A lack of due process for accused judges?

By Lee Dryden
BridgeTower Media Newswires
 
DETROIT, MI — A proposal that would shift responsibility for judicial discipline was a target for criticism at a Michigan Supreme Court public hearing.

The high court is now considering whether to adopt the proposed amendments of MCR 8.110 and 8.111 to “explicitly provide that corrective action may be taken by the State Court Administrator, under the Supreme Court’s direction, against a judge whose actions raise the question of the propriety of the judge’s continued service and explicitly allow a chief judge to order a judge to undergo an independent medical examination in limited circumstances.”

The “corrective action” could include relieving a judge of his or her caseload.

Concerns expressed by commenters about the proposed changes included an erosion of due process for accused judges, an unnecessarily diminished role for the Judicial Tenure Commission and a disciplinary process that could be tainted by personality conflicts between chief judges and other judges within their court.

‘Is there a need?’

The proposed amendments are the “antithesis of what we learned in our civic, government and law classes,” said Judge Michael E. Wagner of the 36th District Court in Detroit. He spoke on behalf of the Association of Black Judges of Michigan, for which he is president.

“We learned that due process and fundamental fairness are the pillars that support our democratic and judicial procedures,” he told justices during the Jan. 23 public hearing.

Wagner said everyone has a right to review and respond to accusations against them and have a fair hearing by an impartial body.

“These proposed amendments will suspend and eliminate a necessary check and balance,” he said.

Wagner questioned why changes would be made to a system that isn’t broken, citing the administrative structure of the JTC and the State Court Administrative Office that ensures all allegations are thoroughly investigated and reviewed in an unbiased manner.

The authority must remain with SCAO and the JTC to maintain “consistent application of due process,” Wagner said.

He asked if there has been an uptick of incompetent judges or unethical behavior that would justify the change.

“Is there a need to push this great responsibility and authority down to the local chief judge where the standards could vary greatly?” Wagner asked, citing the possibility of personality disputes between judges.

Philip J. Thomas, who serves as counsel for the Association of Black Judges of Michigan, said the proposed changes don’t include provisions for notice to the judge about accusations or an opportunity to answer.

“These rules really eradicate a judge’s ability to have legal counsel represent him or her in this new type of hybrid proceeding that is contemplated by the amendments to MCR 8.110,” he told the court.

Thomas, who represents judges in JTC proceedings, added, “There is a danger in this court rule for there to be rubs between chief judges and, I hate to say this, but often times in the cases I’m involved in, members of the court administrator’s office are called as witnesses and, generally speaking from my experience, they side with the chief judge.”

If quick action is needed to remove a judge, the JTC is already allowed under “extraordinary circumstances” to petition for an interim judge suspension before an investigation is completed, Thomas said.

Thomas said language could be added stating that such circumstances could include, but not be limited to, mental or physical disability.

He speculated that the amendments are aimed at resolving cases more quickly.

As for concerns about personality conflicts, Thomas pointed out that judges come to the bench from different backgrounds — such as prosecution or defense — amid perceptions that a judge may favor one side over the other. A chief judge could be from a different background than another judge on the court.

“I think it’s ripe for abuse,” Thomas said of the possible rule changes.

Judge Travis Reeds of the 52nd District Court in Novi spoke on behalf of the Michigan District Judges Association. He offered the MDJA’s suggestion of creating an affirmative duty for a judge to inform the chief judge of the reason and expected duration for an absence of over 10 days due to a health condition or circumstance.

Failure to inform the chief judge would be the basis for informing SCAO and initiating a JTC complaint, Reeds said.

“I think judges should be self-policing,” he said. “We need to be forthright, we need to be honest. Even when we’re accused of doing something improper, we need to always be honest and respond.”