Dissenting opinion by LEVIN, J., filed February 3, 1993.
On April 12, 1991, this Court appointed retired Circuit Judge William R. Peterson as master to preside over the hearing of Formal Complaint No. 43, filed by the Judicial Tenure Commission
The twenty-five paragraph complaint centered on the following general acts of alleged misconduct:
2. Abuse of contempt power;
7. Installation of a telephone listening device;
8. Encouraging employees to commit perjury;
10. Failure to file reports with the SCAO.
These events spanned two and one-half years, from August 3, 1988, through January 8, 1991. The commission charged that the alleged acts
Beginning on October 7, 1991, the master heard testimony for nine days. Although he found that the commission failed to prove all the allegations of the twenty-five-paragraph complaint
A. Installation of a telephone listening device;
B. Abuse of contempt power;
E. Failure to file reports with the SCAO.
After hearing the testimony of witnesses and arguments of counsel, the master submitted his report on December 31, 1991. The commission met in open session to hear oral arguments regarding the master's report on March 9, 1992. It adopted in full the master's findings of fact and conclusions of law that provided the basis for its decision and recommendation of discipline issued on April 13, 1992.
The commission concluded that Judge Seitz was guilty of judicial misconduct that served to undermine
It becomes our task, by reviewing de novo the record of this case, to conclude whether "the conduct charged to Judge [Seitz] and found by the Commission is established by the record. The issues for our consideration, then, are whether that conduct is of a nature warranting discipline and, if so, whether removal, as recommended by the Commission majority or some other form of discipline should be imposed." In re Bennett, 403 Mich. 178, 184; 267 N.W.2d 914 (1978).
I. FACTS & ARGUMENTS
James McCauley Seitz has a history of being unable to work in an amicable environment with anyone, be it people of authority, co-workers, or employees. When he first became a judge of the Monroe County Probate Court in 1977, hostilities began almost immediately between him and the chief judge and only colleague on the bench, Harry
Joseph Costello, with the urging of respondent, was appointed to fill the vacancy. What began as an amicable relationship between the two judges quickly deteriorated. The situation was so hostile, the then Chief Justice of this Court appointed Court of Appeals Judge JOHN GILLIS to act as chief judge
Since that time the Monroe County Probate Court has been in a state of disarray. In referring to Judge Seitz and Judge Costello, the master summarized as follows:
* * *
It was in this milieu that the following episodes occurred.
A. TELEPHONE LISTENING DEVICE
In the summer of 1988, Mrs. Cameron, suspecting that her husband was involved with another woman, asked Judge Seitz to install a tap for recording conversations on her home telephone. She alleges that Judge Seitz accompanied her to Radio Shack, insisted on purchasing the equipment himself with his credit card, and assisted her in installing the telephonic eavesdropping device. Judge Seitz emphatically denies purchasing and installing such equipment.
He does not deny that his assistance was requested, but that he declined the request after conferring with his friend, Judge James Carr, a United States Magistrate for the Northern District of Ohio. Judge Carr informed Judge Seitz that recording a third-party conversation is a felony and thereafter, according to respondent, he had no
The master concluded that, although the testimony of the two was diametrically opposed, Mrs. Cameron's was the more credible. The commission agreed. They specifically found that Judge Seitz had violated the eavesdropping statutes, MCL 750.539c; MSA 28.807(3) and MCL 750.539f; MSA 28.807(6), by installing a telephone tape recording system at the home of Mrs. Cameron. In terms of specific grounds of misconduct, the master stated:
On the same topic, the commission concluded:
This alleged misconduct by Judge Seitz amounts to the only significant factual dispute in the matters at issue in this case — whether or not he participated in the installation of an eavesdropping device, an act that could constitute a felony.
Although we might be inclined to honor the request for additional testimony were we to accept the finding of an act that would constitute a felony, we need not do so. The undisputed facts demonstrate Judge Seitz' embroilment in his employee's marital dispute, use of his own recording device to surreptitiously record conversations, and knowledge that his employee also intended to commit and had commenced what he believed to be a felony. Such actions, while individually not necessarily constituting a specific charge, support our conclusions regarding Judge Seitz' overall lack of judicial temperament and sense of propriety as developed in this opinion.
B. ABUSE OF CONTEMPT POWER
In November of 1988, Judge JOHN GILLIS, acting as chief probate judge assigned by the Supreme Court, issued an administrative order that required youth home residents to have their hearings conducted at the youth home, a facility operated under the direction of the probate court for the detention and treatment of juveniles. The
In January 1989, when Judge Costello assumed control of the court after the assignment of Judge GILLIS expired, the superintendent of the youth center was Daniel Gentner. Judge Costello, who favored the administrative order, informed him that it was to be followed and that juveniles were not to be brought from the center to the courthouse for hearings.
Judge Seitz, who did not favor the order, issued orders in two cases contrary to Judge Costello's directions to Mr. Gentner.
