinary

action, or reject or modify the recommendations of

7

We earlier had promulgated GCR 1963, 931 as a

transitional rule. 381 Mich lxxxii (1968).

8

Independent of Const 1963, art 6, § 30, which the

people of Michigan added to the constitution in 1968, this

Court has general superintending control of all Michigan

courts. Const 1963, art 6, § 4. This provision is a broad

grant of constitutional authority to take necessary action,

short of the outright removal of a judge. See In re Probert,

411 Mich 210, 229-233; 308 NW2d 773 (1981). See also In re

Huff, 352 Mich 402; 91 NW2d 613 (1958) and the discussion of

Huff by the framers of the 1963 constitution. 1 Official

Record, Constitutional Convention 1961, p 1269-1287. In the

present case, there is no need to explore the nature or

dimensions of this Court’s authority under Const 1963, art 6,

§ 4.

8

 the commission.

The court rule states our authority to modify a

recommendation of the commission, and the meaning of the word

”modify” encompasses authority to alter the recommended

discipline. Random House Webster’s College Dictionary defines

“modify” as follows:

[T]o change somewhat the form or qualities of;

alter partially; amend; to modify a contract. RANDOM

HOUSE WEBSTER ’S COLLEGE DICTIONARY 843 (2nd ed. 1997).9

Our respect for the judgment of the men and women who

have served on the commission is substantial, and to date we

have not had occasion to increase the discipline recommended

for a respondent judge--
--we likewise anticipate that few such

occasions will arise in the future. Yet our authority to

increase the recommended discipline is clear.10

9
The dissent purports to rely upon two dictionary

definitions that seemingly restrict the meaning of “modify” to

its “limiting” sense. Both of the dictionaries the dissent

references, however, include the definition of “modify” we

rely upon here.

10
There is no indication that the use of the term

“modify” was intended to permit or preclude this Court from

altering the recommended discipline so as to adequately

address the nature of the ethical infraction at issue.

Illustratively, the term “modify”, if construed to mean that

this Court could only reduce a sanction recommended by the

JTC, would, in our judgment, deny this Court the ability to

fairly and effectively carry out its obligations under MCR

9.225 to “review” the JTC’s record and to file a “written

opinion and judgment” in accord with that review. As we

recently observed in an order of remand to the JTC:

The most fundamental premise of the rule of

law is that equivalent misconduct should be treated

equivalently . . . it is the burden of the JTC to

persuade this Court that it is responding to

equivalent cases in an equivalent manner and to

unequivalent cases in a proportionate manner. In

other words, to demonstrate that there is a

consistently enforced system of judicial discipline

in Michigan.

* * *

The importance of such standards is both in

ensuring that the JTC is consistent in its

consideration of factors relevant to the level of

sanctions, and in enabling this Court, by its

constitutional obligation, to meaningfully review

the JTC’s recommendations. In re Brown, 461 Mich

1291, 1292 (2000).

Just as there is an obligation upon the JTC, derived from

the fundamental “rule of law”, to sanction in an equivalent

and proportionate manner, so too does this Court have such an

obligation under MCR 9.225. Satisfying this obligation would

not be possible if this Court could only “modify” the

recommended sanctions of the JTC in a downward manner. Unless

“modify” is given its ordinary meaning, to change or to alter,

9

 That we have authority to alter the recommended

discipline is bolstered by the persuasive decision of the

Washington Supreme Court in In re Disciplinary Proceeding

against Anderson, 138 Wash 2d 830; 981 P2d 426 (1999).

Working from a similar grant of constitutional authority,11 the

Washington Supreme Court considered a recommendation from the

state’s Commission on Judicial Conduct12 that a judge be

suspended without pay for four months and required to take a

specified “course of corrective action.” 138 Wash 2d 840.

For reasons stated at length by the Washington Supreme Court,

it decided instead to remove the judge from office. 138 Wash

2d 854. With regard to its authority to take such action, the

Washington Supreme Court explained:

This court reviews judicial disciplinary

proceedings de novo. In re Discipline of Deming,

108 Wash 2d 82, 87-89; 736 P2d 639; 744 P2d 340

(1987). De novo review of judicial disciplinary

proceedings requires an independent evaluation of

the record as the court is not bound by the

Commission's findings or conclusions. In re

Discipline of Turco, 137 Wash 2d 227, 246; 970 P2d

731 (1999). De novo review does not mean that the

Supreme Court conducts a new evidentiary hearing.

Rather, this court must independently determine if

the judge violated the Code of Judicial Conduct,

and, if so, the proper sanction to be imposed. Id.

The Commission bears the burden of proving factual

findings by clear, cogent, and convincing evidence.

Id. In evaluating the evidence, we necessarily

give considerable weight to credibility

the simultaneous pursuit of equivalence and proportionality in

this Court’s review of the recommendations of the JTC, would,

in many cases, be unattainable. Because we do not believe

that these objectives are in tension with one another, or that

there are occasions on which we should be constrained by one

from achieving the other, “modify” is properly interpreted, in

our judgment, to enable either upward or downward changes in

the recommendations of the JTC.

