In re Haley, Docket No. 127453.

CourtSupreme Court of Michigan
Citation476 Mich. 180,720 N.W.2d 246
Docket NumberDocket No. 127453.
PartiesIn re Honorable Michael J. HALEY Judge, 86th District Court.
Decision Date31 July 2006
720 N.W.2d 246
476 Mich. 180
In re Honorable Michael J. HALEY Judge, 86th District Court.
Docket No. 127453.
Supreme Court of Michigan.
July 31, 2006.

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Paul J. Fischer, Examiner, and Anna Marie Noeske, Associate Examiner, Detroit, for the Judicial Tenure Commission.

Collins, Einhorn, Farrell & Ulanoff, P.C. (by Brian D. Einhorn, Theresa M. Asoklis, and Regina T. Delmastro), Southfield, for Judge Michael J. Haley.


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:

Mr Benedict: You got to promise to go.

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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.

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 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

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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;

(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 relevant

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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 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.

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

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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...

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