In the Matter of Laster

Per Curiam.

The Judicial Tenure Commission (hereinafter the Commission) has recommended that this Court, pursuant to its constitutional authority,1 publicly reprimand the Honorable Clar*455ence Laster, Detroit Recorder’s Court Judge. Pursuant to GCR 1963, 932.24, Judge Laster, the respondent, has petitioned this Court to reject the recommendation of the Commission claiming that:

1. A de novo review of the entire record does not support the Commission’s recommendation of a reprimand.

2. He acted in "good faith” at all times as a recorder’s court judge and "good faith” stands as an absolute defense to any allegation of judicial misconduct.

3. The existence of appellate review to remedy a judge’s conduct divests the Commission of its jurisdiction to review that same conduct for the existence of judicial misconduct.

We have reviewed the entire record de novo2 and conclude that the conduct attributed to Judge Laster, and found by the Commission, is established. Furthermore, we do not find that either Judge Laster’s "good faith” intentions or the existence of an appellate avenue for review of Judge Laster’s conduct negates the Commission’s unanimous conclusion that he should be reprimanded.

I. Facts

There is no dispute regarding the essential facts in this case. Only the conclusion to be drawn from those facts is disputed.

Beginning in December, 1973, the respondent entered a series of 58 orders directing payment to bail bondsman Charles Goldfarb of amounts totaling $35,640 in bond money previously forfeited and paid to Wayne County. In all 58 cases in *456which the respondent ordered forfeitures set aside and penalties remitted, the bond had originally been forfeited by another recorder’s court judge. All of the orders were on photocopied forms and were based upon photocopied form petitions with only the names, dates and amounts written in individually.

Most of the remissions took place on Sunday, but only on those Sundays Judge Laster was sitting as Sunday judge. No notices of any of the petitions of remission were served on the prosecuting attorney or corporation counsel for Wayne County. The respondent acted on petitions in open court, but no stenographic records were made of these proceedings. In two or three instances the judge who had ordered the bond forfeiture had denied a previous motion for refund. No judge of recorder’s court, other than the respondent and suspended Judge Del Rio,3 repeatedly ordered refunds on forfeited bonds that were more than four years old.

Judge Laster testified that, before acting on the bond remissions in question, he read the statute on bond remission4 and discussed the matter with two former presiding judges of recorder’s court, the court’s judicial assistant and a member of the Supreme Court’s staff. The respondent also testified that he did not believe he was usurping the power of other judges in granting such remissions. Evidently, the practice in recorder’s court concerning bond remissions, as distinguished from other bond procedures, was shrouded in uncertainty.

*457Respondent testified that the late Chief Judge Murphy told him that he was empowered to remit forfeitures. He also testified- that the late Chief Judge Leonard had even considered proposing a court rule to clarify matters. The judicial assistant apparently recognized that confusion existed, and still exists, concerning these procedures.

The respondent instructed that copies of the remission orders be given by the Goldfarb Bonding Agency to the prosecuting attorney upon disposition. It is unclear whether copies of the orders were ever delivered to the prosecuting attorney’s office. No member of the prosecuting attorney’s staff ever requested a rehearing in the cases involved in these proceedings. It was the view of the respondent that bond remission was a ministerial action, involving judicial discretion, and as such given no attention by the prosecuting attorney. Respondent testified that, as a prosecuting attorney for 17 years, he never was consulted by a recorder’s court judge on bond remissions. Thus, he believed the absence of prior notice immaterial.

The bondsman, Charles Goldfarb, was a longtime acquaintance of the respondent. There is no evidence of record that the respondent was motivated by a scheme to promote the interests of the Goldfarb Bonding Agency. The examiner also acknowledges that there is no evidence of record5 which shows any personal enrichment of Judge Laster. Judge Laster testified that he was not a social friend of Mr. Goldfarb, and he never solicited Mr. Goldfarb for campaign contributions. Judge Laster did admit that Mr. Goldfarb "judge shopped” him in order to obtain the remissions.