11

Upon the recommendation of the commission, the

supreme court may suspend, remove, or retire a

judge or justice. The office of a judge or justice

retired or removed by the supreme court becomes

vacant, and that person is ineligible for judicial

office until eligibility is reinstated by the

supreme court. The salary of a removed judge or

justice shall cease. The supreme court shall

specify the effect upon salary when it suspends a

judge or justice. The supreme court may not

suspend, remove, or retire a judge or justice until

the commission, after notice and hearing,

recommends that action be taken, and the supreme

court conducts a hearing, after notice, to review

commission proceedings and findings against the

judge or justice. [Wash Const, art 4, § 31(5).]

12
As in Michigan, the Washington commission is itself a

creature of the constitution. Wash Const, art 4, § 31(1).

10

 determinations by the Commission, as the body that

had the opportunity directly to observe the

witnesses and their demeanor. Id. Additionally,

we give serious consideration to the Commission's

recommended sanctions. In re Discipline of

Ritchie, 123 Wash 2d 725; 870 P2d 967 (1994).

Nevertheless, the Commission's recommendation is

just that. The constitution's use of the word

“recommend” indicates an intent to place the

ultimate decision to discipline in the Supreme

Court. Deming, 108 Wash 2d at 88. [138 Wash 2d

843 (emphasis supplied).]

IV

We explained in Ferrara that “[o]ur primary concern in

determining the appropriate sanction is to restore and

maintain the dignity and impartiality of the judiciary and to

protect the public.” 458 Mich 372. Thus, we chose a course

of discipline that was “based on the nature, extent, and

frequency of the misconduct.” 458 Mich 373.

Earlier, we had said this in In re Hocking, 451 Mich 1,

24; 546 NW2d 234 (1996):

In assessing the appropriate sanction in

judicial disciplinary proceedings, our primary

charge is to fashion a penalty that maintains the

honor and the integrity of the judiciary, deters

similar conduct, and furthers the administration of

justice. See In re Seitz, 441 Mich 590, 624; 495

NW2d 559 (1993).

In this Court’s Brown decision, we listed the following

standards, though not an exhaustive list, that the JTC shall

consider in making its recommendation:

(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

11

 considerations as race, color, ethnic background,

gender, or religion is more serious than breaches

of justice that do not disparage the integrity of

the system on the basis of a class of citizenship.

Brown, supra, at 1292-1293 (2000).

In its Anderson decision, the Washington Supreme Court

elaborated on similar criteria.13

In the present case, we cannot agree with the commission

that a thirty-day suspension without pay is sufficient

discipline. Applying the Brown standards to the instant case,

we believe that the course of sustained judicial misconduct

that this record reveals requires stronger disciplinary action

than the thirty-day suspension without pay that Judge Hathaway

consented to and which the JTC recommended to this Court. In

particular, we conclude that Judge Hathaway’s protracted

refusal to attend to her judicial duties has worked an

injustice, not only upon the defendants charged with crimes

who had every legitimate expectation that their cases would be

handled expeditiously by the court, but also the witnesses in

those matters, the very people on whom our system of justice

depends. The repeated unexplained adjournments of matters

pending before Judge Hathaway have worked an injury upon the

public and potentially contributed to the increasing cynicism

about our judicial system, its efficacy and fairness.

The circumstances of the arraignment in Spearman were

utterly irregular. The confusion regarding the charges

against Mr. Spearman and regarding the advisability of

facilitating his release were the direct result of Judge

13
In determining the appropriate sanction for judicial

misconduct, the court considers:

(a) whether the misconduct is an isolated

instance or evidenced a pattern of conduct; (b) the

nature, extent and frequency of occurrence of the

acts of misconduct; (c) whether the misconduct

occurred in or out of the courtroom; (d) whether

the misconduct occurred in the judge's official

capacity or in his private life; (e) whether the

judge has acknowledged or recognized that the acts

occurred; (f) whether the judge has evidenced an

effort to change or modify his conduct; (g) the

length of service on the bench; (h) whether there

have been prior complaints about this judge; (i)

the effect the misconduct has upon the integrity of

and respect for the judiciary; and (j) the extent

to which the judge exploited his position to

satisfy his personal desires. Deming, 108 Wash 2d

at 119-120. [138 Wash 2d 854-855.]

12

Hathaway’s inexplicable decision to place the interests of Mr.

Spearman and his counsel, Mr. Culpepper, ahead of all other

interests, including protection of the public. We employ the

term “inexplicable” advisedly, since no remotely convincing

explanation has yet been tendered for the handling of the

Spearman arraignment, nor can we imagine one.

The improper effort to persuade Mr. Crosse to waive his

right to a jury trial is another example of a serious one-time

breach of Judge Hathaway’s responsibility to use her judicial

power lawfully. However, it surely was connected to a more

serious problem that was ongoing--
--her prolonged failure to

attend in timely fashion to the business of her court.

Ketchings was chosen by the commission as an example of

a case in which Judge Hathaway’s refusal to do her work caused

profound suffering for the family of the victim and outrageous

inconvenience for the witnesses. However, it is only an

example. The record of this case amply demonstrates the

remarkable extent of Judge Hathaway’s failure to discharge her

judicial duties. We are not talking here of a failure to move

papers or to file administrative reports. Nor are we talking

about a judge having “a bad day”--
--or several. Rather, this

disciplinary proceeding concerns a judge who has simply

declined over an extended period to do her work.

