Mikesell, Matter of
| Decision Date | 27 May 1976 |
| Docket Number | No. 1,1 |
| Citation | 243 N.W.2d 86,396 Mich. 517 |
| Parties | In the Matter of Willard L. MIKESELL, 5th Judicial Circuit Judge. 396 Mich. 517, 243 N.W.2d 86 |
| Court | Michigan Supreme Court |
John L. Collins, Leo A. Farhat, Lansing, for appellant.
Robert Reese, Executive Director, Judicial Tenure Comm., Detroit, for respondent.
The Judicial Tenure Commission 1 (hereinafter the Commission) has recommended I. What are the limitations of this established consisting of nine persons selected for three-year terms as follows: Four members shall be judges elected by the judges of the courts in which they serve; one shall be a court of appeals judge, one a circuit judge, one a probate judge and one a judge of a court of limited jurisdiction. Three shall be members of the state bar who shall be elected by the members of the state bar of whom one shall be a judge and two shall not be judges. Two shall be appointed by the governor; the members appointed by the governor shall not be judges, retired judges or members of the state bar. Terms shall be staggered as provided by rule of the supreme court. Vacancies shall be filled by the appointing power.
the removal from office of the Honorable Willard L. Mikesell, 5th Judicial Circuit Judge. Pursuant to GCR 1963, 932.24, the respondent petitioned this Court to modify or reject the Commission's recommendation. We have reviewed the record De novo. 2 We deny the Commission's recommendation that Judge Mikesell be removed from office, but we conclude that he should be suspended from office for a period of one and one-half years without pay. 3
I. What are the limitations of this Court's review in Judicial Tenure Commission cases?
II. Are Judicial Tenure Commission proceedings quasi-criminal in nature?
III. Does the constitutional amendment creating the Michigan Judicial Tenure Commission violate the Federal and state constitutional mandates requiring a separation of powers, fair hearing and due process of law?
IV. Did the limitation of discovery imposed by the Master, following an In camera inspection of all materials, violate the respondent's constitutional rights?
V. Did the Master comply with GCR 1963, 932.15 which requires him to make 'findings of fact and conclusions of law'?
VI. What is the meaning of 'habitually intemperate' as used in 1963 Const., art. 6, § 30(2) and GCR 1963, 932.4?
VII. Does a De novo review of the record support the Judicial Tenure Commission recommendation?
After admission to the bar in 1953, respondent served as an assistant attorney general, as the Eaton County prosecuting attorney and engaged in the private practice of law. Respondent was elected to the circuit bench and assumed office on January 1, 1971.
The Commission filed a formal complaint against respondent on October 23, 1973. On November 28, 1973 the respondent filed a written answer to the formal complaint. On December 6, 1973, this Court appointed the Honorable Stewart A. Newblatt as the Master. 4 Prehearing conferences were held on January 8, 1974 and February 18, 1974. On February 28, 1974, respondent filed a motion with the Master seeking discovery of certain files, records, documents and writings in possession of the Commission. 5
Following a hearing on March 11, 1974, the Master denied the motion. On March 12, 1974, respondent was granted a subpoena duces tecum from the Ingham County Circuit Court. 6 The Commission filed an emergency motion to quash subpoena duces tecum on March 14, 1974 which was denied on March 18, 1974.
On March 18, 1974 Commission chairman, the Honorable John H. Gillis, appeared before the Master, without waiving any procedural rights, and brought in sealed containers all of the files and records specified in the subpoena. The Master ruled that the files and record would be examined by him In camera. Any portion deemed to be relevant or material to the issues stated in the complaint or to the hearing being conducted would be made available to the respondent. The Master stayed enforcement of his ruling to allow the Commission's counsel to seek review of his decision in this Court. On March 18, 1974 the Commission's counsel filed an emergency petition for superintending control from this Court.