Judge Costello then issued Administrative Order No. 1989-2, a verbatim copy of Judge GILLIS' order. He submitted the order in February 1989 to the State Court Administrator's Office for approval under
The order continued to be a topic of discussion between Judge Seitz, Judge Costello, and the SCAO. On May 5, 1989, Judge Seitz issued an order to the youth home director, stating that on May 10 the director, Mr. Gentner, was to release a juvenile female to her father after 9:00 A.M. for a hearing to be conducted in the courthouse that afternoon.
Judge Seitz sent deputies to the youth home and had Mr. Gentner arrested and brought to his courtroom. Judge Seitz conducted a "mock" hearing devoid of due process. When Mr. Gentner asked for counsel he was ignored. Judge Seitz ordered that Mr. Gentner call the youth home and have the girl released. Mr. Gentner respectfully
Judge Seitz argued that he was not required to follow the order because it was never published and he was never given a copy of it after it was approved. MCR 8.112(B) contains no requirement for publication of administrative orders or the giving of notice. Judge Seitz was aware that the order had been issued by Judge Costello and that it had been submitted for the SCAO's approval. He also was aware that both Judge Costello and Mr. Gentner considered it to be effective. He testified that he did not know the order had been approved by the SCAO, nor did he bother to make any inquiry with regard to whether the order had been approved. The master found that the testimony was "an outright falsehood or contemptuously indifferent to the necessities of judicial administration."
Judge Seitz argued that it was common practice to release children before a hearing if the recommendation was that they be sent home on probation. Judge Seitz states in his brief that it was his intention to permanently release the juvenile on probation, and, therefore, the juvenile was no
After making findings of fact on this topic, the master made the following observations:
In agreeing with the master's findings, the commission concluded that Judge Seitz abused his
The respondent would have us resolve this incident on the question whether he knew about the approval of the administrative order by the SCAO and whether this factual situation was in violation of the order. While we think both questions can be answered affirmatively, it is sufficient to find, as did the master and the commission, that the facts amply support the conclusion that Judge Seitz was intent upon subverting the rules of his court and the decisions of his chief judge with which he disagreed, and that in doing so he demonstrated a penchant for creating tension and contention in the courthouse.
The master and the commission have properly found, as do we, that the facts of this episode amount to a violation of the standards of judicial conduct and are deserving of sanction.
C. UNPROFESSIONAL RELATIONSHIP WITH AND HOSTILE ATTITUDE TOWARDS EMPLOYEES
The formal complaint charged that Judge Seitz encouraged his secretary, Mrs. Cindy Cameron, to be uncivil toward other court personnel, describing his colleagues and others in offensive and obscene language. Respondent's own witness, Ms. Nina Jordan, testified about his abusive language to her about Judge Costello's personnel and the Probate Registrar's office.
* * *
* * *
* * *
* * *
* * *
* * *
* * *
On February 7, 1990, Judge Seitz learned that Mrs. Cameron was going to remarry, whereupon he became visibly upset and began swearing. He left for the rest of the day leaving behind a note to Mrs. Cameron stating, among other things: "I'm sick — and if what someone downstairs [said] is true — I'm really goddamn sick and disappointed — more than you can possibly know."
On February 9, 1990, after ignoring her for two days, Judge Seitz sent Mrs. Cameron a series of notes and a tape. One of the notes indicated that Judge Seitz wanted to talk with Mrs. Cameron, but was too upset and did not want anything "bad" to happen. The master found that this was an implied threat to hurt Mrs. Cameron. Mrs. Cameron decided to resign and was gone within a week.
The master concluded and the commission agreed that Judge Seitz' intemperate conduct with respect to other court personnel and his insistence that Mrs. Cameron treat them in the same fashion is a violation of Canon 3B(2) of the Code of Judicial Conduct;
In this episode, the respondent, in his own words, gives more than ample testimony to the siege mentality that is at the root of many of his actions and to the harm that resulted. The commission has more than adequately satisfied its burden of establishing sanctionable conduct that cuts across a great number of judicial canons and professional standards. We agree with its conclusion.
D. WILFUL NEGLECT OF ADOPTION DOCKET AND REFUSAL TO RESPOND TO REQUESTS BY THE SCAO
The problems underlying this charge began with the departure of respondent's secretary, Cindy Cameron, who played a large role in processing adoption cases. After Mrs. Cameron left the court, the respondent asked Mrs. Irene Leonard to act as his secretary until he obtained a new one. Mrs. Leonard was the adoption investigator for the
Court procedure apparently went well for a brief period. When a case was ready for hearing, Mrs. Leonard would obtain a date from Judge Seitz and the matter would proceed. His relationship with Mrs. Leonard inexplicably soured in April 1990 after he returned from a vacation and learned that Mrs. Leonard was participating in Ms. Cameron's wedding. Mrs. Leonard testified that Judge Seitz avoided her, made himself inaccessible, literally would not talk to her, and would not respond to her requests for hearing dates. She made the situation known to the court administrator, Mr. Mario Pace.
During this period, Judge Seitz was complaining to Mr. Pace about Mrs. Leonard. He also complained that Mrs. Leonard was bothering him and not getting her paperwork right, but he never gave Mr. Pace any examples with respect to what she was doing wrong, nor did he ever tell Mrs. Leonard what she was doing wrong, if indeed she was doing anything wrong.