Again citing Ketchings only as an example, the record

reflects twenty-one adjournments, five initiated by the

defense, none by the prosecution, and sixteen by the court.

After all this, the parties gathered for trial on January 30,

1997, only to be advised by Judge Hathaway that another

adjournment would occur because “I just don’t feel like doing

it.” Judge Hathaway then inexplicably recused herself from

the case, causing still more delay. The assistant prosecutor

described the mother of the nine-year-old victim as

“devastated” by the events of January 30. This record

establishes, if not a pattern of deliberate misconduct,

capricious conduct shockingly lacking in appropriate judicial

deliberation.

This is indefensible conduct. A judge’s whimsical

13

decision whether to work on a particular day, or during

particular months, cannot take precedence over the affairs

brought to the courthouse by the people for resolution.

As with Spearman, we are further troubled by the absence

of any plausible explanation for this conduct. Judge Hathaway

generally denies excessive absences, and relies on the fact

that her docket is reported to be current at this time.

Absent some understanding of why these problems occurred, or

even a direct acknowledgment that such a situation existed, we

see no reasonable basis for assuming that these problems are

safely behind her.14

For these reasons, we disagree with the JTC’s

recommendation that respondent be suspended only thirty days

without pay. In our judgement, the conduct of respondent is

deserving of far more serious discipline that is in keeping

with severity of the breach of standards of judicial conduct

demonstrated in this record. The discipline sanction should

(1) first and foremost impress upon the respondent the

severity and significance of her misconduct and (2) serve as

a strong motivation to deter her from future misconduct.

Highly relevant to our determination is the fact that Judge

Hathaway has never on this record acknowledged the nature of

her misconduct, or the deleterious effect that it has had on

the persons who appeared before her, or on the public’s

perception of the judiciary.

We conclude that our disciplinary goals will be best

served if Judge Hathaway is suspended without pay for a period

of six months.15

14
Indeed, the only Brown criterion not implicated in this

record is criterion seven. There is no evidence that any of

Judge Hathaway’s actions or inactions were predicated upon

consideration of race, sex or any other impermissible

characteristic.

15
Likewise, in In re Moore we ordered that Judge Moore

be suspended for a period of six months without pay. We

recognize that the Brown standards, as applied to the conduct

of Judges Hathaway and Moore, support proportionate sanctions.

A six-month suspension without pay is justified in Moore

because of Judge Moore’s pattern of misconduct extending over

a period of twenty years. Though Judge Hathaway’s misconduct

occurred over a shorter period of time in comparison to that

of Judge Moore, we believe a six-month suspension is justified

because of the troubling nature of Judge Hathaway’s conduct.

Accordingly, the misconduct engaged in by both Judges Hathaway

14

 V

The dissent contends that this Court does not have the

constitutional authority to increase the discipline

recommended by the JTC. In fact, the dissent suggests that to

do so violates our duty to the constitution. We believe, to

the contrary, that the dissent’s position is inconsistent with

the constitution. The dissent’s view results in partial

“immunization” of JTC decisions from accountability to any

elected branch of government and is contrary to the central

organizing principle of constitutional government–control by

the citizens, either indirectly (election of legislators,

executive or judicial officers all of whom are accountable for

their actions and the actions of their agents) or directly

(initiative or referendum) of all aspects of government.

Under the dissent’s approach, the JTC, selected not by the

people but by lower court judges, the State Bar of Michigan,

and the Governor,16 could conceivably give mild wrist slaps to

seriously misbehaving judges, and no one that reports directly

to the people, no member of this Court, no legislator, and no

Governor could do a thing about it. Such a departure from

fundamental constitutional theory, namely, a departure from

electoral accountability, should be a power found only if very

clearly stated in the constitution. We do not have that

situation here. Indeed, the dissent’s position can only be

attained by torturing the definition of the word “modify,”

suggesting that it only means a downward departure.

This is an interesting position for the author of the

dissent to advocate, given that only six months ago he voted

to increase a JTC recommended sanction. See In re Runco, 463

Mich 517, 518; 620 NW2d 844 (2001), the very thing he today

says is constitutionally forbidden. In that matter, Judge

and Moore are equally deserving of a six-month sanction.

16
Pursuant to Const 1963, art 6, § 30, the JTC has nine

members, one Court of Appeals judge elected by the Court of

Appeals judges, one circuit judge elected by the circuit

judges, one probate judge elected by the probate judges, one

district court judge elected by the district judges, three

members elected by the state bar of whom one shall be a judge

and two shall not be judges, and two members are appointed by

the Governor who shall not be judges, retired judges or

members of the state bar.

15

Runco was brought before this Court by the JTC with the

recommendation being a censure. We affirmed. Justice

Cavanagh, however, in dissent effectively asserted that the

sanction be “modified” upward from a censure to thirty days.

Id. at 524. A penalty, not to belabor the obvious, that was

considerably more severe than that recommended by the JTC.

