Eighteen months after Ottawa County District Judge Kenneth Post jailed a young criminal defense attorney for persistently asserting his client’s Fifth and Sixth Amendment rights, the Michigan Supreme Court found that Judge Post’s conduct breached numerous standards in the Code of Judicial Conduct and imposed a 30-day suspension without pay. The order is here.
Among the actions of the Michigan Supreme Court on February 8, 2013, the Court ordered Wayne County Circuit Court Judge Wade H. McCree immediately suspended without pay pending outcome of sealed disciplinary proceedings.
The Court also granted an application for leave dealing with issues related to forfeiture of bail bonds. In re Forfeiture of Bail Bond (People v. Gaston & You Walk Bail Bond Agency) presents the Court with the issues of: (1) whether a court’s failure to comply with the 7-day notice provision of MCL 765.28 bars forfeiture of bond posted by a surety; and (2) whether In re Forfeiture of Bail Bond, 276 Mich. App. 482 (2007), holding that the 7-day notice provision is discretionary rather than mandatory, was correctly decided.
On the final day of the 2011 term, the Michigan Supreme Court removed Inkster district court judge Sylvia James from office for misconduct including violation of Michigan statutes criminalizing embezzlement, fraud, and forgery. The Court’s In re James decision adopted the findings of the Judicial Tenure Commission that the judge misappropriated public funds, some of which were intended for victims of crime, and spent this money on self-promoting advertisements, travel, embroidered shirts bearing the her name, and local charities of her choice. The Court also concluded that the judge had knowingly rehired a magistrate who had been dismissed by the State Court Administrative Office, hired a relative in violation of the Michigan Supreme Court’s antinepotism policy, and repeatedly lied under oath. The Court concluded that the judge was unfit for judicial office and removed her from office for the remainder of her term. Justices Cavanagh and Hathaway concurred in the result.
Justice Markman and Chief Justice Young joined the majority opinion, but dissented in part because they believed that James should be barred from judicial office for the next six years if she is elected to the same district court judgeship in November.
The Court split 4-3 in deciding that a state statute permitting propensity evidence against defendants accused of sex crimes against minors is valid, and thus trumps MRE 404(b)’s prior bad acts prohibition.
The decision affirmed the Court of Appeals in People v. Watkins and reversed People v. Pullen. MCL 768.27a(1) permits introduction of propensity evidence relating to prior bad acts against minors in cases where the defendant is accused of one of a list of sex offenses against a minor. The Court held, in Justice Zahra’s majority opinion, that this statute trumps MRE 404(b), which would otherwise prohibit such evidence. To do so, the Court further held that this law doesn’t impermissibly intrude on its court-rule-making prerogative in the Michigan Constitution. The majority, joined by Justices Young, Markman, and Mary Beth Kelly, found that MCL 768.27a(1) reflected a substantive policy decision to protect children, which is a valid power of the Legislature. Conversely, the majority held that the statute is not an invalid usurpation of the court’s ability to administer the conduct of trials and referee evidence admissibility.
Finally, the Court confirmed that evidence admitted under this statute remains subject to the prejudicial effect v. probative value test in MRE 403. However, because of the statute, the propensity factor actually weighs in favor of probative value, not prejudicial effect, under the MRE 403 test. In footnote 2, the Court noted that with the conclusion that MRE 403 still applies, it avoided the question of whether the statute would be invalid, as depriving defendants of due-process rights to a fair trial. (However, this still seems to leave open individual, as-applied challenges to the statute.)
The dissent, authored by Justice Marilyn Kelly and joined by Justices Cavanagh and Hathaway, argued that MCL 768.27a(1) impermissibly intruded upon the Court’s rule-making providence, and therefore could not be upheld.
The Michigan Supreme Court also granted two applications in criminal cases, both examining assessment of 50 points for offense variable 7, MCL 777.37(1)(a), for acts beyond those necessary to commit the offense.