In an April 9, 1974 order, we granted the Commission's petition for superintending control. We ordered that the subpoena duces tecum be vacated. The Commission's prayer to reverse, vacate, and quash the ruling and orders of the Master was denied without prejudice to subsequent review upon application to this Court by either party. 7
On April 17 and 18, 1974, the Master held an In camera inspection of all materials. Certain items were ordered delivered to respondent. Respondent did not further petition this Court for review of the Master's discovery rulings until the instant petition.
There were 21 days of hearings before the Master 8 with a concluding date of July 24, 1974. The Master's report was filed with the Commission on February 3, 1975. On April 10, 1975 both parties filed objections to the Master's report. 9
On May 20, 1975, the Commission filed its decision with this Court 10 concurring with the Master's finding and recommending removal. 11 On July 7, 1975 the respondent petitioned 12 this Court to reject the Commission's recommendation, for preliminary relief as to discovery, for stay of proceedings and for a motion to extend time. On August 1, 1975 the Commission filed a brief in opposition to the respondent's petition.
On August 27, 1975, we issued an order denying without prejudice respondent's petition for preliminary relief as to discovery. Respondent's petition for preliminary relief as to findings of fact was also denied. Respondent's petition for stay of proceedings was declared moot and denied.
We granted respondent's request with a 30 day extension of time. The case was added to the November, 1975 session on this Court's own motion.
The Michigan constitution contemplates 'individualized determinations by the Tenure Commission and this Court based on the entire factual context.' 13 Thus, we must look to all the circumstances in our determination.
Under Const.1963, art. 6, § 30(2), this Court may take action against a judge 'on the recommendation of the judicial tenure commission'. Thus, while the original complaint filed against the respondent contained 14 paragraphs of which 12 were allegations of misconduct, this Court concerns itself only with paragraphs 9--14 of the complaint. 14 The Commission adopted and confirmed the report of the Master in all respects. TheMaster found that the allegations of paragraphs 3--8 of the complaint were not proven. They are not part of the recommendation of the Commission and will not be considered by this Court.
This conclusion was also reached by the California Supreme Court in considering a similar situation in Spruance v. Commission, on Judicial Qualifications, 13 Cal.3d 778, 119 Cal.Rptr. 841, 532 P.2d 1209 (1975). In Spruance the California Court held:
'Among the arguments addressed to the court in this case is one of first impression which we feel should be answered directly. The examiners have argued that the dismissal by the Commission of certain of the specifications of misconduct by petitioner should not necessarily be accorded conclusive effect. The examiners contend that two of the dismissed specifications (counts I--G and I--I) were proven by clear and convincing evidence and constitute conduct for which the Constitution authorizes the imposition of discipline (see Geiler v. Commission on Judicial Qualifications, supra, 10 Cal.3d (201) at pp. 283--284, 110 Cal.Rptr. 201, 515 P.2d 1) notwithstanding the fact that the Commission, in stating that the specifications were 'not sustained,' chose not to issue any findings of fact and conclusions of law. The examiners maintain that because we have undertaken to review the record ourselves and to adopt our own findings of fact and conclusions of law, it is within our power to find proven any of the charges lodged against petitioner upon which evidence was received regardless of the Commission's disposition of such charges. We emphatically disagree.
.) (See fn. 5 at 119 Cal.Rptr. 844, at 5, 532 P.2d 1212--1213 (emphasis added)).
The respondent maintains that the proceedings for removal are quasi penal in nature. Such is not the case. It is important to characterize properly the proceedings herein because we are concerned not with punishing criminality but with maintaining standards of judicial fitness.
In a leading case 15, Geiler v. Commission on Judicial Qualifications, 10 Cal.3d 270, 110 Cal.Rptr. 201, 515 P.2d 1 (Cal.1973), the California Supreme Court stated that:
In Keiser v. Bell, 332 F.Supp. 608 (E.D.Pa.1971), the United States District Court considered allegations of denial of procedural due process in judicial removal proceedings before the judicial removal board and the Supreme Court of Pennsylvania found:
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