As to the dissent’s analysis, after deconstructing the

definition of the word “modify” to claim it only allows a

downward departure (see n 9), it then urges that the language

“[o]n recommendation of the judicial tenure commission”

suggests that “[t]his Court’s actions in judicial discipline

cases that are not ‘on recommendation’ of the JTC are actions

. . . not authorized by the constitution.” Slip op pp 3-4.

However, the dissent’s argument is effectively undermined by

its further insistence that an increase from the JTC’s

recommended discipline is not “on recommendation” of the JTC,

but that a decrease from the JTC’s recommended discipline is

“on recommendation” of the JTC. We do not understand how the

dissent can, consistent with the constitution, vote in support

of a decrease in the discipline recommended by the JTC,17 yet

maintain that it is unconstitutional for this Court to

increase the JTC’s recommended discipline.18

17
See In re Simmons, 444 Mich 781; 513 NW2d 425 (1994).

In Simmons, this Court rejected the commission’s

recommendation of a public censure and did not impose any

punishment.

18
The dissent's theory of what "on recommendation" means

can only be described as a "ratchet construction"—one that

proceeds in only one direction. The dissent urges that the

Mikesell matter, in which this Court rejected the JTC's

recommendation of permanent removal in favor of a time-limited

suspension, was nonetheless a decision made "on

recommendation" "because the more severe discipline, or more

bases of misconduct, recommended by the JTC necessarily

include lower levels of discipline and the bases of misconduct

recommended, but not accepted." Slip op, p 5 n 1 (emphasis

added).

Apart from the fact that this explanation has a certain

impenetrable Alice in Wonderland logic about it, and leaving

aside that judicial discipline jurisprudence recognizes no

"lesser included offenses," the dissent's argument is

internally inconsistent. If this Court rejects the JTC

recommendation and interposes a lower level of discipline, the

Court has not acted on the recommendation as the dissent

contends. On the contrary, if the dissent's argument were

truly consistent, then when, as in Mikesell, this Court

rejects some of the bases for discipline the JTC relied upon,

the Court would then be obligated to remand the case to the

JTC for a new recommendation concerning the remaining acts of

16

 Indeed, consistent with Justice Cavanagh’s own voting

record, we are convinced that the phrase “on recommendation”

is an expression on how the judicial discipline process is

initiated. Once the JTC makes a recommendation of discipline,

this Court may accept or reject that recommendation. Inherent

in our authority to reject a JTC recommendation is the option

to decide the appropriate discipline to impose, whether it be

an affirmance, a reduction, or an increase in the

recommendation of the JTC.19

It is also noteworthy that the dissent has no response to

the anomalous situation, identified in note 10, in which this

Court would find itself if “modify” were interpreted only to

refer to a downward change in sanction. We would be precluded

in many instances from achieving both equivalence and

proportionality in our sanctions, instead necessarily having

to subordinate one or the other of these fundamental judicial

values in favor of the other. In fact, the most that can be

argued by one holding the position that no upward departure is

constitutionally allowed—and it has been said by none other

than Justice Cavanagh himself—is that increasing the

recommended suspension has “never directly [been] addressed by

this Court before” (except of course, in Justice Cavanagh’s

dissent in Runco). See Hathaway, 463 Mich 1201 (2000). This

case presents a question of original impression, rather than

as the dissent would characterize it, a departure from an

unbroken line of cases for thirty-three years that have held

contrary to today’s majority. Only if “modify” is accorded

the meaning adopted by the majority can this Court

simultaneously achieve both of these indispensable ends.

Finally, we could not disagree more with the dissent that

Judge Hathaway was not aware of the possibility that “the

harshest discipline” she might face may go beyond that

misconduct. Neither the dissent nor this Court has

interpreted the Const 1963, art 6, § 30(2) in this fashion and

nothing in that provision compels such a construction.

19
The dissent’s position would also preclude this Court

from being able to ensure fairness and proportionality across

discipline cases. See footnote 10.

17

recommended by the JTC. Slip op, p 15. Judge Hathaway fully

contested the charges at every level available to her at the

JTC. In this Court’s July 26, 2000, order directing that this

case be placed on the calender for oral argument and also

directing the parties to address the sufficiency of the

recommended discipline, Judge Hathaway was fully apprised that

she might face an increased sanction from that recommended by

the JTC. See 463 Mich 1201 (2000). Even in the dissenting

statement prepared by Justice Cavanagh, when this matter was

set for oral argument, Judge Hathaway was provided with

further notice of the possibility that this Court might not

believe a thirty-day suspension is justifiable and that

increased sanctions might be forthcoming. Here is what

Justice Cavanagh said:

I can only assume that implicit in this

Court’s order is the issue whether this Court

has the authority to increase any discipline

recommended by the Judicial Tenure Commission,

an issue of great significance and one never

directly addressed by this Court before. 463

Mich 1201 (2000). Id.

Indeed, Judge Hathaway’s brief addressed the issue whether

this Court had the authority to increase the recommended

suspension and the issue was explored further when we heard

oral argument. We believe that there was no question that

Judge Hathaway was aware of the potential for an increased

sanction from that recommended by the JTC.

