In re Servaas

• Decision Date: 31 July 2009
• Docket Number: Calendar No. 10.,Docket No. 137633.
• Parties: In re Honorable Steven R. SERVAAS, Judge, 63rd District Court.
• Court: Michigan Supreme Court

774 N.W.2d 46

484 Mich. 634

In re Honorable Steven R. SERVAAS, Judge, 63rd District Court.

Docket No. 137633.

Calendar No. 10.

Supreme Court of Michigan.

Argued March 4, 2009.

Decided July 31, 2009.

Paul J. Fischer and Thomas L. Prowse, Detroit, for the petitioner.

Miller Johnson (by John R. Muth, James S. Brady, and Monica C. Inhulsen) for respondent.

Opinion

WEAVER, J.

The Judicial Tenure Commission (JTC) recommended that this Court remove 63rd District Court Judge Steven Servaas (respondent) from office for vacating his office, as well as for judicial misconduct involving a comment and two drawings of a sexual nature. Because we conclude that the only appropriate forum to determine whether respondent vacated his judicial office is a quo warranto action filed by the Attorney General in the Court of Appeals, we reject the JTC's recommendation as to the vacation of office claim. Respondent's conduct concerning the comment and two drawings was unquestionably inappropriate; however, a majority of this Court concludes that respondent's conduct did not rise to the level of blatant judicial misconduct requiring the most severe sanction: removal from office. In this respect, we view respondent's actions as an aberration given his 35 years of apparent unblemished service as Judge of the 63rd District Court. Accordingly we impose public censure only.

I

Respondent is a judge of the 63rd District Court, 1st Division, in Rockford, Michigan. On February 14, 2008, the JTC filed Formal Complaint No 84,¹ alleging that respondent had committed judicial misconduct in violation of Const. 1963, art. 6 § 20;² MCR 9.104³ and MCR 9.205;⁴ and the Michigan Code of Judicial Conduct (MCJC), Canons 1,⁵ 2A-C,⁶ and 3A(3).⁷

Specifically, the first count of the complaint alleged that respondent vacated his judicial office in violation of Const. 1963, art. 6, § 20,⁸ when he changed his primary residence from Cannon Township, which is located in the 1st division of the 63rd District Court, to Ada Township, which is located in the 2nd division of the same judicial district.⁹ The second count of the complaint alleged that respondent failed to comply with statutory notification requirements when he failed to change his driver's license information and voter registration to reflect his move to Ada Township.

The third count of the complaint alleged that respondent engaged in sexually inappropriate conduct directed toward female court employees, citing three specific examples. In the first instance, it was alleged that respondent drew female breasts on a note that was attached to a court file. The drawing was made after a female clerk commented on the revealing dress of a woman who appeared in court. The second event concerned the drawing of a penis that appeared on a note attached to a court file. The third instance occurred during a retirement party for an employee at the 2nd division courthouse. While at the party, respondent commented on a university sweatshirt worn by a female clerk employed in the 2nd division. Respondent stated that the woman had "an awfully small chest" for the college indicated on the sweatshirt, and "should have gone to a smaller school like Alma," which would have fit her "small chest better."

On March 5, 2008, this Court appointed the Honorable Casper O. Grathwohl as master to hear the case. The master's report, issued on May 12, 2008, concluded that respondent vacated his judicial office in violation of Const. 1963, art. 6, § 20, when he changed his principal residence from the 1st division to the 2nd division of the 63rd District Court in August 2005. The master recommended that the second count of the complaint be dismissed.¹⁰ The master further concluded that respondent's "sexual doodles and sexual communication" constituted judicial misconduct and compromised the integrity of the court.

Respondent filed objections to the master's report. The JTC issued its decision and recommendation for an order of discipline on October 17, 2008. The JTC adopted the master's findings of fact and conclusions of law, with the exception of finding that respondent had moved to the 2nd division "as early" as 2000. In making this factual finding, the JTC relied on documentary evidence that was offered solely for impeachment purposes in the proceedings before the master, but was not substantively admitted.¹¹ On the basis of the findings of fact and conclusions of law, the JTC recommended that respondent be removed from office. The JTC further recommended that respondent be assessed fees and costs in the amount of $8,364.38 because respondent "engaged in deceit and intentional misrepresentation."