*458It appears, however, that no judges other than the respondent and Judge Del Rio entered multiple refund orders on a group or wholesale basis. Other judges remitted bond payments; certain judges entered more such orders than others. But these judges almost uniformly remitted only those bonds previously forfeited by them or their predecessors in office. The total dollar figure on bonds remitted by Judge Laster was slightly less than twice the total of any judge other than Judge Del Rio.6 *8

A formal complaint in this matter was filed with the Judicial Tenure Commission on January 12, 1977. On February 8, 1977, this Court denied the Commission’s petition for interim suspension and the respondent’s motion to dismiss. A master, Judge William Weipert, Jr., of the 38th Judicial Circuit, was appointed. The master conducted a prehearing conference and ordered the formal hearing, which took place on April 25 and 26, 1977. The master filed his report with the Commission on August 18, 1977. He concluded that the respondent should not be suspended and the complaint should be dismissed. On September 30, 1977, the Commission adopted the findings of fact made by the master. The Commission agreed there was no evidence of criminality, but nonetheless found judicial misconduct from facts which gave the appearance of impropriety, and recommended a public reprimand.

II. Issues

The respondent initially claims that a de novo *459review of the entire record does not support the Commission’s recommendation of a reprimand. We cannot agree.

Canon 2 of the Code of Judicial Conduct7 provides:

"Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. He must expect to be the subject of constant public scrutiny. He must therefore accept restrictions on his conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.” (Emphasis supplied.)

Pursuant to Const 1963, art 6, § 30(2), this Court adopted GCR 1963, 932.4, which provides:

".4 Standards of Judicial Conduct.
"(a) A judge shall be personally responsible for his own behavior and for the proper conduct and administration of the court or tribunal in which he presides.
"(b) A judge shall be deemed guilty of misconduct in office if:
"(iv) His conduct is clearly prejudicial to the administration of justice.
"(d) Conduct in violation of the code of judicial conduct or code of professional responsibility and canons, whether the conduct complained of occurred before or after the respondent became a judge or was or was not connected with his judicial office, may constitute mis*460conduct in office or conduct that is clearly prejudicial to the administration of justice or other cause delineated in Const 1963, art 6, § 30. The question in every case is whether the conduct complained of constitutes misconduct in office or conduct that is clearly prejudicial to the administration of justice or there is other cause delineated in Const 1963, art 6, § 30, not whether a particular canon or disciplinary rule has been violated. All the circumstances are to be considered in deciding whether action by the commission is warranted.”

We conclude that the respondent persisted in a course of action which gave the "appearance of impropriety” and was thus "clearly prejudicial to the administration of justice”.

Several factors specifically give rise to this "appearance of impropriety”:

1. the ex parte discussion with Goldfarb and the agreement to hear motions wherein Goldfarb, a potential litigant, was seeking the return of a large sum of money from the county treasury;

2. the fact that Goldfarb began sending wholesale groups of petitions to the respondent;

3. the fact that, with rare exception, no judges other than Judge Laster and suspended Judge Del Rio remitted bonds which were more than three years old while 90 percent of the Laster remissions were older than three years;

4. the fact that almost all the bonds remitted by Judge Laster were originally forfeited by another judge or that judge’s predecessor;

5. the remissions on the old bonds were accomplished without the prior knowledge of the prosecutor, corporation counsel or court clerk; and

6. the fact that the respondent did not assess costs against Goldfarb in any of the 58 cases, but instead merely accepted Goldfarb’s blanket statement that there were none.

*461Judge Laster’s activities give the appearance of impropriety in that they "appear” to have involved favoritism and partiality. Regardless of his motivations, respondent created an atmosphere in which Goldfarb could continue to bring to him old bonds for remission and thus effectively by-pass the judges who originally forfeited the bonds. This ongoing pattern of conduct also gives rise to the appearance of "cronyism” and "judge shopping”.

This Court, as well as the Commission, acknowledges many of the mitigating factors which the respondent presents. The Commission’s recommendation took into account all the mitigating factors, including "good faith”. Nevertheless, we agree that these factors do not counterbalance the respondent’s persistent abandonment of statutory procedures, court rules8 and simple fair play.