For these reasons, we do not agree with the dissent.

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

issue the judgment order forthwith.

CORRIGAN , C.J., and TAYLOR , YOUNG , and MARKMAN , JJ.,

concurred.

18

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

SUPREME COURT

IN RE HONORABLE CYNTHIA GRAY HATHAWAY,

Judge of the Third Circuit Court,

Detroit, Michigan.

No. 112495

_____________________________

WEAVER, J. (concurring).

I concur in the result and the reasoning of parts I

through IV of the majority opinion.

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

SUPREME COURT

IN RE HONORABLE CYNTHIA GRAY HATHAWAY,

Judge of the Third Circuit Court,

Detroit, Michigan.

No. 112495

________________________________

CAVANAGH , J. (dissenting).

With its decision in this case, this Court departs from

thirty-three years of precedent to assert that it has the

constitutional authority to impose a level of discipline that

exceeds the discipline recommended by the Judicial Tenure

Commission. It does so in a matter that the JTC has twice

considered and in which twice a unanimous JTC and the

respondent Judge Hathaway have agreed on the appropriate level

of discipline. I do not believe that this Court has the

constitutional authority to increase the discipline

recommended by the JTC and, accordingly, I must respectfully

dissent.

I

As our deliberations in these cases have invariably

demonstrated, our views of what is appropriate and

“proportionate” discipline vary greatly. The final level of

discipline imposed quite often is a negotiated level on which

at least a majority of this Court can agree. I have no reason

to doubt that the decisional process for the JTC works

similarly. Any recommendation emanating from that body, more

often an amalgam of its members opinions, is a subjective

view. Because the JTC has the experience of dealing with

these matters routinely, I have usually felt great reluctance

in replacing the JTC’s determination of an appropriate

discipline with my own subjective view. On some occasions, I

have joined this Court’s rejection of recommended discipline

as inadequate. See, e.g., In re Griffin, 448 NW2d 352 (1989).

However, in each instance of this Court finding the

recommended discipline inadequate, it has returned the matter

to the JTC for reconsideration and the possibility of a new

recommendation. With its decision in this case, though, a

majority of this Court rejects the JTC’s twice-offered,

unanimous recommendation, and sua sponte raises the level of

discipline imposed. In doing so, it also raises the stakes

and alters the historically understood dynamic in judicial

discipline proceedings.

A. THE SUPREME COURT ’S AUTHORITY TO INCREASE DISCIPLINE

Before addressing the now-dynamited dynamic, though, I

must address the majority’s error in concluding that this

Court even has the authority to increase the level of

discipline recommended by the JTC. The JTC was created by the

Michigan Constitution, and this Court’s authority over

judicial discipline is granted by that document as well. Our

authority, however, is limited:

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, 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).]

The majority concludes that this provision gives this Court

the authority to increase the level of discipline recommended

by the JTC. It observes that this Court may “censure,

suspend, with or without pay, retire or remove” a judge. See

slip op at 11, quoting Const 1963, art 6, § 30(2). However,

I cannot agree with that conclusion because it does not

account for the common understanding of the constitution.

When interpreting constitutional provisions, this Court

applies the rule of common understanding, first articulated by

Justice COOLEY . Any such analysis is conspicuously absent from

the majority opinion, but under this rule, we interpret the

constitution to have the meaning most obvious to the common

understanding, which is the meaning reasonable minds, the

great mass of the people, would give it. See Traverse City

Sch Dist v Attorney Gen, 384 Mich 390, 405; 185 NW2d 9 (1971).

2

The most obvious sense of the constitution is that this Court

may impose the levels of discipline mentioned, but that it may

only do so “[o]n recommendation of the judicial tenure

commission . . . .” This phrase introduces this Court’s power

in judicial discipline cases, and conditions any exercise of

this Court’s authority on that exercise first having been

recommended by the JTC. If the JTC has not recommended to

this Court that the Court exercise its authority to impose a

certain penalty, then any such exercise by definition cannot

be “on recommendation” of the JTC. This Court’s actions in

judicial discipline cases that are not “on recommendation” of

the JTC are actions in the first instance, and are not

authorized by the constitution. Rather, they are an assertion

of plenary power over judicial discipline cases.

This exercise of plenary power is contrary to this

Court’s demonstrated understanding of its proper role in

judicial discipline cases. For example, In re Mikesell, 396

Mich 517; 243 NW2d 86 (1976), held that § 30(2) authorizes

this Court to act in judicial discipline cases only on the

JTC’s recommendations. In Mikesell, the JTC filed a complaint

against the respondent judge, alleging twelve instances of

misconduct. However, only five of the twelve allegations

survived the initial proceedings and were recommended to this

Court as bases for discipline. One of the issues this Court

had to decide was whether it could consider all twelve

allegations, or only those five that survived the JTC’s

review. The Court concluded that the allegations upon which

the JTC had not relied were “not part of the recommendation of

the Commission and [would] not be considered by this Court.”