In place at the court was a "chain of command" administrative order, which directed that any job performance complaints a judge might have about any court employee were to be handled through the court administrator, Mr. Pace. It was Mr. Pace's responsibility then to deal directly with the employee. Additionally, court employees were not to communicate directly with the judges. Any complaints were to be directed to their immediate
The master found Judge Seitz' reluctance to speak to Mrs. Leonard compelled neither by the language of the order nor by common sense. He found Judge Seitz' attitude to be contrived, serving as a guise for his refusal to work with a court employee.
After the breakdown in communication between Judge Seitz and Mrs. Leonard, Judge Seitz began keeping files in his office to which Mrs. Leonard had no access. As a result, there were cases in which Judge Seitz set hearing dates or signed orders of which Mrs. Leonard would have had no knowledge.
Mrs. Leonard met with the Region I Court Administrator, Herb Levitt, on June 19, 1990, to voice her complaints about Judge Seitz' refusal to communicate with her. These complaints were relayed to personnel from the State Court Administrator's
Mr. Levitt and Mr. Ulrich met with Judge Seitz and discussed, among other things, the pending adoption cases. Judge Seitz indicated that Mrs. Leonard was not preparing the files properly.
On July 12, 1990, the State Court Administrator wrote to Judge Seitz, indicating that adoption matters were languishing and, with respect to a particular case, noting that the apparent refusal "to discuss the case or give direction to a veteran court employee who has attempted several times to discuss the case with you" was objectionable. Specific cases were listed as requiring action, and Judge Seitz was directed to hasten these cases and to apprise the State Court Administrator weekly in writing regarding the progress and dispositions made.
The State Court Administrator did not receive a single contact from Judge Seitz. She attempted calling him weekly until the end of August, but never reached him. He neither returned her calls nor reported by mail as requested.
Judge Seitz testified, however, that he never got any phone messages from the State Court Administrator. He claims that "the entire issue became one of confusion, missed cues and lack of communication between [himself], the SCAO and the Court Administrator Pace." Although he did not contact the State Court Administrator, he did discuss the matters with the Region I Court Administrator. In addition, the assistant Region I Administrator
Mr. Pace had advised Mrs. Leonard not to disturb Judge Seitz and to put everything to him in writing. Thus, she documented a number of cases in which she had submitted written requests to him to set hearing dates. These requests were not responded to by Judge Seitz, which led to another intervention by the State Court Administrator.
On October 31, 1990, the State Court Administrator again wrote to respondent about the growing delays in certain adoption cases. She included a list of cases about which she was concerned. Judge Seitz was asked to review the list at once and to advise her of the dates they would be scheduled for hearing or explain why they could not. The letter expressly indicated that a response was expected no later than November 9.
The SCAO received Judge Seitz' unsigned response, dated November 9, on November 14, 1990. Judge Seitz testified that he had spent a significant amount of time preparing his response; however, review of that response indicates that he made no reference to the twenty-one cases to which his attention had been directed. The master found that he had not reviewed the files and had set no hearing dates. Instead of responding to the requests made by the SCAO, Judge Seitz responded with a seven-page complaint about the performance of Mrs. Leonard. The conclusion of the letter was that he was referring the files to court director Pace for review and that he would schedule
After the November 14 letter, Judge Seitz made no further effort to communicate with the State Court Administrator or her staff. He testified at the hearing that any response beyond that letter would have been redundant. The SCAO found respondent's letter to be an inadequate response.
On November 16, 1990, State Court Deputy Administrator Ferry directed Assistant Region I Administrator Ulrich to inspect the adoption files pending in Judge Seitz' court and to schedule cases for him. Judge Seitz was attending a seminar in Florida and could not be reached; however, Mrs. Leonard checked his docket book and found January 8, 1991, to be an open date. All open files were reviewed by Mr. Ulrich, with the assistance of Mr. Pace and Mrs. Leonard. A list was made and faxed to Mr. Ferry, who then wrote a letter to respondent.
The November 16 letter stated that inspection of the adoption files showed no reason for postponement of scheduling the cases in question. The letter also indicated that certain cases were set for hearing on January 8, 1991, and that all parties had been notified. The letter listed other cases that did not require a hearing but only that Judge Seitz decide a motion or sign an order, and directed that
Judge Seitz did not respond to the letter, nor was any action taken to comply. The master found it quite clear that Judge Seitz did not even begin work on any of the files, and, although Judge Seitz argued that he did, he could not give an example of action taken on any files. The master found that review of the files would have taken only a few hours and that, had Judge Seitz done so, he would have been able to complete the cases by December 3 as requested by Mr. Ferry. Because Mr. Ferry heard nothing from Judge Seitz by December 3, 1990, he again wrote to Judge Seitz on December 4, requesting a report. This request was also ignored.