The respondent next claims, in a series of interrelated issues, that he acted in "good faith” at all times during these bond remission proceedings and his good faith stands as an absolute defense to any allegation of judicial misconduct. Again, we cannot agree.

There is no doubt that "good faith” should be considered as a mitigating factor to acts of misconduct but not as an affirmative defense to charges of misconduct. See, for example, Spruance v Commission on Judicial Qualifications, 13 Cal 3d 778; 119 Cal Rptr 841; 532 P2d 1209 (1975). The Commission has duly weighed the mitigating factors in recommending a public reprimand rather than a more severe penalty. We agree with the Commission’s recommendation in this matter.

Finally, the respondent asserts that the existence of appellate review to remedy a judge’s *462conduct divests the Commission of its jurisdiction to review that same conduct for the existence of judicial misconduct. We do not agree. Judicial conduct creating the need for disciplinary action can grow from the same root as judicial conduct creating potential appellate review, but one does not necessarily exclude the other. One path seeks to correct past prejudice to a particular party; the other seeks to prevent potential prejudice to future litigants and the judiciary in general. See In re Judges of Cedar Rapids Municipal Court, 256 Iowa 1135; 130 NW2d 553 (1964).

III. Conclusion

This Court has cited In re Greenberg, 442 Pa 411, 416; 280 A2d 370 (1971), and Tamm, Are Courts Going the Way of the Dinosaur?, 57 ABA J 228 (March, 1971), in two recent opinions concerning judicial misconduct:

"For generations before and since it has been taught that a judge must possess the confidence of the community; that he must not only be independent and honest, but, equally important, believed by all men to be independent and honest. A cloud of witnesses testify that justice must not only be done, it must be seen to be done/ Without the appearance as well as the fact of justice, respect for the law vanishes in a democracy.” (Emphasis added.)

See In the Matter of Del Rio, 400 Mich 665, 725; 256 NW2d 727 (1977), and In the Matter of Bennett, 403 Mich 178, 198; 267 NW2d 914 (1978).

We believe Judge Laster’s conduct in these bond remission proceedings has fallen short of this standard. His conduct in these matters has displayed, at the very least, an appearance of impropriety. *463An image of favoritism, cronyism and judge shopping is readily discerned. A strong, independent and honest judiciary cannot allow such an image to exist.

Therefore, Judge Laster is forthwith reprimanded for his conduct.

Coleman, Fitzgerald, and Blair Moody, Jr., JJ., concurred.

Const 1963, art 6, § 30(2).

In the Matter of Del Rio, 400 Mich 665; 256 NW2d 727 (1977); In the Matter of Mikesell, 396 Mich 517; 243 NW2d 86 (1976); In re Somers, 384 Mich 320; 182 NW2d 341 (1971).

Judge Del Rio was suspended from the recorder’s court bench for five years. The misconduct involving Judge Del Rio was much more serious and extensive than that of Judge Laster. However, it also included the clandestine remission of forfeited bail bonds. See In the Matter of Del Rio, supra, 713.

MCL 765.15; MSA 28.902.

If any such evidence were present, the penalty imposed would be much harsher. Today’s action is only premised upon the "evidence of record”.

From December, 1973, to September, 1976, Judge Laster remitted 65 bonds previously forfeited. Judge Del Rio remitted 44 bonds. No other recorder’s court judge remitted more than 11 bonds during this same period.

Canons of Judicial Ethics (applicable prior to October 1, 1974):

"Judicial Canon 4. Avoidance of Impropriety.

“A judge’s official conduct should be free from impropriety and the appearance of impropriety; he should avoid infractions of law; and his personal behavior, not only upon the bench and in the performance of judicial duties, but also in his everyday life, should be beyond reproach.”

See, inter alia, MCL 726.2; MSA 27.3552, MCL 765.15; MSA 28.902, GCR 1963, 772.4, and Recorder’s Court Rule 18.