In Re Brown

                                                                        Michigan Supreme Court
                                                                        Lansing, Michigan 48909
_____________________________________________________________________________________________
                                                                C hief Justice                   Justices
                                                                Maura D. Cor rigan	              Michael F. Cavanagh




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

____________________________________________________________________________________________________________________________

                                                                                      FILED MAY 30, 2001





                In re HON. CHRISTOPHER BROWN (AFTER REMAND)

                Judge of the Fiftieth District Court,

                Pontiac, Michigan.                                                               No. 111840



                _________________________________

                PER CURIAM 


                        This judicial disciplinary matter is before this Court


                after remand to the Judicial Tenure Commission (JTC) to


                determine whether statements made by respondent following an


                automobile accident resulted in judicial misconduct that was


                clearly prejudicial to the administration of justice.                                       In In


                re Brown, 461 Mich 1291 (2000), this Court set forth several


                factors that were among the criteria to be used in evaluating


                judicial discipline cases.                      We then remanded the present

matter to the JTC for an application of the suggested factors


to the facts of this case.           The JTC, in a June 23, 2000


supplemental      decision    and    recommendation,       found   that


respondent was “attempting to use the prestige of [his] office


to   gain   a   personal   advantage”    and,    thus,   recommended   a


sanction of suspension from the discharge of all judicial and


administrative duties without pay for a period of fifteen


days.     Upon review, we hereby adopt the JTC’s recommended


sanction of suspension from the discharge of all judicial and


administrative duties without pay for a period of fifteen


days.


                                    I


        These proceedings arise out of statements made by 50th


District    Court   Judge    Christopher    C.    Brown,   respondent,


following an automobile accident involving respondent and


another driver.     The JTC filed a complaint and an evidentiary


hearing was held. Following the hearing, the master concluded


in a report that respondent did not abuse his office.               The


JTC’s examiner then filed written objections to the report


with the JTC.     On review, the JTC made the following findings


of fact:


        (1) Respondent, at all times hereinafter mentioned, was


a Judge of the 50th District Court in the City of Pontiac,


County of Oakland, State of Michigan.



                                    2

       (2) Respondent was involved in an automobile accident


with Sue Lambouris on April 26, 1996.


       (3) The Pontiac Police Department was notified of the


accident, and that officers Darryl Cosby and Craig Pesco


responded to the location of the accident.


       (4) Respondent knew police officer Darryl Cosby.


       (5)   Respondent    told    the   police   officers    that   Sue


Lambouris was speeding.      Specifically, Respondent stated that


Mrs. Lambouris was “doing 85 miles per hour.”


       (6) Respondent requested that Mrs. Lambouris’ name be


“run on L.E.I.N. [Law Enforcement Information Network] and


ticketed.”


       On the basis of its findings of fact, which we adopt for


purposes of this per curiam opinion, the JTC determined that


respondent was “attempting to use the prestige of [his] office


to gain a personal advantage” and that such conduct was


“clearly prejudicial” to the administration of justice in


violation of the Code of Judicial Conduct, Canons 1, 2A, 2B


and 2C. The JTC then recommended that respondent be suspended


from the discharge of all judicial and administrative duties


without pay for fifteen days.


       Upon review of the JTC’s decision and recommendation,


this    Court   remanded    this    matter   to   the   JTC   for    the


“articulation of standards of judicial discipline, and for the



                                    3

application of those standards to the instant case.”              In re


Brown, supra.       As we stated in that case, the development of


standards by the JTC will better enable the JTC to respond to


“equivalent cases in an equivalent manner.”           Furthermore, the


application of standards by the JTC will allow this Court to


more     meaningfully       review        the   JTC’s       disciplinary


recommendations.       In Brown, supra, we articulated several


factors that were among the criteria to be used in evaluating


judicial discipline cases.        The recommended factors are as


follows: 


            (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 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


                                     4

      application of justice on the basis of such

      considerations as race, color, ethnic background,

      gender, or religion are more serious than breaches

      of justice that do not disparage the integrity of

      the system on the basis of a class of citizenship.

