In re Morrow

Decision Date13 January 2022
Docket NumberDocket No. 161839
Parties IN RE Bruce U. MORROW, Judge 3rd Circuit Court.
CourtMichigan Supreme Court

Dykema Gossett PLLC, Grand Rapids (by William B. Murphy and Mark J. Magyar ) for the Judicial Tenure Commission.

Collins Einhorn Farrell PC, Southfield (by Douglas D. Campbell and Trent B. Collier ) for Bruce U. Morrow.

BEFORE THE ENTIRE BENCH

Per Curiam.

This case comes to the Court on the recommendation of the Judicial Tenure Commission (JTC) that respondent, Judge Bruce U. Morrow, be suspended for 12 months without pay. Respondent has filed a petition challenging the form of the proceedings and requesting that this Court reject or modify the JTC's recommendation. We are unpersuaded by respondent's challenges to the proceedings, and we agree with the JTC's conclusion that respondent has committed judicial misconduct. However, we hold that a lesser suspension is appropriate and impose a six-month suspension without pay as well as a public censure.

I. FACTS

The JTC filed a formal complaint against respondent in August 2020. That complaint contained three counts of misconduct, all relating to respondent's comments to two women prosecutors during a murder trial the year before. Counts I and II alleged that respondent had used unnecessarily crass and sexual language while discussing the trial and providing feedback to the prosecutors. Count III alleged that he had a discussion with the prosecutors wherein he guessed their heights and weights, unbidden, while eyeing them.1

On September 17, 2020, the Court appointed retired Judge Betty R. Widgeon as master. She issued a scheduling order providing for a virtual hearing.2 The master found that in Counts I and II respondent had violated Canons 2(B), 3(A)(3), and 3(A)(14) of the Code of Judicial Conduct ; in Count III, the master found that respondent had violated Canons 3(A)(3) and 3(A)(14). Canon 2(B) provides, in relevant part:

A judge should respect and observe the law. At all times, the conduct and manner of a judge should promote public confidence in the integrity and impartiality of the judiciary. Without regard to a person's ... gender, ... a judge should treat every person fairly, with courtesy and respect.

Canon 3(A)(3) requires that a judge "be patient, dignified, and courteous to ... lawyers ...." And Canon 3(A)(14) states, in relevant part: "Without regard to a person's ... gender, ... a judge should treat every person fairly, with courtesy and respect."

The JTC issued its decision and recommendation for discipline on June 14, 2021. It largely agreed with the master's findings of fact and conclusions of law, but found that respondent had also violated Canon 2(B) by his conduct in Count III. The JTC found that respondent had committed misconduct in office by violating MCR 9.202(B)(1)(c) (defining "misconduct in office" to include "persistent failure to treat persons fairly and courteously") and MCR 9.202(B)(1)(d) (defining "misconduct in office" to include "treatment of a person unfairly or discourteously because of the person's ... gender"). After determining that the majority of the factors set forth in In re Brown , 461 Mich. 1291, 1292-1293, 625 N.W.2d 744 (2000), weighed in favor of a more serious sanction, the JTC unanimously recommended that respondent be sanctioned with a public censure and a 12-month suspension without pay.

II. ANALYSIS
A. STANDARD OF REVIEW

Though the JTC makes recommendations in judicial tenure cases, this Court alone ultimately has the authority to sanction judicial officers. Const. 1963, art. 6, § 30. Consequently, we review the JTC's findings and recommendation de novo. In re Servaas , 484 Mich. 634, 642, 774 N.W.2d 46 (2009). The allegations must be supported by a preponderance of the evidence. Id.

B. FACTUAL FINDINGS AND CONCLUSIONS OF LAW

We agree with the master and the JTC that the allegations in the formal complaint have been established by a preponderance of the evidence. Indeed, respondent generally does not dispute the substance of the allegations. We also agree with the JTC's conclusions of law. By his unnecessarily crass and sexual language, respondent did not "promote public confidence in the integrity and impartiality of the judiciary," Canon 2(B), nor was he "patient, dignified, and courteous" to the attorneys, Canon 3(A)(3), nor did he treat them "fairly, with courtesy and respect" without regard to their gender, Canon 3(A)(14). As to Count III, we agree with the JTC that by guessing the attorneys’ heights and weights unbidden while eyeing them, not only did respondent fail to be "patient, dignified and courteous" and to "treat every person fairly, with courtesy and respect" in violation of Canons 3(A)(3) and 3(A)(14), but he also violated Canon 2(B), which also requires that "[a] judge treat every person fairly, with courtesy and respect" "[w]ithout regard to a person's ... gender ...." Respondent committed misconduct in office by violating MCR 9.202(B)(1)(c) and MCR 9.202(B)(1)(d).

