Probert, Matter of, Docket No. 61331

• Decision Date: 19 June 1981
• Docket Number: No. 1,Docket No. 61331,1
• Citation: 411 Mich. 210,308 N.W.2d 773
• Parties: In the Matter of Honorable Charles V. PROBERT, Wyoming Municipal Judge. Calendar
• Court: Michigan Supreme Court

Page 773

308 N.W.2d 773

411 Mich. 210

In the Matter of Honorable Charles V. PROBERT, Wyoming Municipal Judge.

Docket No. 61331.

Calendar No. 1.

Supreme Court of Michigan.

June 19, 1981.

Joseph F. Regnier, Executive Director & Gen. Counsel, Detroit, (Stanley T. Dobry, Co-Examiner, Thomas L. Prowse, Christopher S. Boyd, Staff Atty., Detroit, of counsel), for the Judicial Tenure Commission.

Cholelte, Perkins & Buchanan, by Richard D. Ward and Robert A. Benson, for respondent.

RYAN, Justice.

We are presented in this case with questions pertaining to findings and recommendations of the Judicial Tenure Commission and the power of this Court as it relates to the discipline of members of the state judiciary. The questions are of first impression and arise because respondent Charles V. Probert, the subject of the proceedings before us, is no longer a judge.

Respondent maintains that his departure from judicial office since the institution of formal disciplinary proceedings divested the commission of jurisdiction over him and precludes this Court from imposing effective discipline. It follows, he contends, that we should reject the commission's recommendation of discipline. We find this argument unpersuasive.

In response to the conduct detailed in Part III of this opinion, the commission has recommended that respondent "be removed from judicial office and permanently enjoined from holding such office in the future". We conclude that because respondent is presently not a judge and because we are not expressly empowered to enter an injunction of the nature sought here, we cannot implement the specific recommendations of the commission.

We hold further, however, that respondent is not beyond our disciplinary reach and conclude that he should be censured and conditionally suspended for five years, regardless of any possible intervening election or appointment to judicial office.

The facts and procedural history of the case are fully delineated in Part I of Justice Levin's opinion.

I

In 1968, the people of Michigan amended the state Constitution and established the commission.

"(1) A judicial tenure commission is 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.

"(2) On recommendation of the judicial tenure commission, the supreme court may censure, suspend with or without salary, retire or remove a judge for conviction of a felony, physical or mental disability which prevents the performance of judicial duties, misconduct in office, persistent failure to perform his duties, habitual intemperance or conduct that is clearly prejudicial to the administration of justice. The supreme court shall make rules implementing this section and providing for confidentiality and privilege of proceedings." Const.1963, art. 6, § 30 (hereinafter § 30).

Section 30(2) prescribes four kinds of discipline: censure, suspension (with or without salary), retirement, and removal. Respondent avers that once a judge leaves office the question of judicial discipline is rendered moot and the commission's jurisdiction over him is lost. Implicit in the argument is the view that Sec. 30(2) discipline befits incumbent judges only. This is the position espoused by Justice Levin, who concludes that " § 30 authorizes the recommendation and imposition of discipline for incumbent judges only". ¹ Thus, upon a judge's resignation or the expiration of his term, our colleague holds, commission proceedings must cease and this Court's power to discipline that person under Sec. 30(2) evaporates. We do not read that provision so narrowly.

Indeed, it is difficult to conceptualize how one who does not hold judicial office could be suspended, retired, or removed from office. Nevertheless, we have on at least three occasions issued conditional suspensions that would have foreclosed the exercise of the prerogatives inhering in any judicial office to which the disciplined party might have been elected or appointed in the future, the condition being, of course, re-election or appointment to judicial office. In the Matter of Mikesell, 396 Mich. 517, 549, 243 N.W.2d 86 (1976); In the Matter of Del Rio, 400 Mich. 665, 672, fns. 3-4, 256 N.W.2d 727 (1977); In the Matter of Bennett, 403 Mich. 178, 200, 267 N.W.2d 914 (1978). The effect of those suspensions would have been to disengage the disciplined party from judicial power, but only had that person come to occupy judicial office again during the term of the suspension, and only to the extent that the terms of office and suspension coincided. Clearly, it is immaterial to a suspension of this nature whether or not the disciplined party holds judicial office when the suspension is imposed. ² A conditional suspension, therefore is not appropriately taken against incumbent judges only. ³

Furthermore, it is not at all difficult to conceptualize how one who does not hold judicial office could be censured. Respondent himself concedes the possibility. In light of the purposes of judicial discipline, ⁴ the censure of a former judge may be entirely expedient.