On December 12, 1990, Judge Seitz scheduled two pretrial conferences for January 8, 1991, the same day the adoption hearings were scheduled. Apparently, these cases were going to be dismissed by the prosecutor, but they were listed for trial to further the prosecutor's efforts to resolve them. Upon learning that Judge Seitz had scheduled two cases for trial on January 8, 1991, the court staff concluded that Judge Seitz was going to ignore the adoption cases scheduled by Deputy Ferry. The
On December 14, Deputy Ferry instructed Mr. Levitt and Mr. Ulrich to go to Monroe County to obtain the files for the January 8 hearings in order that an outside judge, if needed, could be apprised of the matters. When asked about the apparent conflict, Judge Seitz responded that there would be no problem in handling the adoption cases, that the juvenile matters would not take long.
Deputy Ferry decided to assign Judge Kirkendall, who had previously been approved by Administrator Hall as an outside judge to hear the adoption cases on a stand-by basis, in light of Judge Seitz' statement that his attorney had the files.
On December 17, 1990, Mr. Ulrich went back to
On December 21, 1990, Judge Seitz sent letters to at least six prospective adoptive parents indicating that their adoptions had been detained since the spring because of unsatisfactory preparation by a court adoption employee. The letter went on to state that he had obtained the files from the employee, reviewed them, corrected any mistakes, and set their cases for hearing so that adoptions would be complete before Christmas, but that the State Court Administrator, apparently upon learning that he had obtained the adoption files, had assigned the cases to an outside judge. Judge Seitz stated: "This action by a deputy State Court Administrator — who is neither a lawyer or [sic] a judge — has effectively prevented your adoption from being finalized before Christmas as I had attempted to do. I'm sorry that your case was one of the few which was caught up in the bureaucratic maneuvering." Five of the six known cases in which letters were sent were on the list of cases that Judge Seitz had been instructed to take action on by December 3. The sixth case was on the list of cases scheduled for January 8, 1991, but appeared to the master to be one that could have been concluded easily had Judge Seitz been willing to take appropriate action.
On January 8, 1991, Judge Kirkendall heard cases scheduled for that date. Judge Seitz was at the courthouse and could have heard the cases himself. The master found that it was not misconduct for Judge Seitz to schedule two bench trials on that day in light of his acknowledgment that he could handle the adoption hearings because the
Respondent denies that he failed or refused to perform his judicial duties. He argues that he was ready to schedule the cases for hearing within fourteen days of receipt of a certification from Court Director Pace that the cases were ready. Judge Seitz further testified that most of the cases at issue had no significant problems and could have been set for hearing in any event. The master found that respondent's failure to schedule the hearings was absolutely inexcusable.
Judge Seitz argues that findings by the master on this issue are against the great weight of the evidence and fail to consider the context in which Judge Seitz was forced to operate. Judge Seitz argues that he felt besieged, that it was more Mrs. Leonard's fault than his, and that he was not given the chance to clear his docket.
The master found and the commission agreed that Judge Seitz' behavior in the handling of the adoption cases constituted misconduct in office. More specifically, the commission found a persistent failure to perform judicial duties pursuant to MCR 9.205(C)(2);
The essentially undisputed evidence of this episode clearly demonstrates yet another example of the respondent's seemingly tireless and sometimes effective efforts to avoid being "set-up" while doing his best to isolate himself from people and procedures that offended him.
A great deal of time, personnel, and administrative effort was expended to bring about a routine disposition of a group of uneventful cases that could have been accomplished by engaging in the kind of routine communication that keeps courtrooms and court dockets functioning throughout the state.
We find, as did the master and the commission, that this episode constituted misconduct under the Code of Judicial Conduct and the Standards of Judicial Conduct as prescribed by MCR 9.205 and should subject the respondent to sanction.
The formal complaint charged that Judge Seitz consistently failed, refused, or neglected to file "Undecided Matters" reports as required by MCR 8.107. The respondent failed to file such reports due on May 1, 1989, September 1, 1989, January 1, 1990, May 1, 1990, and January 1, 1991. The September 1, 1990, report was filed November 26, 1990.
The SCAO cannot monitor a judge's case management if the judge neglects to file the reports required by the court rule. The master stated that refusing to adhere to the rule is a failure to discharge administrative responsibilities under the rule. The fact that the SCAO accepted tardy filings from the respondent does not excuse his failure to comply with the rule.
The commission found that this behavior constituted conduct clearly prejudicial to the administration of justice contrary to MCR 9.205(C)(4);
This is another factually undisputed charge of misconduct for failure to comply with an explicit routine administrative task. We agree with the commission's finding of misconduct and accept the recommendation that it should be the subject of disciplinary action.
II. MITIGATION DEFENSE
Judge Seitz urges this Court to consider mitigating factors in determining a remedy. He does not assert that his conduct was at all exemplary or in good faith, but asks that his conduct be viewed in the context of the circumstances at the Monroe County Probate Court. The master summarized Judge Seitz' argument as follows:
This Court has previously stated: "There is no doubt that `good faith' should be considered as a mitigating factor to the acts of misconduct but not as an affirmative defense to charges of misconduct." In re Laster, 404 Mich. 449, 461; 274 N.W.2d 742 (1979); In re Lawrence, 417 Mich. 248, 267, n 14; 335 N.W.2d 456 (1983).
Judge Seitz and the examiner read this quotation as stating the principle that mitigation cannot be used in determining misconduct but can be used to determine the discipline to be applied. There is certainly authority for this view.
