In re Chmura

• Citation: 608 N.W.2d 31,461 Mich. 517
• Decision Date: 28 March 2000
• Docket Number: Docket No. 112062, Calendar No. 11.
• Parties: In re Hon. John M. CHMURA, Judge, Thirty-Seventh District Court, Warren, Michigan.
• Court: Supreme Court of Michigan

608 N.W.2d 31

461 Mich. 517

In re Hon. John M. CHMURA, Judge, Thirty-Seventh District Court, Warren, Michigan.

Docket No. 112062, Calendar No. 11.

Supreme Court of Michigan.

Argued November 11, 1999.

Decided March 28, 2000.

Allan D. Sobel and Thomas L. Prowse, Detroit, for Judicial Tenure Commission.

Collins, Einhorn, Farrell & Ulanoff, P.C. (by Brian D. Einhorn, Theresa M. Asoklis, and J. Mark Cooney), Southfield, for the respondent.

Opinion

CORRIGAN, J.

This disciplinary matter involves a challenge to the constitutionality of Canon 7(B)(1)(d) of the Code of Judicial Conduct, which governs public communications by candidates for judicial office.¹ We hold that Canon 7(B)(1)(d) is facially unconstitutional. We therefore narrow the canon to prohibit a candidate from either knowingly or recklessly using forms of public communication that are false. Accordingly, we amend Canon 7(B)(1)(d) to provide that a candidate for judicial office: "should not knowingly, or with reckless disregard, use or participate in the use of any form of public communication that is false." Because the Judicial Tenure Commission (JTC) did not apply the narrowed canon in its initial decision, we remand to the commission for a determination whether respondent violated the narrowed canon and, if so, for a new recommendation regarding the level of discipline.

I. Factual Background and Procedural Posture

This disciplinary proceeding arises from respondent's 1996 campaign to retain his 37th District Court judgeship against a challenge by James P. Conrad, the 37th District Court administrator and magistrate. Respondent was appointed to the position in May 1996. Conrad ran against respondent in the fall election for the unexpired term.

A. The Campaign Literature

Respondent's campaign committee distributed four fliers that are the subject of these proceedings.²

Exhibit 1 is a two-page flier entitled "Robin Hood?" The cover portrays former Detroit Mayor Coleman Young as a Robin Hood figure. The left page inside the flier contains a photograph of Mayor Young above the following text: "Coleman Young wanted your money, but one man stood in the way ... Judge John Chmura." The right page contains a photograph of respondent. The text on that page states that "Coleman Young and the Lansing crowd cooked up a plan to take your tax dollars and spend them on Detroit's school districts. They called it Robin Hood-they stole from our taxpayers, our schools and our children to help prop up Coleman Young." It describes respondent's actions as "standing up to Coleman Young" and "standing up for your children." The text characterizes respondent's role in the lawsuit challenging the statutory scheme as taking "the state to court, arguing one appeal after another, until the state backed down and allowed your kids to benefit from your hard-earned tax dollars." Under the subheading "One Tough Judge," the text relates respondent's involvement in term limits and antitaxation causes before taking the bench. It further states that, as a judge, respondent has conducted himself in accordance with his prior actions by taking "one criminal after another off our streets." The flier then repeats that respondent is "always standing up for what's right." It also reiterates that respondent is "one tough judge." The back page of the flier contains a photograph of respondent with his family and lists his professional and civic affiliations. Exhibit 3 is a one-page circular, folded in half, entitled "It didn't have to be this way." The cover contains a photograph of a partially obscured police officer in a patrol car. The inside of the flier contains a depiction of a mug shot with the caption "Murder ... Rape ... Dismemberment... Innocent Victims ... Could Jim Conrad's Court have stopped it?" The accompanying text states that James Craig Cristini had appeared at least four times in 37th District Court during Conrad's tenure as court administrator and magistrate and had "received only a slap on the wrist" each time. It states that Cristini was "let back out for only $100" after being charged with assault and battery. The flier further states that "after being released on a second Assault & Battery charge, Cristini went on a rampage of murder and mayhem," resulting in "[i]nnocent victims, raped, murdered and dismembered." The text concludes with the following: "That's what happens when you put bureaucrats in charge of a court. Jim Conrad ... He's just a bureaucrat." The back of the circular contains the text "End the Fear."