Id. at 526. Thus, Mikesell held that in judicial discipline

cases, this Court is limited to acting on recommendation of

the JTC, and matters beyond the JTC’s recommendation are not

to be considered by the Court.1

1

Occasionally, this Court has deviated downward from

both the JTC’s recommendations on the bases of discipline and

the level of discipline. In Mikesell, for example, the JTC

alleged five bases of misconduct and recommended that the

(continued...)

3

 Despite the Court being restricted to acting “on

recommendation” of the JTC, a majority of this Court imposes

discipline on respondent that is beyond the JTC’s

recommendation. The JTC recommended that respondent receive

a thirty-day suspension, but the Court has gone well beyond

that recommendation to impose a six-month suspension. Like

the bases of discipline that were not recommended and could

not be considered in Mikesell, the six-month suspension the

Court imposes on respondent was not recommended to this Court,

so this Court lacks the constitutional authorization to

consider such discipline, let alone the authorization to

impose it on respondent. If the Court is unhappy with the

JTC’s recommendation, it should follow our longstanding

practice and remand the case to the JTC, rather than assert

its own power to act beyond the JTC’s recommendation.

Because the constitution limits this Court to the

discipline recommended by the JTC, I also cannot agree with

the majority’s interpretation of MCR 9.225. That rule, which

provides that this Court may “modify” the JTC’s

recommendations, must be read to conform to the Constitution.

As we stated in Grievance Admin v Underwood, 462 Mich 188,

193; 612 NW2d 116 (2000), the court rules are interpreted

under the principles of statutory construction, which require

us to read the court rules in a manner that does not conflict

1
(...continued)

respondent judge be removed from office. However, the Court

accepted only three of the bases for discipline, and suspended

the judge for one and a half years. See Mikesell at 520, 539;

see also In re Moore, 464 Mich 98; ___NW2d __ (2001)

(rejecting bases of misconduct and lowering the recommended

discipline).

Although these cases represent variations from the JTC’s

recommendations, the Court’s actions in them did not go beyond

the JTC recommendations. For example, the JTC recommended

removal in Mikesell, but the Court ordered a suspension. The

suspension was “on recommendation” of the JTC because

permanent removal certainly entails one and a half years off

the bench. When the Court has ordered less severe discipline

than the JTC has recommended, or has not accepted all the

bases of misconduct, the Court nevertheless acts “on

recommendation” of the JTC because the more severe discipline,

or more bases of misconduct, recommended by the JTC

necessarily include the lower levels of discipline and the

bases of misconduct recommended, but not accepted. Thus, I

disagree with the majority’s conclusion that such an action

would not be “on recommendation” of the JTC.

4

with the Constitution. See People v McLeod, 407 Mich 632,

657; 288 NW2d 909 (1980). Thus, the court rule’s provision

that we may “modify” the JTC’s recommendations can only mean

that this Court may modify them as long as it stays within the

recommendations. It cannot mean that this Court may “modify”

a recommendation to do something that the JTC has not

recommended in the first place. Doing so is not modifying a

recommendation for action, but is taking a greater action

despite the recommendation. Such a meaning and the actions

pursuant to it, conflict with the constitutional requirement

that this Court can only act “on recommendation” of the JTC.2

The majority seems to understand me to first

“deconstruct” and “torture” the term “modify,” and then urge

2

Notably, the majority cites a definition of “modify”

that allows it to “alter” the recommendation, and asserts that

its authority to increase discipline is “clear.” Slip op at

12-13. Even aside from the constitutional problems with the

majority position, the Court’s understanding of the term

“modify” is not so “clear.” Rather, “modify” is defined to

mean to alter something by making it less extreme, severe, or

strong. For example, The American Heritage Dictionary (2d

College ed), p 806-807, defines “modify” to mean:

1. To change in form or character; alter. 2.

To make less extreme, severe, or strong. 3. . . .

To qualify or limit the meaning of. . . 4. . . .

To change (a vowel) by umlaut . . . To be or become

modified. [Emphasis added.]

Similarly, Webster’s New International Dictionary of the

English Language (2d ed, unabridged), p 1577, indicates that

“modify” means to change by lessening:

1. To limit; also, to mitigate, assuage, Obs.

2. To reduce in extent or degree; to moderate;

qualify; lower; as, to modify heat, pain,

punishment. (He modifies his first severe decree.

Dryden.) 3. To differentiate into, or diversify

by, different forms, as light, sound, passion; –

now merged in sense 4. 4. To change somewhat the

form or qualities of; to alter somewhat; as, to

modify the terms of a contract. 5. Gram. To

limit or restrict the meaning of; to qualify. 6.

Philol. To change by umlaut. 7. Philos. To

determine the, or a particular, mode of. 8. Scots

Law. To award a decree as something to be done or

paid. –, Intrans.: To undergo or make a

modification; change. [Emphasis added.]

The majority is correct that these dictionaries include the

definitions they choose. See slip op at 12, n 9.

Nevertheless, I offer these definitions of “modify” to

illustrate the different understandings of the term, in

contrast with the majority’s convenient citation of only the

definition that supports its conclusion. With these different

understandings of “modify,” I can hardly agree that the

majority conclusion is “clear.” See slip op at 13.