We first note that the purpose of judicial discipline is not to punish, but to maintain the integrity of the judicial process.
In view of the fact that punishment is not a
As will be seen, there is no opportunity under the facts and circumstances of this case to mitigate the recommended action.
The specific instances of misconduct set forth are of varying degrees of seriousness resulting in varying degrees of harm to the operations and
However, in our considered judgment none of these instances of misconduct is an isolated event, nor to be sure the result of inattention, lack of knowledge, or incompetence, but rather part of a mosaic of wilful, contentious, destructive, and sometimes malicious behavior. We are prompted to conclude that this is an occasion when the totality of the behavior is larger than the sum of its ingredients.
Oftentimes we are required to take disciplinary action solely on the basis of the actions of a judicial officer, while only being able to speculate regarding the motivations behind the misdeeds. In this case, however, because of the respondent's penchant for recording his thoughts and feelings, we are afforded more than just a glimpse at these innermost thoughts and feelings. It is not a pretty picture.
After nine days of hearings, including a great deal of testimony from the respondent himself, the master, Judge William R. Peterson, found the respondent to be "a calculating, manipulative, arrogant man, without feelings for others." We cannot disagree.
While we take no pleasure in exposing the personal travails of a troubled brother in the judicial family, our responsibility for the administration of justice, including a fair and measured review of the allegations against him, requires no less.
As we examine the expressions of Judge Seitz, it conjures up specific impressions of belligerence, vindictiveness, hostility, bitterness, disrespectfulness, and considerable perversity of will and motive. These characteristics resonate discordantly when compared with the Code of Judicial Conduct, more specifically:
We conclude, therefore, that both by his actions and his expressed declarations as he went about the exercise of his duties, he has demonstrated an attitude, a mind-set, that leaves us firmly convinced that he is woefully unfit for judicial office. He not only exhibited a lack of the qualities from which judicial temperament springs, but he has exhibited a distinct pattern of injudicious temperament and conduct.
There are precious few canons of judicial ethics and standards of judicial conduct that have escaped the behavior of the respondent. However, because we view his behavior in its totality, we
We consider the respondent's behavior to be sufficiently serious and pervasive that his continuation in judicial office would be "clearly prejudicial to the administration of justice," and, therefore, adopt that part of the Judicial Tenure Commission's recommendation that removes the respondent from judicial office.
Pursuant to MCR 7.317(C)(3), the Clerk is directed to issue the judgment order forthwith.
CAVANAGH, C.J., and BOYLE, RILEY, GRIFFIN, and MALLETT, JJ., concurred with BRICKLEY, J.
The following opinion was filed with the Clerk of the Supreme Court on February 3, 1993, after the release of the opinion of the Court on February 2, 1993 — REPORTER.
LEVIN, J. (concurring in part and dissenting in part.)
The majority states that Monroe Probate Judge James McCauley Seitz, both by his actions and his statements, as he went about the exercise of his duties, had "demonstrated an attitude, a mind-set, that leaves us firmly convinced that he is woefully unfit for judicial office. He not only exhibited a lack of the qualities from which judicial temperament springs, but he has exhibited a distinct
The majority finds graphic support for some of these conclusions in a personal memo and cassette tape from Judge Seitz to his secretary, Cindy Paz Cameron,
The unstated assumption, reflected in the majority's statement that "Seitz has a history of being unable to work in an amicable environment with anyone, be it people of authority, co-workers, or employees,"
The master did not decide which of the two Monroe Probate judges was responsible for the discord and turmoil.
The record does not show that Seitz and former
After Judge Harry Seitz retired, Seitz discharged Harry Seitz' secretary/reporter. The majority adverts to an action filed by the secretary/reporter claiming wrongful discharge.
The record shows that amity prevailed after Costello was appointed a probate judge by the Governor, for about a year and a half, until signs were posted on Seitz' door charging him with absenteeism. Seitz claimed that Costello was responsible, and there is some evidence tending to support that claim;
The record shows that Seitz and Costello were indeed unable to work together after mid-1987. The record does not show, however, that, apart from the Seitz/Costello conflict, Seitz was unable to work with court employees, other than Daniel Gentner
The disparaging comments set forth in the memo and cassette tape from Seitz to Cameron concerning court employees and persons in authority do not support the majority's conclusion that
Seitz may not properly be removed from office for what he thought, or for what he said in a private, personal relationship. Discipline may properly be imposed only for misconduct, not for misspeech in a private, personal relationship.
When Seitz and Costello could not agree in late 1987 who should be chief judge, Court of Appeals Judge JOHN H. GILLIS was appointed chief judge of the Monroe County Probate Court by the then Chief Justice. Herbert Levitt, Region I State Court Administrator, and Judge ROBERT PAYANT, then State Court Administrator, had recommended that Seitz be appointed. GILLIS named Costello as chief judge pro tem on Seitz' recommendation.
Fully familiar with the "discord" and "turmoil" in the Monroe County Probate Court, Levitt and PAYANT made that recommendation, which suggests that Seitz had not, in their mind, "demonstrated an attitude, a mind-set, that [left them] firmly convinced that he is woefully unfit for judicial office," or that he had "exhibited a lack of the qualities from which judicial temperament springs," or had "exhibited a distinct pattern of injudicious temperament and conduct."