In Michigan, a judge who fails to disclose ex parte communications or condemn testimony known to be perjured commits a misdemeanor, not a felony. The Michigan Attorney General (AG) charged Judge Waterstone of the Wayne County Circuit Court with four counts of felony misconduct in office, three of which the circuit court quashed. Because these charges were brought under the general common law felony statute, MCL § 750.505, instead of the statute declaring a public officer’s willful neglect of duty a misdemeanor, MCL § 750.478, the Court of Appeals in People v. Waterstone dismissed all charges against Judge Waterstone without prejudice. The court held that the plain language of the common law felony statute precluded the AG from bringing the charges under the common law felony statute because the conduct was prohibited by the misdemeanor statute. Judge Talbot dissented, contending that the charges brought against Judge Waterstone constituted separate and distinct offenses from the willful neglect of duty encompassed by the misdemeanor statute.
The Michigan Supreme Court appointed Honorable Ann Mattson as Master to hear Formal Complaint No. 88 in In re Hon. Sylvia A. James, No. 143942, before the Judicial Tenure Commission (“JTC”). In that same case, the Court granted the petition for interim suspension with pay, and ordered the Master and the JTC to coordinate their schedules to ensure that the JTC recommendation of action, if any, be submitted within five months of the date of the order. Justice Markman dissented, in part, stating that given the potential harm to the integrity of the judiciary and the public trust in the judicial disciplinary process, he would order the respondent suspended without salary, and that her salary should be held in escrow pending resolution of the charges.
On December 6, 2011, the Detroit International Bridge Company (“DIBC”) lost two battles in its war for a second span to the Ambassador Bridge across the Detroit River and to maintain exclusive control over all international bridge crossings in the area. The instant appeals concerned the Gateway Project, a cooperative project between Michigan Department of Transportation (“MDOT”) and DIBC designed to improve direct vehicle access to the Ambassador Bridge and to supposedly “[a]ccomodate a potential future second span.” After MDOT sued DIBC to enforce the Gateway Contract that governs the project, DIBC brought related claims against MDOT in the Court of Claims and tried to intervene in condemnation proceedings instituted by MDOT pursuant to the Gateway Contract. In one appeal, DIBC v MDOT, No. 298276, the Court of Appeals affirmed the grant of summary disposition to MDOT on all 18 counts in DIBC’s Court of Claims action. In the other appeal, MDOT v CBS Outdoor, Inc., No. 297016, the Court affirmed the denial of intervention in the condemnation proceedings.
On November 30, 2011, the Justices of the Michigan Supreme Court issued statements denying Judge Sylvia James’ motion to disqualify all seven Justices in a Judicial Tenure Commission (JTC) matter, In re Hon. Sylvia A. James, 22nd District Court, No. 143942. On April 13, 2011, the Michigan Supreme Court, exercising its powers of superintending control, arising under Const 1963, art 6, § 4, took administrative control of the 22nd District Court, and placed Judge James on a paid administrative leave. As the Chief Justice’s statement responding to this motion explained, the Court ordered administrative leave in service of the Court’s responsibility “to ensure that the courts of this state are functioning properly, within the law, and according to the Court’s rules.” Judge James was placed on administrative leave following an audit conducted by the Supreme Court Administrative Office (SCAO) that had “revealed irregularities in the district court’s financial records and practices.”
The Court also denied one application for leave to appeal.
On June 21, 2011, the Michigan Supreme Court denied one prisoner’s request to waive filing fees and denied a motion to disqualify Justice Mary Beth Kelly in Grievance Administrator v. MacDonald, 142729.
On March 24, 2011, the Michigan Court of Appeals published its opinion in AFSCME Council 25 v. County of Wayne, No. 298655. The court held that the Third Judicial Circuit Court of Michigan (the “Third Circuit”) has “exclusive authority” over the assignment of deputy circuit-court clerks to its judges’ courtrooms as part of the “judicial branch’s inherent constitutional authority,” and Wayne County’s collective-bargaining agreement with its employees could not supersede the Third Circuit’s control over its clerks. Read more »
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