Exhibit 4 is a two-page flier entitled "We shouldn't have to worry about sexual harassment at work or violence at home!" The cover of the flier contains a photograph of a young woman sitting at a typewriter with a male hand touching her shoulder and a photo of a young woman with a young girl. The upper half of the inside of the flier is captioned "Magistrate Jim Conrad is facing trial for sexual harassment of a female court employee!" It includes a photograph of Conrad with a woman identified as a "former court reporter" leaning on his shoulder. The woman's face is obscured. Also included is a reduced image of a pleading described as a "Sexual Harassment complaint filed against Magistrate Jim Conrad." The text states "Conrad tries to dodge trial by claiming `government immunity.'" It explains in smaller type that Conrad "is accused of intimidating and firing a female court employee because she complained of being sexually harassed on the job. Papers filed with the court by Conrad's lawyers say that he can't be tried because, as Magistrate, he has governmental immunity!" It further states that the complaint had cost Warren and Center Line taxpayers "thousands of tax $$$ to defend! Now, he wants your vote for District Court judge!"

The bottom half of the inside of the flier is entitled "Judge John Chmura.... One Tough Judge" and contains two photographs of him on the bench, one of which shows him exchanging papers with Macomb County Prosecutor Carl Marlinga. The text states "Tough on domestic violence and stalkers!" It explains that respondent is "tough on criminals who prey on women" and "won't stand for acts of domestic violence or allow stalkers to run wild." It further states that respondent "won't tolerate sexual harassment of court employees," explaining that respondent "thinks your peace of mind comes first!" The bottom half of the flier also includes a favorable quote about respondent from Prosecutor Marlinga. The back of the flier contains a photograph of respondent with his family, a list of professional and civic affiliations, and a list of ten endorsers. The text also describes respondent as "one tough judge."

Exhibit 5 is a one-page circular, folded in half, that includes a drawing on its cover of a man leaving a courthouse asking the question "Where is my Courtroom?" The left half of the inside of the flier contains the "answer": "Jim Conrad is not a Judge, he has no courtroom."

The right half of the inside of the flier is captioned "So what has Jim Conrad been doing as Court Administrator for the past 7 years?" The text below the question states "Murderers and Stalkers ..., back on the streets ... commit crimes again ..." It explains: "In case after case... Murderer James Craig Cristini ... Stalker Edward Lightfoot ... Hardened, violent criminals appeared in the 37th District Court again and again only to be let out to commit more crimes." Under the heading "Corruption and Inefficiency," the flier states that federal investigators were looking into charges that the 37th District Court Probation Department "was running a scam under which court employees were receiving kickbacks, making big money off people's misery."

Under the heading "Sued for Sexual Harassment," the text states that "[w]hen court employee Carrie Meyer complained about the way she was treated at work, Jim Conrad threatened her job, demoted her, and harassed her." It further states that "Conrad's actions have resulted in a major sexual harassment lawsuit which has cost Warren and Center Line thousands to defend. But what's Conrad's defense? That he shouldn't be prosecuted because of government immunity." The text concludes with the statement "That's what happens when you put bureaucrats in charge of a court. Jim Conrad ... He's just a bureaucrat." The text on the back of the flier states "No More Bureaucrats."

B. Judicial Tenure Commission Proceedings

The Judicial Tenure Commission filed a complaint in April 1998 alleging that respondent's campaign literature violated Canon 7(B)(1)(d) of the Code of judicial Conduct. This Court appointed former Wayne Circuit Judge John P. Kirwan to serve as master in this case. Judge Kirwan issued a report after conducting an evidentiary hearing.

Judge Kirwan initially determined that the complaint should be dismissed because Canon 7(B)(1)(d) is facially unconstitutional. Judge Kirwan recognized that Michigan has a compelling interest in overseeing and regulating judicial elections. He nevertheless concluded that any canon or rule that attempts to restrict speech must avoid abridging a candidate's right to free speech as defined by New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Judge Kirwan determined that Canon 7(B)(1)(d) is not sufficiently specific to survive a constitutional challenge because it chills a candidate's right to free speech by not clearly apprising judicial candidates of impermissible comment.

In the alternative, Judge Kirwan assumed the constitutionality of the canon and the applicability of the "actual malice" standard enunciated in New York Times, supra.

Applying that standard, Judge Kirwan determined the JTC failed to allege or prove actual malice regarding any of the exhibits. He further determined, however, that if the actual malice standard does not apply, the JTC proved that respondent violated Canon 7(B)(1)(d) by distributing exhibits 3 and 5. Judge Kirwan found that...