Marilyn K. Hall, State Court Administrator,
Four months before the September 12 letter, the Judicial Tenure Commission, on May 15, 1990,
The letter continued that "both" judges had "displayed behavior unbecoming members of the judiciary. Your petty bickering has not only required the attention of the Commission, but also the direct intervention of the Supreme Court."
The letter continued:
There is no evidence of "further episodes of this nature" or of "any repetition of such conduct." Hall, in her second letter, on December 11, 1990, requesting that the Judicial Tenure Commission investigate Seitz, said "we have been successful in eliminating the public and private feuding which plagued the court." (Emphasis added.)
The principal new allegations against Seitz, set forth in the December 11 letter, were his alleged failure to "cooperate" with Leonard, a Monroe County Probate Court employee, who prepared adoption cases for hearing and disposition, and his alleged failure to be more responsive to communications and directives from Hall and John Ferry, her deputy. Clearly, Hall regarded the new allegations against Seitz as of a different genre, as they were, and did not regard the evidence supporting this new allegation as evidence of "public and private feuding."
In another letter, also dated May 15, 1990, the commission wrote the Chief Justice and associate justices advising that over the last two years Seitz and Costello had "inundated the Commission staff with charges and counter-charges of impropriety," and that the commission had concluded that "[m]ost, if not all of the charges were either exaggerated or unsubstantiated," and that a thorough investigation had "yielded no evidence which would merit formal action by the Commission."
The Judicial Tenure Commission renewed its May 16, 1989, request that the Supreme Court assign one of the two judges to visiting status away from his court for a six-month period. The commission explained that it was uncertain whether its resolution of the "matter" without formal complaint would "discourage further bickering between the judges.... The Commission views both judges as being extremely immature."
Part of the problem was that the "Monroe County Probate Court simply does not generate enough work to occupy the time of both judges." Judges Seitz and Costello had both agreed that "there was not enough work at the court to keep them busy. Both judges admitted that either of them, working with the assistance of their full-time referee, could handle the entire case load." Court of Appeals Judge GILLIS, who served in 1988, advised the commission that the judges "had too much time on their hands. He further stated that the lack of work at the court provided them with the opportunity to meddle in each other's affairs."
The Judicial Tenure Commission said that assigning each of the judges away from Monroe County for six-month periods would enable them to fulfill their full-time judicial duties, would keep them busier than they are at their own court, and would hopefully reduce the time and energy that "they would have to perpetuate their feud."
In making this recommendation, the Judicial Tenure Commission, as fully or even more aware
Nothing occurred between May 15, 1990, and the filing of the formal complaint but Seitz' alleged failure to "cooperate" with Leonard in moving his adoption docket and to be more responsive to communications from Hall and her deputy, Ferry.
This Court did not adopt the advice of the tenure commission that one of the judges be assigned to visiting status away from his court for a six-month period.
Before turning to the five specific charges found by the majority to have demonstrated "a pattern of gross judicial misconduct," I note that there would be no need to publicize Costello's involvement in the "discord" and "turmoil" or the unfortunate events that occurred before the Judicial Tenure Commission's letters of May 15, 1990, or to advert to those letters but for the majority's portrayal of Seitz based in part on events that occurred before May 15, 1990, and the Judicial Tenure Commission's decision to reopen the incidents — in several of which Costello played a role — that preceded the post-May, 1990 specific charge of "wilful neglect of adoption dockets and refusal to respond to requests by the SCAO."
— "unprofessional relationship with and hostile attitude toward employees."
— "failure to file reports with the SCAO."
— "installation of a telephone listening device" in 1988.
— "Abuse of contempt power" in 1989.
One of the five specific charges asserted "[u]nprofessional relationship with and hostile attitude toward employees."
The personal memo and cassette tape, which came to light when Cameron commenced an action
There is, however, no evidence that, outside the privacy of his personal relationship with Cameron, Seitz spoke disparagingly about them, either in his courtroom, or otherwise in public or in private, or that, either in his courtroom, or otherwise in public or in private, he spoke disparagingly of court employees, except one report that he spoke in derogatory terms to a court employee about other court employees.
I agree with the majority that Seitz is subject to criticism and discipline for insisting, in the memo, that Cameron treat other court employees as adversaries, for demanding that she not attend a December, 1989, Christmas party scheduled by Costello, for threatening to discharge her if she did, and for the immoderate tone of his criticism, in the cassette tape, of Cameron's decision to marry Larry Cameron.
It does not appear that Cameron did, in fact, treat other court employees as adversaries.
The language of the private memo and cassette tape from Seitz to Cameron, replete with expletives and obscenities, was most unprofessional, inappropriate and unwise.
Theirs was a consensual relationship until Cameron decided to marry Larry Cameron. Seitz should have accepted her decision to marry him. Rather, he made and delivered to her the cassette tape, in February, 1990, expressing his distress, immoderately criticizing her decision, and expanding on the disparaging remarks set forth in his earlier memo of December, 1989.
