Graham, In re

• Decision Date: 04 April 1962
• Docket Number: No. 163,163
• Citation: 114 N.W.2d 333,366 Mich. 268
• Parties: In the Matter of Henderson GRAHAM, Judge of Probate, Respondent. Motion
• Court: Michigan Supreme Court

Page 333

114 N.W.2d 333

366 Mich. 268

In the Matter of Henderson GRAHAM, Judge of Probate, Respondent.

Motion No. 163.

Supreme Court of Michigan.

April 4, 1962.

Thomas R. McAllister, Bad Axe, for Judge Graham.

Benjamin Waston, Lansing, for Court Administrator.

Before CARR, C. J., and DETHMERS, KELLY, BLACK, KAVANAGH, SOURIS and SMITH, JJ.

PER CURIAM.

June 5, 1959, this Court adopted its currently effective rules for superintendence of the judiciary of Michigan. Such rules were prepared and submitted to the Chief Justice, with due recommendation of adoption by the Board of Commissioners of the Integrated Michigan Bar. A transcript thereof may be found in Volume 356 of Michigan Reports, xv through xxi. They were designed as implements of procedure and due process for the constitutional mandate date of superintendence. See Const.1908, art. 7, § 4.

Following an investigation which had been isntituted and concluded by the attorney general, and reference by his office of the results of such investigation to the court administrator, the present proceeding ¹ was authorized by the Chief Justice under Rule 3. Since Rule 8 requires in presently indicated circumstances that the hearing court make written findings of fact and law, and that such court determine such corrective and disciplinary measures as in the judgment of the court are warranted by such findings, we respond with the following findings and determination.

Henderson Graham, respondent in the present proceeding, is the duly elected, qualified and acting probate judge of Tuscola county. He was serving his second four year term during the period of judicial and personal action brought into present scrutiny.

Edwina Dering, by recent marriage Edwina Green, became 21 years of age since the hearing of January 23. By guardianship proceedings instituted in the Tuscola county probate court under date of January 27, 1958, one William Walkiewicz was appointed guardian of Edwina's estate. Mr. Walkiewicz submitted his final account as such guardian and was duly discharged after having paid over to the successor guardian the accounted amount remaining in his hands, namely, $3669.51. Shortly before such discharge Edwina's older sister, Sylvia Goszkowski, a resident of Detroit, was appointed successor guardian of Edwina's estate by order of the respondent judge dated September 21, 1959. The amount of her bond was set by respondent at the sum of $3,000. Mrs. Goszkowski's bond was approved and filed, and letters of guardianship were duly issued to her by order of the respondent.

Under date of October 3, 1960, Mrs. Goszkowski filed with said probate court an inventory of the ward's estate. The inventory disclosed then, as the testimonial record does now, that the parents of the 2 sisters had been killed in an automobile accident and that there had been distributed, to Mrs. Goszkowski as guardian of Edwina, the total sum of $16,666.67 representing Edwina's distributive share of the recovered proceeds of death actions which had been instituted, in the Livingston circuit, by the presonal representatives of the 2 parental estates. Such proceeds, added to the amount previously received, made up--on the face of the probate record--a net total of liquid assets, in the hands of the guardian, of $20,294.18 (from the added amounts we have deducted $42, consisting of allowed administration expenses).

In early February of 1961 the respondent judge, at Caro, that being the county seat of Tuscola county, telephoned guardian Goszkowski at Detroit. The purpose of his call was to open negotiations with the guardian for a personal loan, to him, from the ward's estate as reported in the probate record, in the sum of 'about $20,000.' Mrs. Goszkowski advised respondent that she would discuss the proposal with her sister (the ward, then a student at Michigan State University) and that she would return respondent's call. The proposal to Mrs. Goszkowski seemed 'unusual.' She called her attorney for advice. Her attorney thereupon called a member of the attorney general's staff; whereupon the attorney general's department undertook and concluded the investigation to which we have referred. Details of the latter follow:

Mrs. Goszkowski was directed to call respondent, as she had agreed, in the presence of 2 officers of the State Police. The call was made. In the course thereof Mrs. Goszkowski accepted respondent's offer to come to her home, in Detroit, to discuss his proposal. It was agreed that he come to her home 'the following Wednesday,' which was February 8. Respondent came to the Goszkowski home as arranged, where the conversation between judge and guardian was secretly recorded by the officers. Mrs. Goszkowski testified that respondent 'brought with him several documents about his real estate and insurance policies, and he was going to show that this would be a very good investment as he was--he certainly could cover the $20,000 if I ever needed it, provided that we went through with the investment.' The security offered by respondent for the loan as proposed was to be a promissory note signed by himself and wife, 'And he said, well, we could have--we could hold the mortgage on his home or his property, and he said--but he would just as soon not, that all really that would be necessary would be his signature and his wife's.' Mrs. Goszkowski went on to relate that respondent said that 'If my sister insisted upon a mortgage he would give it to her, and he said we could keep it in the house, and that it wouldn't be necessary to register it.'

The following testimony, which is found established by clear preponderance, is significant at this point:

'Q. All right. Now I am still on the Wednesday conference. At any time during this day was the question of your bond as the fiduciary, the guardian, talked about?

'A. Yes.

'Q. What was said about that?

'A. That seeing that the assets were now increased from $3,000 that I would have to increase my bond, provided I did not make this loan to Judge Graham.

'Q. To him?

'A. Yes.

'Q. Now there is no question about that at all, is there, Mrs. Goszkowski----

'A. No.

'Q. -- in your mind?

'A. No.

'Q. Do I gather, then, that if you agreed to make this loan to him your $3,000 bond would continue as adequate in his court?

'A. Yes.'

The conference of February 8, at the Goszkowski home, was left 'with no decision made.' Respondent appeared desirous of an answer 'at some early date' and Mrs. Goszkowski agreed to get in touch with him later. Two days later, by appointment, Mrs. Goszkowski went to the Detroit office of the attorney general. There she placed a call to respondent. On that occasion she told respondent 'that we would not discuss this any more because we would not go through with any type of a note or an investment with him personally.' Later that day respondent called Mrs. Goszkowski again and expressed a desire to discuss the proposed loan with the ward, suggesting that 'he could go to East Lansing and talk to her.' Mrs. Goszkowski then advised that she would discuss the proposal with the ward and 'would return his call.' That she did, later in the day. Respondent was advised 'That my sister would be in Detroit the following day and that if he would like to come to my home he could speak to her.' Respondent replied that he would be there at the appointed time; one o'clock in the afternoon. The meeting as arranged was duly held. The 2 sisters were present, along with respondent. Officers Whalen and Denkel were present in the home. Their presence was not disclosed to respondent, and the entire conference was tape recorded by them.

The same proposal, to borrow approximately $20,000 from the ward's estate, was presented by respondent and discussed for approximately one hour. The 2 sisters finally told respondent that their decision was 'No', whereupon respondent told the two that the guardian's bond would have to be increased from the then amount of $3,000 if the proposed loan was not made and if made the $3,000 bond would remain without ordered increase of the amount thereof.

It is unnecessary to detail further the evidence of respondent's design. It was proven clearly and is not categorically denied. And we cannot help noting, with a feeling of shame, the secrecy this judge of a court of record employed as he sought to take over and apply, to his own use, funds of which he was a primary as well as judicial trustee. Courts of record usually act in open court or at chambers, on the record with respect to judicial duties and matters subject to their jurisdiction. The judges thereof do not usually arrange by telephone, with no record made of such doings in the court file, for distant and off-the-record conferences with fiduciaries appointed by them and remaining under their jurisdictional control. Nor do they deal in such manner with the subject-matter of appointment and jurisdictional control, that is, estate assets.

This Court finds that, on and prior to February 11, 1961, the respondent judge sought affirmatively if unsuccessfully to negotiate secretly a personal loan to him from an estate subject to his lawful control and orders, in the sum of approximately $20,000, and to use his official position in furtherance thereof. Such conduct on the part of a judge is both intolerable and unpardonable. We shall say more of this later.

The respondent judge was given full opportunity to explain and excuse his conduct. An all day hearing was provided with all eligible members of the Court participating. No further time for presentation of additional proof was requested. Respondent's defense, submitted by testimony and with the aid of able counsel, is that he is not legally schooled, that he was not versed or familiar with the canons of judicial ethics, that he was guilty at worst of poor judgment, that he was activated by honest if ill-advised motives, that adequate security for the proposed loan would have been provided, and that no...