      [461 Mich 1292-1293.]


      After        remand,      the   JTC     filed      a   supplemental


recommendation.           In this recommendation, the JTC determined


that respondent was “attempting to use the prestige of [his]


office to gain a personal advantage.”              Consequently, the JTC


again recommended that this Court suspend respondent from the


discharge of all judicial and administrative duties for a


period of fifteen days.          The JTC, however, did not expressly


apply the recommended factors as set forth in In re Brown for


the   reason       that   its   membership   had   changed   between   the


original recommendation and the remand.             Therefore, before we


“adopt, reject, or modify” the JTC’s recommended discipline,


we will engage in a brief analysis of the Brown factors as


applied to Judge Brown himself. 


                                      II


      Upon review, we conclude that factors 1, 2, 4, and 5 are


relevant to this case. In particular, factors 1 and 4 support


the JTC’s recommended discipline of respondent.               Pursuant to


factor 1, we find that respondent’s conduct was part of a


pattern or practice of misconduct rather than an isolated


instance      of     misconduct.      As     the   JTC   stated   in   its


recommendation for discipline, respondent had been admonished


                                      5

by the JTC on four prior occasions for acts of misconduct.1


Additionally,      pursuant   to   factor   4,   respondent’s   conduct


implicated the appearance of impropriety.            The record shows


that respondent knew one of the investigating officers who


arrived at the scene.         This existing relationship, coupled


with       respondent’s   attempted      direction   to   the   officer


concerning the type of investigation that he should conduct


with regard to the other driver, gave rise to an appearance of


impropriety and had the potential to erode the public’s


confidence in the judiciary.2





       1
         Even if the dissent is correct that respondent’s

behavior is not properly characterized as part of a “pattern

or practice” of misconduct, there is nothing at all

inappropriate in the JTC taking into consideration in its

proportionality decisions altogether unrelated instances of

misconduct.

       2
        We do not disagree with the dissent’s characterization

of the rules of conduct with regard to “judge-victims.” Post

at 7. However, unlike the dissent, we believe that

respondent’s conduct went well beyond a mere “report[ing] the

underlying facts involved in the crime.” Post at 4. Rather,

in this case, the respondent directed the officer to take two

very specific actions: (a) run Ms. Lambouris’ name through the

LEIN system, and (b) issue Ms. Lambouris a ticket. Though a

fine line cannot always be drawn in these matters, the

respondent’s direction to the officer, in our judgment, was

not in the nature of a mere call to investigation, it was not

simply a spontaneous expression of anger or pique, and it was

more than a generalized call to the officer to do something

about an unfortunate situation.      Rather, when made to an

officer who was aware of respondent’s judicial status, such

direction, in our opinion, invoked respondent’s judicial

status in an inappropriate manner.


                                    6

      On the other hand, factors 2 and 5 mitigate against


increasing respondent’s sanction. Pursuant to factor 2, it is


important to highlight that the misconduct at issue arose out


of statements made pursuant to an automobile accident.                   The


misconduct did not occur while respondent was on the bench.


Additionally, pursuant to factor 5, the remarks made by


respondent appear to have been made spontaneously and under at


least some stress, with respondent having just been involved


in an automobile accident.         When the police officers arrived,


respondent told the officers that Mrs. Lambouris was speeding


at eighty-five miles an hour. With regard to this remark, the


JTC   found     that   “[r]espondent        knowingly    made   a   false


statement.”     However, pursuant to the circumstances of this


case, this Court concludes that this remark was merely a


speculation concerning the rate of speed of the other driver.


Concerning respondent’s request that the officers search Mrs.


