Tuesday, August 1, 2023
The Michigan Supreme Court imposed discipline but reduced the sanction proposed on a judge
The Judicial Tenure Commission (the JTC) filed a formal complaint against Third Circuit Court Judge Tracy E. Green, alleging that she covered up evidence of child abuse (Count I) and that she made false statements about her knowledge of the abuse (Count II). Respondent admitted she was aware that her son had slapped one of her grandsons, GD, across the face, and she further admitted that she covered the resultant handprint with makeup, claiming that she had done so after her other grandson, RD, had teased GD about the handprint. Respondent denied that the handprint was a bruise. Both grandsons testified that respondent was aware of multiple incidents in which their father’s physical abuse left marks on them and further testified that no teasing had occurred regarding the handprint. In March 2019, respondent testified at a juvenile court hearing as a witness for her son; she denied that she had ever seen bruises on her grandsons’ bodies but admitted to seeing the handprint on GD’s face. Respondent also denied that any of her grandchildren had ever told her that they had been abused. The Michigan Supreme Court appointed retired Judge Betty R. Widgeon as master, and she issued a scheduling order providing for a virtual hearing. Respondent objected to the scheduling order and moved for in-person proceedings. The master denied the motion for in-person proceedings. In October 2021, disciplinary counsel moved the Supreme Court to clarify its position with respect to holding remote judicial disciplinary proceedings, and the Supreme Court denied the motion. Disciplinary counsel then sought leave to amend the formal complaint to add Count III, which alleged that respondent made knowingly false statements to the JTC in her answer to the formal complaint, and the master granted leave to amend the complaint. The master held a public hearing on several days between May 27, 2021 and November 21, 2021; all but two days of hearings and closing arguments were held virtually. The master concluded that respondent committed misconduct in office with respect to Counts I and II but not III. The JTC unanimously accepted and adopted the master’s findings of fact and conclusions of law with respect to Counts I and II. Although the JTC was troubled by the allegations in Count III, it concluded that disciplinary counsel did not satisfy its burden of proving the allegations by a preponderance of the evidence. It therefore adopted the master’s conclusion that there was insufficient evidence that respondent intentionally made false statements to the JTC in her answer. The JTC further concluded that respondent’s misconduct violated MCR 9.104(1), (2), and (3); MCR 9.202(B); Michigan Code of Judicial Conduct Canons 2(A) and 2(B); and Michigan Rules of Professional Conduct Rules 8.4(b) and 8.4(c). The JTC addressed the factors set forth in In re Brown, 461 Mich 1291 (2000), and concluded that the totality of the factors weighed in support of respondent’s removal from office. Respondent petitioned the Supreme Court, requesting that the Court reject the JTC’s recommendation and dismiss the amended complaint against her.
In a per curiam opinion signed by Chief Justice CLEMENT and Justices BERNSTEIN,
CAVANAGH, WELCH, and BOLDEN, the Supreme Court held:
The JTC proved by a preponderance of the evidence that respondent knowingly covered up evidence of child abuse and violated MCR 9.104(1), (2), and (3), and MRPC 8.4(c). The JTC’s finding that respondent lied under oath at the juvenile court proceeding was rejected; however, the JTC sustained its burden of proving that respondent knowingly made false statements about evidence of child abuse in her answer to the JTC’s requests for comment. A six-month suspension without pay, along with a public censure, was imposed after consideration of the JTC’s recommendation, the Brown factors, and similar and dissimilar judicial sanctions that have previously been imposed.
The misconduct that occurred in this case was unique, and similar misconduct has not been addressed in the past. Considering the JTC’s recommendation, the Brown factors, and similar and dissimilar judicial sanctions that have previously been imposed, a six-month suspension without pay was an appropriate sanction in this case. A three-month suspension would have been justified under Count I given that respondent’s misconduct was conduct that occurred before she was on the bench, involved difficult family relationships, and involved respondent’s covering up of evidence rather than participating in the abusive conduct. However, the finding of misconduct under Count II warranted the more severe sanction of a six-month suspension. The JTC’s recommended sanction was modified accordingly.
JTC’s recommendation modified; six-month suspension without pay imposed.
Justices Viviano and Zahra would find misconduct on the third count and impose a greater sanction.
The Supreme Court, as the final arbiter of alleged judicial misconduct in this state, should hold a respondent accountable for all the misconduct contained in the record, even that which is not specifically alleged as a basis for discipline in the JTC’s complaint. It is folly to claim that the JTC deprived respondent of a fair opportunity to mount a defense to lying under oath during a proceeding designed to hold elected judges, not the general public, accountable. Respondent knew that by taking the oath, she was, in fact, required to tell the truth. Because respondent in this case should have been held accountable for perjury, the JTC’s recommended sanction of respondent’s removal from office was appropriate.
Justice Viviano would imposed a twelve-month suspension.
The above quotes are from the court's syllabus and not part of the opinion. (Mike Frisch)