Judicial tenure commission explained by member Judge Pablo Cortes of Kent County



By Cynthia Price
Legal News

With humor and charm, Judge Pablo Cortes of the 62A District Court in Wyoming answered questions about the Michigan Judicial Tenure Commission many people may not even have known to ask.

He presented to the NALS legal professionals group at its monthly NALS @ Noon presentation on January 8.

Judge Cortes worked as an Assistant Kent County Prosecuting Attorney before his appointment to the 62A District Court in 2005. He ran and won in 2006 and again in 2008, and most recently in 2014, when he was unopposed; his current term will expire at the end of December 2020.

He took the position in the Prosecutor’s Office right after graduating from Wayne State University Law School in 1995, which followed getting his undergraduate degree from University of Michigan.

Cortes said that the Judicial Tenure Commission (JTC) is set up in the State Constitution of 1963. It is Article VI Section 30, where subsection (1) allows for the following categories of members to be on the nine-person commission:

“Four members shall be judges elected by the judges of the courts in which they serve; one shall be a court of appeals judge, one a circuit judge, one a probate judge and one a judge of a court of limited jurisdiction. Three shall be members of the state bar who shall be elected by the members of the state bar of whom one shall be a judge and two shall not be judges. Two shall be appointed by the governor; the members appointed by the governor shall not be judges, retired judges or members of the state bar.”

Current members of the JTC include Hon. Monte Burmeister, Paul J. Fischer, Esq. (who is also the Executive Director), David T. Fischer, Hon. Michael M. Hathaway, Thomas J. Ryan, Esq.; Nancy J. Diehl, Esq., Melissa B. Spickler, Hon David H. Sawyer, Hon. Nancy J. Grant, and Cortes.

Judge David Sawyer of the Michigan Court of Appeals works out of the Grand Rapids COA?office and was also, coincidentally, a Kent County Prosecuting Attorney before becoming a judge.

Cortes said that he, as well as Sawyer, became members of the JTC in part because of the procedures followed by the commission in the 2008 incident with recently-retired Judge Steven Servaas. “We both were very distressed by that, and that’s what prompted us both to run,” Cortes said, noting that he feels the JTC has since curbed tactics such as were used with Judge Servaas.

Both have stayed on the commission since their Jan. 1, 2011, installation, and Cortes said he loves the work. Currently, Sawyer is the Vice-Chairperson of the Commission, and Cortes is Secretary.

Subsection (2) of Article VI Section 30 goes on to say, “On recommendation of the judicial tenure commission, the supreme court may censure, suspend with or without salary, retire or remove a judge for conviction of a felony, physical or mental disability which prevents the performance of judicial duties, misconduct in office, persistent failure to perform his (sic) duties, habitual intemperance or conduct that is clearly prejudicial to the administration of justice.”

Judge Cortes stressed two important aspects of this in his presentation: first, the JTC is responsible only for making recommendations, whereas it is the Michigan Supreme Court which makes the final decision; and second, there are a limited number of infractions that fall under the jurisdiction of the JTC.
“One of the most common things we get asked to do is review judicial findings,” Judge Cortes said with some amusement, “which we can’t do. They ask us to intervene in cases, or to overturn decisions.

“The only thing we can do is deal with bad judges.”

According to Judge Cortes, there are basically two situations in which sanctions may be sought. The first is if the judge has actually broken the law. He noted that, although he thinks it may possibly be overly harsh, a judge convicted of drunk driving warrants an automatic 90-day suspension without pay.

The second category is more subtle and involves most of the instances in Subsection (2) above. Judicial misconduct may include anything from unequal treatment of individuals coming before the judge to siphoning off money illegally for pet projects, as occurred in a recent case. “Physical and mental disabilities” is also a very broad category, warranting different types of responses. Excessive absenteeism is a widespread problem, rendering the judge unable to perform his or her duties. And then there is the whole realm of the lack of “judicial” temperament.

“There are judges who lose their tempers, “ Judge Cortes said, “and then some suffer from Black Robe Disease. We often send them a cautionary letter that says something like, ‘You as a judge serve for the benefit of the public and the litigants, so get over yourself,’” he laughed.

The JTC website (http://jtc.courts.mi.gov/) has clear directions for submitting a grievance, and Cortes emphasizes that they usually reject unsigned complaints. “Usually we reject those almost immediately, unless they include, say, an article that has appeared in the press or something we can work with,” he says.

JTC staff sends frequent documents to commission members recommending that inappropriate or unsubstantiated complaints be dismissed, though the commission, which meets once a month in Detroit, may sometimes disagree. Separate documents are sent to the commissioners regarding recommended responses to cases that will move forward, including sending letters that are explanations, cautions or admonitions.

But in the winnowed-down number of cases where it appears there is reason for Michigan Supreme Court action, there is a full-blown hearing where E.D. Paul Fischer serves as prosecutor and the judge has counsel representing him or her. “It seems like there’s kind of a cottage industry of representing judges,” Judge Cortes comments.

He says he is often disturbed by the Executive Director changing roles, which entails Fischer leaving the room while the commission deliberates. Cortes feels it would be smarter to have the prosecutorial body and the commission separate from the beginning.

In addition, a Master is appointed for each case, and that Master comes back with findings of fact. Still, the JTC is not required to follow the Master’s findings when it makes its recommendations. And finally, the Supreme Court is under no obligation to follow the JTC’s recommendations.

All things considered, the job is a lot of work. “I’m reading more for this than I did in law school,” Cortes jokes. The commissioners receive no pay, though they do get mileage reimbursement for their trips to Detroit.

But Judge Cortes remains committed. When a NALS member asked why, he replied, “I guess I?just think it’s important to keep judges honest, and I think you need people who have their heart in it.

“In the great cosmic spreadsheet it all works out,” he concluded.