Respondent contends that he did not commit misconduct because in In re Hocking , 451 Mich. 1, 546 N.W.2d 234 (1996), this Court held that inappropriate comments said from the bench during sentencing did not constitute misconduct. In Hocking , the respondent explained the downward departure sentence he wished to impose on the defendant by offering offensive and misogynistic reasons as to why he believed the defendant's conduct did not merit a within-guidelines sentence. Id. at 10-11, 546 N.W.2d 234. The respondent also had a very heated exchange with the prosecutor at that same sentencing hearing. Id. at 7-9, 546 N.W.2d 234. And in another exchange, in a different case, the respondent challenged an attorney to explain why a motion was not frivolous, and then sanctioned her without letting her provide an explanation. Id. at 21-22, 546 N.W.2d 234.

Respondent's reliance on Hocking is misplaced. First, in Hocking this Court never stated that judges were entirely immune from discipline for comments said from the bench. Id. at 12, 546 N.W.2d 234 ("Whether relief on appeal is warranted or not, it does not follow that a judicial officer is immune from discipline for the manner in which the decision is articulated."); id. at 13, 546 N.W.2d 234 ("A judge's comments are not immune from censure simply because they are based on facts adduced at trial or events occurring at trial."). Second, given the facts in Hocking , specifically the comments at sentencing, the Court was understandably wary that judges should be found to have committed judicial misconduct every time they commit an appealable error of law. See id. at 11, 546 N.W.2d 234 ("[G]enerally, a judge is not subject to discipline for ‘appealable errors of law or abuses of discretion[.] "), quoting In re King , 409 Mass. 590, 601, 568 N.E.2d 588 (1991). That concern is not present in the instant case because respondent's comments are not an appealable error of law. Therefore, we are unmoved by respondent's argument and affirm the JTC's finding that respondent committed misconduct.

C. DUE PROCESS

We now turn to respondent's argument that our judicial disciplinary system violates his rights under the Due Process Clause because the JTC plays both a prosecutorial and an adjudicative role. The Due Process Clause of the United States Constitution provides that "[n]o State shall ... deprive any person of life, liberty, or property, without due process of law ...." U.S. Const., Am. XIV, § 1. Respondent rests his argument primarily on Williams v Pennsylvania , 579 U.S. 1, 136 S Ct 1899, 195 L.Ed.2d 132 (2016). In that case, a justice on the Pennsylvania Supreme Court participated in a postconviction proceeding involving a case in which he had previously, in his supervisory role as district attorney, approved the decision to seek the death penalty. Id. at 3-9, 136 S Ct at 1903-1905. The United States Supreme Court held that "under the Due Process Clause there is an impermissible risk of actual bias when a judge earlier had significant, personal involvement as a prosecutor in a critical decision regarding the defendant's case." Id. at 7-9, 136 S Ct at 1905. Applying that standard, the Court held that the justice's failure to recuse himself from the case violated the Due Process Clause. Id. at 10-12, 136 S Ct at 1907. Furthermore, though the justice's vote was not decisive, the Court held "that an unconstitutional failure to recuse constitutes structural error even if the judge in question did not cast a deciding vote" because the justice might have influenced his colleagues. Id. at 14-16, 136 S Ct at 1909.

Our Court has addressed due-process challenges to our judicial disciplinary scheme multiple times in the past, and each time, we have upheld the system, including the JTC's role, as constitutional. See In re Mikesell , 396 Mich. 517, 243 N.W.2d 86 (1976) ; In re Del Rio , 400 Mich. 665, 256 N.W.2d 727 (1977) ; In re Chrzanowski , 465 Mich. 468, 636 N.W.2d 758 (2001). Respondent contends that our prior caselaw is outdated though because it relied primarily on Withrow v Larkin , 421 U.S. 35, 95 S Ct 1456, 43 L.Ed.2d 712 (1975), a similar United States Supreme Court case regarding due process that preceded Williams . Respondent contends that under the newer precedent of Williams , our Court must hold that our judicial disciplinary system violates the Due Process Clause.

We disagree. It is true that our past cases looked to Withrow in determining the constitutionality of our judicial disciplinary system. See Mikesell , 396 Mich. at 530, 243 N.W.2d 86, quoting State Bar Grievance Administrator v Baun , 395 Mich. 28, 35, 232 N.W.2d 621 (1975) ; Del Rio , 400 Mich. at 691, 256 N.W.2d 727 ; Chrzanowski , 465 Mich. at 486, 636 N.W.2d 758. That is less than surprising, given that our cases predated Williams . However, Withrow is still good law. Williams did not overrule it. And Withrow still strongly supports the constitutionality of our judicial...

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  • In re Green
    • United States
    • Michigan Supreme Court
    • July 31, 2023
    ...fairness because in-person hearings are required to fairly assess the credibility of witnesses.[4] A similar argument was raised in In re Morrow. There we Respondent also contends that by holding a virtual hearing, the master violated MCR 9.231(B), which states, in relevant part, "The maste......

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