Neither suspension nor removal is warranted because Seitz maintained a private, unprofessional personal relationship with his secretary.
Nor is suspension or removal warranted, on the basis that he evidenced, in private, personal communications, a hostile attitude toward court employees, absent misconduct in his courtroom or otherwise in public, or the repetition of such disparaging remarks at large. There is no evidence, nor did the master find, that Seitz translated the "hostile attitude" into actual abuse of court employees, either in public or in private. Misspeech in a private, personal relationship is not judicial misconduct.
Another specific charge is "failure to file reports
The record does not indicate that Seitz did, in fact, have a backlog of undecided cases within the meaning of the court rule.
Levitt, Court Administrator for Region I, which included Monroe, testified that it was customary to treat a failure to file such reports as resolved once they are filed. He said: "It was a policy of our office to accept — to wipe the slate clean of previous — at least of the Region 1 office, to wipe the slate clean of previously-owed reports, if the reports indicated that there were no cases outstanding."
Hall testified that approximately five percent of the approximately six hundred trial judges fail to file this report timely.
There are no reported cases in Michigan concerning the imposition of discipline for the failure to file such reports. The majority cites a decision of the Iowa Supreme Court, In re Carstensen, 316 N.W.2d 889 (Iowa, 1981). There, the judge was suspended without pay for twenty-nine days for failure to timely file more than fifty reports, some of which, when filed, omitted cases that should have been reported.
Another specific charge is "installation of a telephone listening device" in 1988.
I agree with the majority that this Court would not be warranted in affirming the master's finding that Seitz had installed a telephone listening device in Cameron's home.
I do not agree with the statement that "undisputed facts demonstrate Judge Seitz' embroilment in his employee's marital dispute, use of his own recording device to surreptitiously record conversations, and knowledge that his employee also intended to commit and had commenced what he believed to be a felony:"
Cameron testified that Seitz joined with her in installing a third-party listening device in her home, a felony. Rather than consider the evidence repeatedly offered by Seitz, which the master, the commission, and now this Court, refuse to admit into evidence, tending to impeach Cameron's credibility,
Seitz disputed Cameron's testimony that he had purchased and installed a third-party telephone listening device for her. There is no evidence that Seitz aided, abetted, encouraged or otherwise assisted Cameron in committing a telephone listening device felony other than the testimonial dispute that the Court decides not to resolve. The Court, therefore, is obliged to proceed on the basis that Seitz did not aid or abet Cameron in committing a felony.
It is, again, not an offense or judicial misconduct
The majority precedes its discussion of the "telephone listening device charge" with excerpts from the master's report concerning the relationship between Seitz and Cameron, stating that "[c]entral to an understanding of much of what transpired in the period during which the charges against respondent arose is his relationship with his secretary/court reporter."
The repeated focus on their relationship is not, however, "central to an understanding" of the charges, and tends rather to divert the reader from focus on the quality of the evidence claimed to support the several charges of misconduct, especially the telephone listening device charge.
The majority runs with the hare and hunts with the hounds in finding it unnecessary to resolve the testimonial dispute concerning the telephone listening device, in advancing other issues in lieu of the telephone listening device charge (embroilment in a marital dispute, surreptitiously recording his own conversations, and knowing that "his employee" intended to commit a felony), to which Seitz did not have an opportunity to respond before the Judicial Tenure Commission and to which this Court does not now provide Seitz an opportunity to respond, and in removing Seitz from the
Another specific charge is "[a]buse of contempt power."
Seitz was somewhat overbearing in the exercise of the contempt power, on May 9, 1989, against court employee, Daniel Gentner.
Seitz did not, however, abuse, in the sense of judicial misconduct, the contempt power.
The Judicial Tenure Commission reviewed this episode before writing Seitz and Costello on May 15, 1990, stating that this and other episodes did not justify the filing of formal complaints.
The majority's discussion of this charge recounts the disagreement between Costello/GILLIS and Seitz concerning whether all hearings concerning
The majority omits the portions of the administrative order, and of the May 5 order issued by Seitz, that are pertinent to Seitz' claim that he did not abuse the contempt power. Set forth in the margin is the full text of the administrative order
The administrative order and the May 5 order, read without the omitted language set forth in the margin, support the majority's conclusion that Seitz' May 5 order violated the administrative order. Read without the omitted language, the administrative order required that all dispositional hearings be conducted at the youth center, and Seitz' May 5 order set a dispositional hearing at the Monroe County courthouse.
The language omitted from the administrative order, states, however that the administrative order applies only to "any juvenile offender who is detained at the Monroe County youth center, or a resident of the Residential Treatment Program." Seitz' May 5 order directed Gentner, Superintendent of the Youth Center, to release Jane to her father's custody at any time after 9:00 A.M. on May 10, over five hours before the 2:45 P.M. hearing scheduled at the Monroe County courthouse.