Lambouris’ name in the LEIN system and ticket her, we reach


the   same    conclusion.        Respondent’s   remark    was   merely     a


spontaneous     reaction    in    the     immediate   aftermath     of    an


automobile accident.        After weighing the above factors, and


applying them to the circumstances of this case, we believe


that respondent’s past disciplinary indiscretions, as well as


the appearance of impropriety that resulted from respondent’s


statements to the police officers, one of whom he knew,



                                     7

regarding the type of investigation that the officers should


engage in was sufficient misconduct to warrant the adoption of


the JTC’s recommendation of discipline.             Thus, we hold that


respondent be suspended from the discharge of all judicial and


administrative duties without pay for a period of fifteen


days.


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


issue the judgment order forthwith.


     CAVANAGH ,   WEAVER , KELLY ,   TAYLOR , YOUNG , and   MARKMAN , JJ.,


concurred.





                                     8

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


                          SUPREME COURT





In re HON. CHRISTOPHER BROWN (AFTER REMAND)

Judge of the Fiftieth District Court,

Pontiac, Michigan.                                  No. 111840

_________________________________

CORRIGAN, C.J. (dissenting).


     I respectfully dissent from the majority’s decision to


suspend respondent for fifteen days for certain statements he


made in the aftermath of an automobile accident. I would hold


that respondent’s actions, while certainly not exemplary, did


not constitute judicial misconduct because his conduct was not


clearly prejudicial to the administration of justice.


                                 I


     These proceedings arise from a car accident involving


respondent and another driver in Pontiac.       Pontiac police


officers responded to a call for assistance and investigated.


Respondent told an officer with whom he was acquainted that


the other driver had been traveling at eighty-five miles an


hour.   He then requested that the officer run the other


driver’s name on the Law Enforcement Information Network


(LEIN), and urged the officer to ticket the other driver. The


officer did not, however, issue a ticket.     The owner of the

other car later brought an action in 50th District Court to


recover his insurance deductible.


     The Judicial Tenure Commission (JTC) complaint alleged


misconduct     arising    from    (1)    respondent’s      conduct   at   the


accident scene, (2) respondent’s transfer of the district


court action to another judge, and (3) respondent’s conduct


during   the    hearing   on     the    district   court    lawsuit.      The


complaint also alleged misconduct arising from respondent’s


conduct during an unrelated criminal case and his unrelated


actions in presiding over uncontested and default matters


involving his court officer.


     At the conclusion of an evidentiary hearing, the master


determined that the examiner failed to establish judicial


impropriety and that respondent did not violate the code of


judicial conduct, court rules, or the constitution.                       The


master found that respondent “informed the officers of [the


other driver’s] excessive speed (the testimony varies between


85 and 50 miles per hour) and . . . stated his desire to have


[the other driver] run on a lien [sic] machine and ticketed


. . . .”       The master further found that reason existed to


believe that the other driver had been speeding, although the


evidence did not support respondent’s claim that the car had


been traveling at eighty-five miles an hour.                   The master


characterized respondent’s statement that the other car was



                                        2

traveling “85 miles per hour” as a “hyperbolic exaggeration


and   not    a   deliberate    falsification,    similar     perhaps   to


claiming that ‘she was going like a bat out of Hell.’”                 The


master      rejected   all    the    remaining   allegations    in     the


complaint.


      The JTC affirmed the master’s finding that respondent


made the statements at the accident scene, but rejected the


master’s     conclusion      that   respondent   had   not   abused    the


prestige of his office.             The JTC found that respondent’s


conduct violated Canons 1 and 2(A)-(C) of the Code of Judicial


Conduct.3        It found that respondent’s conduct constituted



      1
       Canon 1 provides in part that               “[a] judge should

participate in establishing, maintaining,          and enforcing, and

should personally observe, high standards          of conduct so that

the integrity and independence of the               judiciary may be

preserved.”


