A Bicycle Shop On Mackinac Island

Michigan Disciplinary Counsel has appealed an order of a Master that recommended dismissal of a complaint against a judge, contending that the allegations merit a hearing

In December 2022 the Judicial Tenure Commission filed FC 106 charging Hon. Debra Nance with intentionally making false statements under oath about an incident in which she was involved with Hon. Demetria Brue on Mackinac Island in August 2019. In order to file the complaint, the Commission had to determine that there was sufficient evidence of the misconduct charged in FC 106 to hold a public hearing. One aspect of the Commission’s determination was necessarily whether Judge Nance intended to deceive when she made the charged false statements.

The Master recently disagreed with the Commission’s determination and recommended that the Commission summarily dismiss FC 106 without any evidentiary hearing. The Master did so solely on the bases that a) Judge Nance claims that she did not intend to mislead and disciplinary counsel provided no evidence to the contrary, and b) she claims that certain important evidence is not authentic. Disciplinary counsel object to the Master’s recommendation because it rests on fundamental mistakes of fact and law:
• The Master should not have second-guessed the Commission’s determination that there is enough evidence of Judge Nance’s intent to hold a hearing.
• It is improper to summarily dismiss a complaint when intent is at issue.
• There is substantial evidence that Judge Nance did intend to mislead, which the Master improperly disregarded.
• The Master’s recommendation relied on a purported “fact” that is not true and is not in the record, and created an element of the misconduct that does not exist.

Any one of these errors, standing alone, is a compelling reason for the Commission to reject the Master’s recommendation to dismiss.

Background

While on Mackinac Island in August 2019 for a judges conference, Judges Nance and Brue had an interaction with Ira Green, the proprietor of a bike rental business. FC 106 alleges that while Judge Nance watched, Judge Brue argued with Green about the cost of bike rental; Judge Brue grabbed a piece of paper from Green’s hand, then falsely accused Green of having assaulted her; Judge Brue warned Green of the consequences of assaulting an African American judge; and Judge Brue falsely told a police officer that Green had assaulted her.

FC 106 charges that when Judge Nance was interviewed under oath by Commission staff less than a year later about Judge Brue’s interactions with Green and the Mackinac Island police, she falsely denied knowledge of Judge Brue’s misconduct even though she watched as Judge Brue committed it. To buttress her denial, she fabricated claims that Kenneth Hardy, the police officer who first came to the scene, would not even speak with or acknowledge her and Judge Brue. She also fabricated claims that Officer Hardy insultingly told her and Judge Brue to “wait by the curb” of a Mackinac Island street (along with the smell of horse dung) while he reviewed video of the interaction between Judge Brue and Green—a command to which Judge Nance ascribed racist intent. Judge Brue later made her own statements about the incident that were strikingly similar to the falsehoods in Judge Nance’s statements.

Not a trivial matter

In context, the Master’s comment conveyed his impression that the events charged in the complaint were trivial, even though they included abuse of authority and false allegations of assault by Judge Brue. Most tellingly, the Master’s comment conveyed his belief that the incident remained trivial even after Judges Brue and Nance made false statements about it. The Master’s comment appears to indicate a feeling that the Commission never should have filed the complaints in the first place. That sentiment is wholly consistent with the Master’s analysis in his recommendation to dismiss the complaint against Judge Nance and his decisions to stay the proceedings indefinitely and to bar consolidation of the proceedings.

The complaint is linked here. (Mike Frisch)