When we are confronted with a case of misconduct in office and the question of judicial discipline arises, we are obliged to make a judgment concerning the respondent's fitness to be a judge in light of his misconduct. Thus, a decision to enter an order of judicial discipline must be responsive to individual considerations. But our concern encompasses more: when one commits judicial misconduct he not only marks himself as a potential subject of judicial discipline, he denigrates an institution. ⁵ Accordingly, a decision on judicial discipline must also be responsive to a significant institutional consideration, "the preservation of the integrity of the judicial system". ⁶ Institutional integrity, after all, is at the core of institutional effectiveness.

When a judge charged with misconduct removes himself from judicial office to avoid the notoriety and ignominy incident to disciplinary proceedings and the possibility of sanctions, censure, if deserved, may be essential to "the preservation of the integrity of the judicial system", especially if that integrity has been critically undermined, because the alternative, silence, may be construed by the public as an act of condonation. ⁷ As earlier stated, respondent asserts that because he is no longer a judge the case is moot.

Because the possibilities of censure and conditional suspension remain after a judge charged with misconduct steps down or fails to be re-elected, a judicial discipline case does not become moot the instant the judge leaves office. Effective relief can still be granted; a controversy still exists. See generally Del Rio, supra, 400 Mich. 685-686, 256 N.W.2d 727; McCarthy v. Wayne Circuit Judge, 294 Mich. 368, 373, 293 N.W. 683 (1940); Detroit v. Killingsworth, 48 Mich.App. 181, 183, 210 N.W.2d 249 (1973). Establishment of a rule, therefore, calling for immediate termination of commission proceedings upon a judge's leaving office is unwarranted.

Such a rule would also be unwise. A judge charged with misconduct should not have the power, simply by leaving office, to short-circuit investigation of the allegations against him, leaving the proceedings incomplete and subject to the abrasion of time. ⁸ Events pertaining to alleged judicial misconduct and the recommendation of the commission with respect to those events should be as close in time as possible. There is good reason, therefore, for commission proceedings to continue until completed, notwithstanding a judge's resignation or failure to be re-elected after the filing of a complaint.

We are advised that as a matter of policy, "the (c)ommission has declined to act further after termination of a respondent's judicial office by resignation, by failure to be re-elected, or by death". ⁹ This policy no doubt developed in light of the commission's estimation of the most effectual allocation of its resources. Once an unfit or incompetent judge is separated from judicial power, the greatest danger has passed. Be that as it may, this Court should not and will not transform that policy into a fast, inflexible rule of law that would preclude contrary action when the commission, in its considered judgment and discretion, deems it appropriate. ¹⁰ Furthermore, to hold that this Court has no power to discipline a former judge would work undue mischief, which would be most apparent, for example, in a case in which a judge leaves office after his case is submitted to us and only the question of discipline remains. Such a holding would mean that at a time when the commission has completed its work and we have before us all the information and materials necessary to render judgment, our power to vindicate the integrity of the judiciary could nonetheless be negated by wholly irrelevant occurrences such as the expiration of the judge's term of office, his resignation, or the length of time we take to decide the case.

II

The question whether this Court is empowered to permanently enjoin respondent from holding judicial office in the future remains. Our authority to discipline members of the state judiciary flows from two sources, §§ 30 and 4 of Article 6 of the Michigan Constitution.

The four types of discipline § 30 empowers this Court to impose censure, suspension, removal, and retirement do not...