5

that the constitutional language “on recommendation”

conditions this Court’s power in judicial discipline cases.

See slip op at 22. This understanding is quite backward. As

explained above, the “on recommendation” language from art 6,

§ 30(2) limits this Court’s power. Because of that limit, we

must interpret the term “modify” consistent with the

constitution, which means interpreting it to mean that this

Court cannot exceed the JTC recommendations in imposing

discipline. If interpreting a term in the court rules

consistent with the constitution is a “tortured” reading of

the term, then this Court must be the Torquemada of text,

because we interpret such terms as consistent with the

constitution as frequently as necessary because it is our

duty. See McLeod, supra at 657; see also Singer, 2A Statutes

& Statutory Construction (6th ed), § 45.11, pp 70-71. If

adhering to this canon of construction is torturing a word,

then we all must be prepared to occasionally inflict forty

lashes.

Beyond this, I find perplexing the majority’s other

pontifications on restricting the term “modify” to conform to

the constitutional requirements. See slip op at 13, n 10.

The majority sees no indication that the term “modify” only

allows the Court to operate within the JTC’s recommendations,

but that indication is the constitution, which restricts this

Court to the JTC recommendations. Further, the majority

suggests that, absent the expansive understanding of “modify,”

which is only possible once the constitutional limitation that

this Court may act only on the JTC’s recommendation is

discarded, this Court would be unable to review JTC decisions,

and would not operate under the “rule of law.” For thirty­

three years, however, this Court has successfully reviewed JTC

actions, and has issued written opinions and judgments in

accord with its review without exercising the power to sua

sponte increase the discipline imposed on respondent judges.

During that time, rather than act in the first instance, if

our review of JTC decisions had left us dissatisfied, we

indicated that the proposed discipline was inappropriate and

6

remanded such decisions to the JTC for further consideration.

See, e.g., In re Griffin; In re Lawrence, 419 Mich 1212

(1984). Our practice of conforming to the constitutional

language and remanding to the JTC in no way hindered our

ability to review JTC decisions. In carrying out our review,

we simply gave the JTC an opportunity to come to a

satisfactory decision before this Court reviewed the matter

again. Because this Court’s longstanding practice fully

effectuated its duty to review JTC decisions, the majority’s

apparent conclusion that for the past thirty-three years, this

Court and the JTC have been operating outside of the rule of

law is at best hyperbole, and disrespects this Court itself.

Overstated as well are the majority’s protestations that

my position is contrary to the central organizing principle of

constitutional government. The majority asserts that under my

view, the JTC is not accountable to any elected body, and that

the JTC, therefore, could act inappropriately and no elected

body could do a thing about it. See slip op at 21-22. These

assertions are simply not true. Under my view, the JTC

remains accountable to this Court, which is in turn

accountable to the people of Michigan. JTC recommendations

must be approved by this Court, and if we think the

recommended discipline is not sufficient, we can direct the

JTC to consider the matter further. Thus, if the JTC acts

inappropriately, we can do a thing about it, the same thing we

have done for years. For those years, and under the

constitutional condition that our actions must be “on

recommendation” of the JTC, accountability has not been a

problem, and continuing as we have been is in no way a threat

to our constitutional order.3

Thus, I cannot agree that this Court may impose greater

discipline on respondent than the JTC recommended because the

constitution only allows this Court to take those actions that

3

I find it ironic indeed that the majority invokes the

constitutionally safeguarded referendum power as a tool of

electoral accountability, yet in MUCC v Secretary of State,

464 Mich ___ ; ___ NW2d ___ (2001), it subverts the

accountability provided by that power.

7

the JTC has recommended. Rather than imposing a harsher

sanction itself, if the Court believes that the JTC’s

recommended discipline is insufficient, it should remand the

case to the JTC to formulate a more severe sanction, as we

have done in the past. In the instant case, though, such a

remand would be odd, because respondent had agreed to accept

the JTC’s recommendation, and did not petition this Court to

modify that recommendation. Cases like the instant case

illustrate that the majority’s misreading of the constitution

will cause unfortunate consequences in judicial discipline

proceedings.

B. THE NEGATIVE CONSEQUENCES OF SUA SPONTE INCREASING DISCIPLINE

By departing from the constitutional restriction that

this Court must act only on recommendation by the JTC, the

decision in this case will set in motion unfortunate

consequences in judicial discipline cases. It is important in

this case that respondent has not petitioned this Court to

modify the JTC’s recommended discipline. Rather, she

indicated her willingness to accept the thirty-day suspension

the JTC recommended. In fact, respondent only became

“adverse” to the JTC in this Court when this Court declined to

adopt the recommendation and ordered the parties to argue

whether the thirty-day suspension was appropriate, inherently

ordering them to address this Court’s authority to sua sponte

increase discipline beyond the JTC’s recommendation. See 463

Mich 1201 (2000). Thus, the dispute over how this Court may

“modify” the JTC’s recommendations comes not at respondent’s

urging, and not at the JTC’s either, which recommended the

thirty-day suspension, but only upon the majority of this

Court’s own interest in deciding a question that the parties

had not actually presented.