      Canon 2(A)-(C) provides:


           A.   Public confidence in the judiciary is

      eroded by irresponsible or improper conduct by

      judges.   A judge must avoid all impropriety and

      appearance of impropriety. A judge must expect to

      be the subject of constant public scrutiny.       A

      judge must therefore accept restrictions on conduct

      that might be viewed as burdensome by the ordinary

      citizen and should do so freely and willingly.


           B.   A judge should respect and observe the

      law.   At all times, the conduct and manner of a

      judge should promote public confidence in the

      integrity and impartiality of the judiciary.

      Without regard to a person’s race, gender, or other

      protected personal characteristic, a judge should

                                                (continued...)


                                      3

misconduct    under   MCR   9.205(C)(4)   because   it   was   clearly


prejudicial to the administration of justice. The JTC adopted


the master’s findings and conclusions regarding the other


allegations of misconduct.       It recommended that this Court


suspend respondent for fifteen days.


                                 II


     In this case, the JTC recommends discipline solely on the


basis of respondent’s conduct at the accident scene.             Thus,


while the complaint certainly alleged other misconduct, I have


confined my review solely to judicial misconduct arising from


respondent’s statements to the investigating officers because


this Court may discipline a judge only “[o]n recommendation of


the judicial tenure commission.” Const 1963, art 6, § 30; see


In re Mikesell, 396 Mich 517, 524-527; 243 NW2d 86 (1976).            I


conclude that the JTC failed to prove by a preponderance of


the evidence4 that respondent attempted to use the prestige of





(...continued)

     treat every      person   fairly,    with   courtesy      and

     respect.


          C. A judge should not allow family, social,

     or other relationships to influence judicial

     conduct or judgment. A judge should not use the

     prestige of office to advance personal business

     interests or those of others. A judge should not

     appear as a witness in a court proceeding unless

     subpoenaed.

     2
         In re Loyd, 424 Mich 514, 521; 384 NW2d 9 (1986).


                                  4

his office to gain a personal advantage and that his conduct


was clearly prejudicial to the administration of justice.


      In   my   view,       the     determination      whether    respondent’s


conduct was clearly prejudicial to the administration of


justice hinges on respondent’s intent in making statements to


the officers at the accident scene.                    The master found that


respondent was “shaken, excited and emotional” after the


accident.       The       master    further     characterized     respondent’s


statement regarding the speed of the other driver’s car as


“hyperbole.”          I    would    defer      to   those   findings   because,


although this Court reviews the record de novo, In re Loyd,


424 Mich 514, 521; 384 NW2d 9 (1986), we accord deference to


the   master’s    ability          to   observe     witnesses’    demeanor   and


evaluate their credibility.              Id. at 535.        I thus defer to the


master’s    credibility            finding      that   respondent      did   not


intentionally lie to the officer. I am frankly puzzled by the


JTC majority’s finding of an intentional falsehood. They gave


no reason for concluding that the master erred in his contrary


credibility determination.5


      3
       Under MCR 9.221(B), the JTC must make written findings

of fact and conclusions of law along with its recommendations

for action, but may adopt the master’s findings, in whole or

in part, by reference.    In light of the master’s superior

position for purposes of evaluating the credibility of

witnesses, however, it is incumbent on the JTC to explain its

reasons for rejecting a master’s finding that turns on such a

determination.    Moreover, absent a hearing at which the

                                               (continued...)


                                          5

     I further agree with the majority’s characterization of


respondent’s statement at the accident scene as a “spontaneous


speculation” induced by “stress” in the immediate aftermath of


an automobile accident.         I accept and see no clear error in


the finding of the Master that Judge Brown’s statement was


hyperbole.     Further, I accept the master’s finding that Judge


Brown had no insidious motive.


        In light of this conclusion, I would not hold that Judge


Brown    knowingly   and   intentionally        attempted   to   use   the


prestige of his office to gain a personal advantage. I cannot


say with any degree of certainty that he attempted to misuse


the prestige of his office to gain a personal advantage.               His


conduct seems to me equally likely the spontaneous reaction of


a shaken accident victim.


