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Michigan Supreme Court Lansing, Michigan

Opinion
In re Honorable MICHAEL J. HALEY Judge, 86th District Court. _______________________________ BEFORE THE ENTIRE BENCH YOUNG, J.

Chief Justice:

Justices:

Clifford W. Taylor

Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman

FILED JULY 31, 2006

No. 127453

The Judicial Tenure Commission (JTC) has recommended that this Court publicly censure respondent 86th District Court Judge Michael Haley for accepting in open court football tickets from an attorney appearing before him. Canon 5(C)(4) of the Michigan Code of Judicial Conduct prohibits a judge or family member residing in the judge's household from accepting "a gift, bequest, favor, or loan from anyone . . . ." This general prohibition is subject to three exceptions. Consistent with the JTC recommendation, we conclude that

respondent violated Canon 5(C)(4), and that the gift at issue did not fit within any of the listed exceptions. In particular, respondent's acceptance of the football tickets was not an instance of "ordinary social hospitality," an exception found in Canon 5(C)(4)(b). Having decided that respondent was in violation of a specific, controlling judicial canon, we conclude that it is inappropriate to also consider

whether respondent created a general appearance of impropriety under Canon 2, as urged by the examiner. The JTC concluded, after applying the Brown factors,1 that respondent's misconduct significantly harmed the public's perception of the judiciary and that this ethical lapse warranted a public censure. We agree. Accordingly, we adopt the recommendation of the JTC that respondent be publicly censured. I. Facts and Procedural History Respondent Judge Michael Haley is a member of the 86th District Court in Traverse City, Michigan. On October 14, 2003, he presided over a plea

proceeding in a criminal case involving a defendant who allegedly lost control of her vehicle and destroyed a florist's sign. The prosecutor reached a plea

agreement with the defendant whereby she would plead guilty of using a vehicle with improper license plates and pay restitution. The defendant and the prosecutor disagreed about the appropriate amount of restitution. Respondent accepted the guilty plea and stated that the court would sentence the defendant at a future date. The defendant's attorney, Richard

Benedict, a retired district judge who had resumed private practice, then approached the bench. Benedict placed two University of Michigan football

tickets on the bench, at which time Benedict and respondent engaged in the following colloquy:

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In re Brown, 461 Mich 1291, 1292-1293 (2000).

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Mr Benedict: You got to promise to go.
The Court: It's a week from Saturday?
Mr Benedict: No, Saturday.
The Court: This Saturday. Hmm, I could go.
Mr Benedict: Promise.
The Court: I promise to go? I've got to make a phone call.
Today's Tuesday, where are you tomorrow? Mr Benedict: The office. No, I'm in Kalkaska. If you want it, take it. The Court: Okay. If there's anybody else that-- Mr Benedict: When you said you were interested, I indicated that I still have to ask another. If you can't go, somebody's got to go. The Court: I'll make sure somebody goes and that you get paid. Mr Benedict: I don't need to get paid. The Court: Okay. All right. Mr Benedict: I need to make sure there's [sic] two people sitting in the seats. Respondent accepted the tickets. He then reconsidered his earlier decision to postpone sentencing, and sentenced the defendant to a $100 fine, $250 in court costs, a $40 state fee, an undetermined amount of restitution, and six months of probation. He later determined restitution to be $4,116.35, which was the full amount sought by the victim and the prosecutor.

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Officer Terry Skurnit was the court officer present in the courtroom at the time of the plea proceeding, and he watched respondent accept the tickets. Officer Skurnit told a supervisor about the incident, who informed the prosecutor, who in turn told respondent about Skurnit's complaint. On October 31, 2003, respondent wrote a letter to Skurnit's superior, Sheriff Terry Johnson, notifying Johnson that respondent had banned Skurnit from respondent's courtroom. Skurnit then filed a request for investigation with the JTC. After conducting a preliminary investigation, on November 18, 2004, the JTC filed a two-count complaint against respondent. Count one alleged that respondent engaged in impropriety or created an appearance of impropriety by accepting the football tickets. Count two alleged that respondent misrepresented facts to the JTC and demonstrated a lack of candor in the course of the investigation. On January 5, 2005, this Court appointed as master the Honorable Casper O. Grathwohl to preside over the hearing. After hearing the matter, the master submitted a written report recommending no discipline on either count. The master conceded that

respondent's acceptance of the football tickets was "inappropriate" and "displayed poor judgment." However, he concluded that the examiner had not proven by a preponderance of the evidence that respondent engaged in misconduct. The

