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.

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 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