II

This Court reviews the recommendations and findings of the JTC de novo.¹² The standard of proof in judicial disciplinary proceedings is a preponderance of the evidence.¹³

A. VACATION OF OFFICE

Const. 1963, art. 6, § 20, provides that "[w]henever a justice or judge removes his domicile beyond the limits of the territory from which he was elected or appointed, he shall have vacated his office." The parties agree that the term "domicile" refers to respondent's primary residence. Furthermore, respondent admits that he changed his primary residence to the 2nd election division from 2005 to 2008.¹⁴ The dispute centers on the meaning of the word "territory." Respondent argues that "territory" refers to the entire 63rd judicial district, while the JTC argues that the term is limited to the election division within the district. Thus, when respondent moved his primary residence from the 1st election division to the 2nd election division of the 63rd District Court, the JTC maintains that respondent vacated his office, possessed no authority to continue to serve as a judge, and functioned as a "nonjudge masquerading as a judge."

However, this Court need not address which argument is correct, nor reach a conclusion regarding whether respondent vacated his office because our statutes, caselaw, and court rules provide that a quo warranto action brought by the Attorney General in the Court of Appeals is the only appropriate and exclusive proceeding to make the preliminary determination regarding whether respondent vacated or unlawfully held his judicial office.¹⁵

MCL 600.4501 provides that the Attorney General shall bring an action for quo warranto "when the facts clearly warrant the bringing of the action."¹⁶ MCR 3.306(A)(1) provides that the quo warranto action must be brought in the Court of Appeals when a person "usurps, intrudes into, or unlawfully holds or exercises a state office," or if a state officer "does or suffers an act that by law works a forfeiture of the office." If a quo warranto action claims usurpation of office, the judgment "may determine the right of the defendant to hold the office."¹⁷ Moreover, if a defendant in a quo warranto proceeding is found to unlawfully hold or exercise the office at issue, the defendant may be assessed fines¹⁸ and damages¹⁹ in addition to being ousted from office. Significantly, our caselaw has held for more than a century that "[t]he only way to try titles to office finally and conclusively is by quo warranto."²⁰

Notwithstanding, the JTC asks this Court to make the prefatory determination that respondent vacated his office under Const. 1963, art. 6, § 20, and that he consequently "was no longer a judge" and acted "without judicial authority," as a basis of removing respondent from office for judicial misconduct. However, this determination is precisely the issue to be resolved in a quo warranto action. While this Court could certainly review on appeal the decision made by the Court of Appeals in a quo warranto action,²¹ and could determine whether the conduct surrounding respondent's forfeiture of office rose to the level of judicial misconduct warranting judicial discipline,²² an original proceeding in the Supreme Court²³ is not the appropriate place to determine in the first instance whether respondent vacated his office. Rather, the law requires that this question be initiated by the Attorney General and resolved as an initial matter by the Court of Appeals.²⁴

Consequently, all evidence and testimony obtained during the proceeding by the JTC regarding whether respondent had vacated his office was obtained through an unconstitutional process because the JTC has no authority to proceed on the quo warranto issue or to determine whether respondent vacated his office. That determination can only be made by the Court of Appeals in a quo warranto proceeding, which could then be appealed to this Court. If a quo warranto action has been successfully brought in the Court of Appeals, and that decision is affirmed by this Court, only then may the JTC act on the appellate court decision and determine whether there has been any judicial misconduct associated with the determination of the Court of Appeals that a judge has vacated his or her office.

Moreover, had the Michigan Supreme Court decided in a quo warranto appeal that respondent had vacated his office, the Supreme Court would have had the power to remove respondent from office, and, had that happened, any JTC proceeding regarding judicial misconduct involving the vacation of office would have been moot because the Supreme Court had already exercised the most severe punishment. Simply put, the JTC had the cart before the horse.

Just as the JTC has neither the authority nor the power to decide whether a judge vacated his or her office, this Supreme Court does not have any constitutional authority to grant that authority and power to the JTC. The JTC only has the authority to let the quo warranto process lawfully proceed to a legal determination of whether or not a judge has vacated his or her office.

With regard to our conclusion in this regard, we reject Justice Markman's attempt to characterize the JTC as having made a "determination" to which this Court must defer. The JTC only has the authority to "recommend" disciplinary action....