examiner filed an objection to the master's report, challenging the master's

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conclusions of law regarding count one.2 The JTC scheduled a public hearing for July 11, 2005. Following the public hearing, the JTC issued a written opinion rejecting the master's conclusions of law3 and recommending that this Court publicly censure respondent.4 It concluded that respondent's acceptance of the football tickets constituted: (1) Misconduct in office, as defined by the Michigan Constitution of 1963, as amended, Article 6, Section 30 and MCR 9.205; (2) Conduct clearly prejudicial to the administration of justice, as defined by the Michigan Constitution of 1963, as amended, Article 6, Section 30, and MCR 9.205; (3) 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 the Code of Judicial Conduct, Canon 1; (4) Irresponsible or improper conduct that erodes public confidence in the judiciary, in violation of the Code of Judicial Conduct, Canon 2A; (5) Conduct involving impropriety and the appearance of impropriety, in violation of the Code of Judicial Conduct, 2A; The examiner did not challenge the master's conclusion regarding count two, and dismissed that count. Accordingly, count two is no longer at issue in this case. The JTC criticized the master's legal conclusions for lacking any explanation or legal support. Two members of the nine-member JTC panel dissented in part from the recommendation. Although they concurred with the public censure, they also urged this Court to suspend respondent without pay for 30 days.
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(6) Failure to conduct oneself at all times in a manner that would enhance the public's confidence in the integrity and impartiality of the judiciary, contrary to the Code of Judicial Conduct, Canon 2B; (7) Improper acceptance of a gift from a donor whose interests have come or are likely to come before you, contrary to Canon 5C(4)(c); (8) Conduct that exposes the legal profession or the courts to obloquy, contempt, censure, or reproach, in violation of MCR 9.104(A)(2); and (9) Conduct that is contrary to justice, ethics, honesty or good morals, in violation of MCR 9.104(A)(3). The JTC rejected respondent's contention that he had not engaged in misconduct because his actions fell within two of the three exceptions to the general prohibition of accepting gifts in Canon 5(C)(4). The JTC analyzed both exceptions and concluded that the tickets did not constitute "ordinary social hospitality" and that the gift was not offered by a disinterested party. Having found that respondent engaged in misconduct, the JTC considered the appropriate sanction under the Brown factors.5 It considered five factors

In re Brown, supra at 1292-1293. In Brown this Court articulated standards for judicial discipline so that the JTC could "undertake a reasonable effort . . . to ensure a consistent rule of law" when dispensing discipline, thereby protecting the judge's due process rights. Id. at 1295. Thus, the Brown decision sought to ensure that disciplinary sanctions were both proportionate to the ethical infraction and reasonably consistent with sanctions given for similar judicial misconduct. The standards announced in Brown are: (continued...)
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relevant to this disciplinary matter. First, the acceptance of the tickets was an isolated instance rather than part of a pattern or practice of misconduct. Second, the misconduct took place on the bench rather than off the bench. Third, the misconduct was not prejudicial to the actual administration of justice, because respondent ordered the exact amount of restitution that had been sought by the prosecutor. Thus, there was no judicial act that appeared to favor Benedict's _________________________________ (...continued) (1) misconduct that is part of a pattern or practice is more serious than an isolated instance of misconduct; (2) misconduct on the bench is usually more serious than the same misconduct off the bench; (3) misconduct that is prejudicial to the actual administration of justice is more serious than misconduct that is prejudicial only to the appearance of impropriety; (4) misconduct that does not implicate the actual administration of justice, or its appearance of impropriety, is less serious than misconduct that does; (5) misconduct that occurs spontaneously is less serious than misconduct that is premeditated or deliberated; (6) misconduct that undermines the ability of the justice system to discover the truth of what occurred in a legal controversy, or to reach the most just result in such a case, is more serious than misconduct that merely delays such discovery; (7) misconduct that involves the unequal application of justice on the basis of such considerations as race, color, ethnic background, gender, or religion are more serious than breaches of justice that do not disparage the integrity of the system on the basis of a class of citizenship. [Id. at 1292-1293.]

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client.

Fourth, the acceptance of the football tickets, by itself, created an

appearance of impropriety. Fifth, the misconduct was not spontaneous, because respondent and Benedict had discussed the gift in the prior week. Because the misconduct took place while respondent was on the bench, it created an appearance of impropriety and was not spontaneous, the JTC believed that the conduct in question warranted some form of a sanction. In addition to balancing the relevant Brown factors, in its effort to determine a proportionate sanction, the JTC considered similar disciplinary actions both from this state and from other jurisdictions. It found that disciplinary actions in Michigan provided "little guidance" because of their factual dissimilarity.6 Therefore, it turned to similar cases from other jurisdictions where the judge improperly accepted sports tickets and received a public reprimand.7 In light of these considerations, the JTC recommended that this Court publicly censure respondent in order to restore public confidence in the integrity of the judiciary.

See e.g., In re Lawrence, 417 Mich 248; 335 NW2d 456 (1983) (the respondent censured, suspended, and ordered to return funds for, among other things, accepting free representation from an attorney in exchange for assigning that attorney indigent criminal cases and improperly retaining campaign funds); In re Jenkins, 437 Mich 15; 465 NW2d 317 (1991) (the respondent was removed from office for accepting gifts from litigants appearing before him, soliciting and accepting bribes, communicating ex parte with litigants, soliciting perjury from an individual, and intentionally misrepresenting information on an insurance application). See Office of Disciplinary Counsel v Lisotto, 94 Ohio St 3d 213; 761 NE2d 1037 (2002); Inquiry Concerning a Judge, 756 So 2d 76 (Fla, 2000); In re Daghir, 657 A2d 1032 (Pa Ct of Judicial Discipline, 1995).
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II. Standard of Review The Michigan Constitution authorizes this Court to discipline judges upon recommendation by the JTC.8 This Court reviews the JTC's factual findings and disciplinary recommendations de novo.9 Findings of misconduct must be

supported by a preponderance of the evidence.10 Although we review the JTC's recommendations de novo, this Court generally will defer to the JTC's recommendations when they are adequately supported.11 III. Analysis a. Respondent's actions violated Canon 5(C) of the Code of Judicial Conduct Respondent challenges the JTC's conclusion that he engaged in misconduct and the JTC's recommendation that he receive a public censure.12 Canon 5 of the Michigan Code of Judicial Conduct regulates a judge's extrajudicial activities to "Minimize the Risk of Conflict With Judicial Duties." It specifically addresses a judge's avocational pursuits, civic and charitable
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Const 1963, art 6,

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