In any event, previously, when a judge consented to the

JTC’s recommended discipline and did not petition this Court

to modify the JTC’s recommendation, this Court has entered the

recommended discipline. See, e.g., In re Waterman, 461 Mich

1207 (1999); In re Milhouse, 461 Mich 1279 (2000). However,

after this decision, respondent judges would be well advised

8

to consent to nothing and run the entire gauntlet of available

proceedings because whatever the discipline recommended by the

JTC, this Court is lurking at the end of the line to increase

that discipline if it so chooses. A respondent judge’s

consent, then, would be futile, as this Court may turn a

recommended censure into a suspension, or a suspension into

removal, regardless of the respondent judge’s willingness to

acknowledge an ethical breach and submit to the discipline the

expert body, the JTC, has recommended.

Instead of relying on the JTC’s expertise, though, the

majority has decided that this Court would do better to take

these matters into its own hands. The benefits of a

negotiated and relatively amicable resolution between the JTC

and the respondent judge, avoiding the hearings and attendant

publicity that contested allegations entail, and thus avoiding

unnecessarily promoting the appearance of impropriety guarded

against by Canon 2A of the Code of Judicial Conduct, are lost

when judges must contest every case or be subject to a

sanction that, before this Court issues the final word in a

discipline case, is unforeseen. Also lost are the benefits of

a judge acknowledging before the JTC and the public that he

has done wrong and voluntarily is taking steps to correct the

problem. Instead, the new practice of increasing discipline

beyond the JTC recommendations encourages respondent judges to

fight alleged misconduct to the bitter end because the final

sanction that might be imposed in the end would be unknown

until this Court imposed it, when it would be too late for a

respondent judge to have any input or review of that

sanction.4 Even if the Court’s decision did not contravene

the constitution, I would not be able to join a decision that

encourages such practices.

4

The majority discusses respondent’s notice that she

faced an increase in discipline, see slip op at 25-26, but

nevertheless both she, as well as future respondent judges,

would not know, beyond the possibility of removal, what the

upper limit of their discipline will be until it is upon them.

In curious contrast, a convicted felon is at least informed of

the upper limit of the possible sentence for his crime.

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 C. THE RUNCO DISSENT

Oscar Wilde once wrote that “[c]onsistency is the last

refuge of the unimaginative.”5 If Wilde was correct, then the

majority is apparently attempting to flatter me by

complimenting my imaginativeness when it asserts that my

dissent from In re Runco, 463 Mich 517; 620 NW2d 844 (2001),

is not consistent with my view in the instant dissent.

However, I must decline this compliment because my Runco

dissent is not inconsistent with my present position, as the

majority claims.

In Runco, this Court entered the discipline recommended

by the JTC. I did not agree with the recommendation, thinking

it was insufficient and preferring the JTC minority position.

See id. at 524. As a constitutional matter, before my

preferred discipline could have been imposed, the appropriate

action would have been for the Court to have remanded to the

JTC for further consideration, as we have done in the past.

See, e.g., Griffin, supra. However, because six members of

this Court did not agree with me, the Court adopted the

recommendation and the case was resolved. The final decision

was made, and no remand was considered. Thus, because this

Court was unanimous in concluding that respondent Runco

deserved some level of discipline, and because the case was

going to be resolved, my dissent simply stated the discipline

that I believed would have been appropriate for the JTC to

recommend. For me to have stated that I would have remanded

would have been futile; instead, I went on record with my

substantive position. My Runco dissent, then, is consistent

with the instant dissent, and I am not so imaginative as the

majority seems to believe.

Quite imaginative, however, is the majority’s idea that

my voting habits are relevant to our disagreement over the

meaning of art 6, § 30(2). Though the majority and I may

dispute the meaning of that constitutional provision, as

5

The Relation of Dress to Art, quoted in Flesch, ed,

The New Book of Unusual Quotations (New York: Harper & Row,

1966), p 62.

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explained, my Runco dissent has no effect on this case, so to

suggest that my voting habits are hypocritical advances

nothing.

II

For the reasons stated, I respectfully dissent from the

majority opinion. By misreading the constitution, the

majority transforms our judicial discipline system into a

system that encourages members of the state judiciary to

contest allegations of misconduct and leaves judges in the

precarious position of not knowing the upper limit of their

potential discipline before that discipline becomes final and

irrevocable, except that they may be removed from the bench.

I do not believe that the great mass of the people who

ratified the constitutional language creating our judicial

discipline system intended the system to so operate. Rather,

the Michigan Constitution provides for a system that

encourages judges to acknowledge and resolve their ethical

mistakes. Also, our system allows those judges that do

contest their alleged misconduct to arrive at this Court,

before it makes a final decision, knowing that the harshest

discipline they face is the discipline recommended by the JTC,

and knowing that if the recommendation does not suit this

Court, it will remand the case to allow the JTC and the

respondent judge an opportunity to reach an alternate

solution, or at least to allow the respondent judge to know

what he faces before this Court makes a final decision. I

would remain true to this constitutional design, and therefore

I would either accept the JTC’s recommended discipline or

reject the recommendation and remand the case to the JTC for

further consideration.

KELLY , J., concurred with CAVANAGH , J.

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