from Michigan Supreme Court records
In an Order dated May 1 the Michigan Supreme Court publicly censured Hudsonville 58th District Court (Ottawa County) Judge Kenneth Post, suspending him for 30 days without pay.
Much of the order consists of two transcripts of a Dec. 2, 2011 arraignment. As reported in the Grand Rapids Legal News for Jan. 13, 2012 and elsewhere, during that arraignment Post cited the defendant’s attorney, Scott Millard, for contempt of court.
An excerpt from the “Official Transcript” (defendant’s name removed) says:
“THE COURT: When they give you a drug test today, are you going to be clean or dirty?
MR. MILLARD: Mr. _____ is going to stand mute to that question.
THE COURT: He’s not going to stand mute. He’s either going to answer the question or I’m going to remand him to jail, because I’m setting bond. And I want to know the answer to the question. Now, the answer to the question is what, sir?
MR. MILLARD: Your Honor, Mr. —
THE COURT: Be quiet, please.”
Later in the proceedings, Millard says, “But, Your Honor, I -- Mr. ______ has a Fifth Amendment right not to make admissions. And, Your Honor, the -- the manner in which this -- this proceeding is being conducted strongly has the -- at least I’m getting the sense that it -- it threatens to tread on that Fifth Amendment right.”
The transcript continues:
“THE COURT: --if you don’t like that, I’m sorry.
MR. MILLARD: Your--Your Honor, he was not on bond.
THE COURT: I don’t give a rat’s tail if he --
MR. MILLARD: He didn’t have a condition of bond --
THE COURT: was or he wasn’t.
MR. MILLARD: that prohibited that.
THE COURT: Counsel, will you be quiet?”
After that, Post held Millard in contempt, sending him to jail.
In Jan. 2012, a grievance was filed with the Judicial Tenure Commission (Formal Complaint 90), and the Supreme Court Order of May 1, 2013, is in response to the Judicial Tenure Commission’s recommendation.
The Order starts out by saying, “On order of the Court, the motion to strike the respondent's acceptance of the recommendation is DENIED. The Judicial Tenure Commission having issued a Decision and Recommendation, and the respondent 58th District Court Judge Kenneth D. Post having not filed a petition to reject or modify the Commission’s Decision and Recommenda\tion, we accept the recommendation of the Judicial Tenure Commission and ORDER that the respondent be publicly censured and suspended for 30 days without pay, effective 21 days from the date of this order.”
After reviewing the standards set forth in In re Brown, 461 Mich 1291, 1292-1293 (2000), the court states:
“In this case those standards are being applied to the findings of the Judicial Tenure Commission. The Commission adopted the stipulations of fact agreed to by respondent and the examiner. We adopt the following findings of the Commission as our own:
1. Respondent is, and at all material times was, a judge of the 58th District Court in Hudsonville, Michigan, where he has served continuously since January I, 1980.
... 6.... Respondent does not challenge the accuracy of either transcript A or B.
... 8. ... Judge Edward Post reversed Mr. Millard's contempt of court conviction. ...
... 11. Respondent admits that some of his comments directed to and about Mr. Millard were improper and eroded public confidence in the judiciary in violation of the Code of Judicial Conduct 2A. Respondent also
admits that his failing to be patient and dignified with Mr. Millard was contrary to the Code of Judicial Conduct 3A, thereby creating the appearance of impropriety.
12. Respondent contends that his actions did not violate _____’s Fifth Amendment right...
The standards set forth in Brown are also being applied to the following conclusions of the Judicial Tenure Commission, which we adopt as our own:
Respondent has admitted, and the Stipulations and attached transcripts show by a preponderance of the evidence, that Respondent breached the standards of judicial conduct and is responsible for the following:
a. Irresponsible or improper conduct that eroded public confidence in the judiciary, in violation of MCJC, Canon 2A; and
b. Failure to be patient, dignified, and courteous to litigants, lawyers, and others with whom the judge deals in an official capacity, in violation of MCJC, Canon 3A(3).
In addition, although not admitted by Respondent, the Stipulations and attached transcripts show by a preponderance of the evidence, that Respondent breached the standards of judicial conduct and is responsible for the following:
a. Misconduct in office, as defined by the Michigan Constitution of 1963, as amended, Article 6, Section 30 and MCR 9.205;
b. Conduct clearly prejudicial to the administration of justice, as defined by the Michigan Constitution of 1963, as amended, Article 6, Section 30 & MCR 9.205;
c. Conduct that is prejudicial to the proper administration of justice, in violation of MCR 9.104(1);
d. Failure to establish, maintain, enforce, and personally observe high standards of conduct so that the integrity and independence of the judiciary may be preserved, contrary to MCJC, Canon 1.
e. Failure to be aware that the judicial system is for the benefit of the litigant and the public, not the judiciary, contrary to MCJC, Canon 1.
f. Conduct involving impropriety and appearance of impropriety, contrary to MCJC Canon 2A;
g. Failure to be faithful to the law, contrary to MCJC, Canon 3A(1);
h. Failure to avoid a controversial tone or manner in addressing counsel and failure to avoid the unnecessary interruption of counsel during arguments, in violation of MCJC, Canon 3A(8);
i. Conduct that exposes the legal profession or the courts to obloquy, contempt, censure, or reproach, contrary to MCR 9.104(2);
j. Conduct that is contrary to justice, ethics, honesty or good morals, contrary to MCR 9.104(3);
k. Conduct that violates the standards or rules of professional conduct adopted by the Supreme Court, contrary to MCR 9.104(4); and
1. Conduct that violates MCL 600.1701, addressing contempt.
...[W]e ORDER that the Hon. Kenneth D. Post be publicly censured and suspended from judicial office without pay for 30 days, effective 21 days from the date of this order. This order further stands as our public censure.”
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