        The   majority   rule   is   that   a    judge-victim    who    is


acquainted with the police officers who are conducting an


investigation may provide a report about the relevant facts,


but cannot recommend any action on the basis of those facts.


Thus, a judge who is a victim of an armed robbery may report


the underlying facts involved in the crime, but may not say,





(...continued)

witnesses actually testify before the JTC, MCR 9.219, I

question whether this Court should reject the master’s finding

in favor of a contrary finding by the JTC.


                                     6

“There’s the robber—arrest that man.”6            The direction to


arrest may demonstrate a misuse of office to advance personal


interests in recovering the judge’s stolen property.


     Next, I cannot join the conclusion that Judge Brown’s


statements at the accident scene were part of a “pattern and


practice” of misconduct on the basis of prior JTC admonitions


against Judge Brown.      Judge Brown’s excited utterances at the


accident scene were unique, isolated events, different in kind


from the events and statements that formed the basis of the


prior JTC admonitions.       I cannot join the conclusion that


Judge Brown’s conduct at the accident scene demonstrates a


pattern and practice of misconduct.


     I would reject the JTC recommendation in this case


because respondent’s conduct at the accident scene was not


clearly prejudicial to the administration of justice.              The


record     does   not   reflect   that   the   other   driver    heard


respondent’s remarks. Nor does it establish that respondent’s


statements    influenced    the   officer’s    decision   to   issue   a


ticket.    That a motorist whose vehicle has been struck in an


accident would request in the immediate aftermath that the


responding officer ticket the driver of the other car is not


unusual.    That a judge, still shaken from the accident, would



     6

       While an armed robbery is a crime, not an accident,

both are startling events likely to trigger in the victim

spontaneous, excited utterances.


                                   7

make       a   similar   request   is   not   prejudicial     to   the


administration of justice.         Moreover, respondent’s comment


requesting a LEIN check does not, under the circumstances of


this case, elevate respondent’s conduct to a level that


clearly prejudices the administration of justice.           The master


found that respondent acted without an insidious motive.


Accordingly, I would decline to impose discipline on the basis


of respondent’s conduct at the scene of the accident.7



       7
      Assuming   that   respondent’s   actions    constituted

misconduct, the misconduct would not warrant a suspension. I

also part company from my colleagues in their application of

the governing principles set out in our prior order to these

facts:


            While we do not purport to substitute our

       judgment for that of the JTC in this regard, some

       of these standards are obvious.     For example,

       everything else being equal:


            (1) misconduct that is part of a pattern or

       practice is more serious than an isolated instance

       of misconduct;


            (2) misconduct on the bench is usual 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

                                               (continued...)


                                   8

                                    III


     I   conclude      that   respondent’s        were    not   clearly


prejudicial    to   the   administration     of   justice.      I   would


therefore     reject   the    JTC    recommendation      to   discipline


respondent.    Accordingly, I dissent.





     7
      (...continued)

     or deliberated;


          (6) misconduct that undermines the ability of

     the justice system to discover the truth of what

     occurred in a legal controversy, or to reach the

     most just result in such a case, is more serious

     than misconduct that merely delays such discovery;


          (7) misconduct that involves the unequal

     application of justice on the basis of such

     considerations as race, color, ethnic background,

     gender, or religion are more serious than breaches

     of justice that do not disparage the integrity of

     the system on the basis of a class of citizenship.

     [461 Mich 1294-1295.]


     Application of these factors to this case suggests the

lightest form of discipline for those members of this Court

who conclude that respondent was engaged in judicial

misconduct—a censure.    Respondent’s acts were spontaneous,

isolated, occurred off the bench, and, at most, gave the

appearance of impropriety.     Respondent’s conduct did not

implicate the actual administration of justice, and did not

affect the ability of the justice system to discover the truth

in a case. Moreover, the alleged misconduct does not involve

the unequal application of justice. Under the circumstances

of this case, a suspension is not appropriate.


                                    9