In re Gorcyca
| Decision Date | 28 July 2017 |
| Docket Number | Docket No. 152831 (Calendar No. 1). |
| Citation | 500 Mich. 588,902 N.W.2d 828 |
| Parties | IN RE Honorable Lisa O. GORCYCA, Judge, 6th Circuit Court. |
| Court | Michigan Supreme Court |
This case comes to the Court after the Judicial Tenure Commission (the Commission) recommended that respondent, Sixth Circuit Court Judge Lisa O. Gorcyca, be publicly censured and suspended from office without pay for a period of 30 days. The Commission also imposed costs, fees, and expenses in the amount of $12,553.73 against respondent under MCR 9.205(B) for providing a misleading response to the Commission during its investigation. Respondent has filed a petition requesting that this Court reject or modify the Commission's recommendation.
After review of the entire record and careful consideration of the parties' arguments, we agree in part. with the Commission's conclusion that respondent committed judicial misconduct, but we are not persuaded that the recommended sanction is appropriate. Instead, we hold that public censure is proportionate to the judicial misconduct established by the record. We also reject the Commission's recommendation to impose costs, fees, and expenses against respondent under MCR 9.205(B).
The alleged misconduct in this judicial-discipline case arose in the context of a protracted and highly contentious divorce and custody case that was filed in 2009. Three children were born during the marriage: the oldest son (LT) was born in July 2001, the middle son (RT) was born in August 2004, and the only daughter (NT) was born in December 2005.
The register of actions related to the underlying divorce and custody proceedings reflects that more than 100 pleadings were filed and that more than 40 hearings were held. Well before the judgment of divorce was entered on August 8, 2011, the children's refusal to participate in parenting time with their father took center stage. The record reflects that the first notable instance arose shortly after an August 25, 2010 hearing at which the father was granted unsupervised parenting time. At that time, the legal guardian ad litem (LGAL), attorney William Lansat,1 scheduled parenting time for the father and his children on each day from August 25 through August 30. Apparently, at some point on August 27 while the children were with their father, the children called their mother and alleged that their father had made threats against them. When the mother appeared at the park where the father and the children were located, the father allegedly began "pushing her around." With their mother's encouragement, the children called 911, and the police responded. The responding police officers saw no visible injuries to the mother and concluded that there was no probable cause to arrest the father. The police informed the LGAL of the incident, and the LGAL directed the parties to terminate the visitation for the day. The matter was referred to the Department of Human Services (DHS).2 During an interview with DHS, the two older children alleged that they were threatened. The youngest child declined to talk about the incident. The matter was apparently closed.3 The rest of the August visitations were largely unsuccessful. Thereafter, respondent ordered that the father's future parenting time be supervised.
The children became exceedingly resistant to respondent's efforts to facilitate the children's relationship with their father. On September 15, 2010, the court ordered psychological evaluations of the parents and children and therapy for the children. The court granted the father supervised parenting time and the mother was afforded the choice of an individual to supervise that parenting time. The visits did not go well; the supervisor reported that she was unsuccessful in separating the children from their mother. The children refused to respond to their father and even avoided eye contact with him. The oldest child would pull the other children away from their father, and the children would hide behind their mother. The supervisor believed that the younger children were following the oldest child's cues and directions. The children behaved similarly during visits on November 1, 4, and 6, 2010.4
The August 8, 2011 judgment of divorce awarded the parties joint legal custody of the children, while awarding physical custody to the mother and parenting time to the father. Although the father planned to return to Israel, he expected to be in Michigan every three to four months for about three weeks each time.
Between 2011 and 2015, there were at least 13 motions to show cause filed by the father and the LGAL against the mother, all similarly related to the children's alleged refusal to comply with the court's parenting-time orders. During that period, at least 78 orders were entered—30 of which related to the children. Seven different therapists were involved with the children in the context of the parenting-time situation. During a therapy session in April 2011, a therapist reported that all three children "huddled" in a mass, whispering to each other with no other verbal contact. Yet, the LGAL reported that the mother did not believe that therapy was warranted and that she believed there was nothing wrong with the children. In November 2011, a family court judge filling in for respondent warned the parties that the children do "not run the show" and that a change in custody would be considered if the situation did not improve.
By February 2012, the children's refusal to engage in parenting time with the father had become routine anytime the father was supposed to meet with the children.5 Respondent interceded by ordering that parenting time with the father and the children be held at the home of the mother's friend. But again, the children largely ignored their father and the parenting-time supervisor. In a July 24, 2013 order, respondent informed the parties that if either of them failed to comply with the court's orders, they would be subject to contempt of court and "20 days for the first violation and 40 days for a subsequent violation."
On August 20, 2014, the parties stipulated to parenting time in respondent's jury room on the following two days—August 21 and 22. The children arrived at court but sat in chairs in the hallway and refused to participate, linking their arms together and refusing to look at or speak to anyone. Efforts by sheriff's deputies, LGAL Lansat, a friend of the court (FOC) counselor, and an assistant prosecuting attorney were fruitless. Respondent herself then went out in the hallway to try to persuade the children to participate in parenting time, explaining to them that they and their mother could be held in contempt of court if they continued to refuse to enter the jury room for parenting time. Eventually, the children went into the room on both dates, but, according to the LGAL and the FOC counselor, "[l]ittle progress" was made.6 According to the LGAL's report, it was at that time that respondent came to believe that the children "were in 'contempt' of her order and unless they complied, she would have had to appoint Attorneys for them."
The LGAL made specific recommendations regarding future parenting-time visits with the father, which would be monitored and would involve exchanges at the courthouse parking lot with a sheriff's deputy present. The LGAL stated that he knew of "no other option" because everything had been tried unsuccessfully for four years and because "[c]ontinuation of the status quo is untenable and is contrary to the children's best interest, the statutes and philosophy of the various statutes on custody and parenting time."
The time between August 2014 and June 2015 was replete with court hearings, stipulated orders, and more show-cause motions alleging violations of parenting time. On February 23, 2015, after moving back to Michigan from Israel, the father filed a motion to show cause, alleging that the mother continued to disregard the court's parenting-time orders and continued to alienate the children from him. By order of March 4, 2015, respondent implemented the parties' agreed-upon parenting schedule. She also ordered that the children were to lose access to electronics, visits with friends, and television until they began communicating with their father and that there was to be no replacement meal if the children refused to eat dinner with their father. Respondent indicated that she would be inclined to entertain the father's motion for a change in custody if things did not improve over the next 30 days. Thirty days came and passed without improvement. In fact, during that time the mother voluntarily went to jail and worked at an animal shelter for two days because she violated the parenting-time agreement. She also agreed to pay the father's attorney fees. In exchange, the father agreed not to pursue the motion to change custody. The parties agreed to have parenting time in the jury room during spring break.
On June 23, 2015, the parties appeared before respondent for a review hearing. The father's attorney and the parenting-time monitor, Art Gallagher, reported to respondent that while the children were appearing for the visits, they participated minimally. Respondent ordered that the...
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