Seitz testified without dispute that he and other Monroe probate judges frequently released children from the youth center without a dispositional hearing. Seitz' order to release Jane to her father was a perfectly valid order, not violative of the
The purpose of the administrative order was to avoid transporting to and from the courthouse residents of the youth center who would continue to be detained in custody. Seitz' order directing that Jane be released to her father five hours before the dispositional hearing did not conflict with the spirit of the administrative order in the circumstance that she would not be retained in custody after the dispositional hearing.
It would be perfectly clear that Seitz' directive that Jane be released to her father was not violative of the administrative order if Seitz had issued two orders: one directing that Jane be released on, say, May 9 to her father, and another directing that she appear on May 10 or even May 20 for a dispositional hearing, at which the conditions of her probation could be impressed upon her.
The record of the contempt hearing does not support the claim that Seitz "conducted a `mock' hearing devoid of due process."
Seitz should, I agree, have allowed Gentner to consult counsel when he asked to be provided an
Circuit judges often detain husbands/fathers or find them to be in civil contempt for failing to pay alimony and child support with less formality than one sees on the record in the instant case.
Gentner obtained counsel, who appeared in the afternoon, and was released from custody late in the afternoon. Seitz found that he was "purged of contempt. Not by his own doing, but by operation of the law [when Jane was released in compliance with the order]. And order that any — if — if — if that is legally admissible, order that the references to his arrest be deleted."
Costello had directed Gentner not to comply with Seitz' order. The majority apparently is of the view that Costello, as chief judge, could reverse Seitz' order; it states that "the facts amply support the conclusion that Judge Seitz was intent upon subverting the rules of his court and the decisions of his chief judge with which he disagreed...."
A chief judge does not have the authority to countermand an order of another judge not violative
Seitz stated at the contempt hearing that, during the day, he had communicated with the SCAO (but did not state with whom), "who advised this Court that other judges of the Court had absolutely no business whatsoever in interfering with this Court's disposition of a case that was assigned to this Court." I agree.
It is not claimed that on any other occasion Seitz violated the administrative order.
It is again noteworthy that before Hall urgently requested, on December 11, that the Judicial Tenure Commission investigate Seitz, the commission had decided not to file formal complaints concerning a number of charges, including charges against Seitz and Costello respecting the Gentner contempt episode, absent a recurrence of "further episodes of this nature" or a "repetition of such conduct," and that Hall, in her letter of December 11, said, in effect, that there had not been a recurrence of further episodes of this nature or a repetition of such conduct. The commission has not explained the basis on which it later concluded that Seitz' conduct in the Gentner matter deserves "the severest sanction." See In re Hague, 412 Mich. 532, 554-555; 315 N.W.2d 524 (1982).
The remaining specific charge is "wilful neglect of adoption docket and refusal to respond to requests by the SCAO."
The only charge of misconduct, as distinguished from misspeech in a private, personal relationship, that has substance, relates to Seitz' failure to "cooperate" with Leonard in moving his adoption docket and to respond to requests from the SCAO.
When Cameron left the employ of the Monroe County Probate Court in February 1990, Irene Leonard, another court employee, took over Cameron's task of preparing adoption cases for hearing.
Leonard had been the adoption investigator for both judges, but had no training or experience in preparing files for hearings. She studied the adoption code, reviewed old files, but was provided no assistance.
When Cameron was Seitz' secretary/recorder, there were no problems with the adoption docket.
Leonard testified that when Seitz returned from an April vacation, he avoided her, made himself inaccessible, and would not respond to her requests that he set hearing dates. The majority appears to have adopted Leonard's explanation that Seitz was retaliating because she stood up at Cameron's wedding.
In September, 1987, when Seitz was chief judge, he issued a "chain of command" administrative order that prohibited the judges from communicating directly with court personnel concerning their job performance and required that all such communications be sent to Pace, the court director (court administrator). Subsequently, after Costello became chief judge in 1989, he reaffirmed the chain of command order.
Seitz said that by reason of the chain of command order he could not tell Leonard what had to be done or how to do it. The master said that in fairness to Seitz "it should be noted that Judge Costello had made frequent complaints" that Seitz had violated the chain of command order. By May 15, Seitz was under the strictures of the Judicial Tenure Commission's injunction to avoid "further episodes of this nature" and "any repetition of such conduct" or face formal action.
On June 29, 1990, Seitz transmitted a memo to Pace stating that Leonard had problems with the
Seitz expressed to Levitt, who reported directly to Hall, his view that Leonard was not competent.
The master said: "Incredibly, then, no one met the responsibility of seeing that Mrs. Leonard was trained or performed her duties correctly." (Emphasis added.)
By letter dated November 9, 1990, addressed to Hall, Seitz expressed at some length the view that Leonard's work in adoption cases was deficient. A copy of that letter is attached as Appendix A.
Hall did not respond to Seitz' letter. Nor did she make a determination concerning Leonard's competence. It appears, rather, that she acted in reliance on Levitt and Ulrich, who, like Pace, disclaimed knowledge of adoption procedures and expertise, and who merely forwarded Leonard's views of when cases were ready.
The master found that "considerable animosity" developed between Seitz and Leonard. While it "may" have stemmed in part from Leonard's relationship with Cameron, it "may" have stemmed in part from a May 4, 1990, hearing. One of two putative fathers had not been served with a notice of hearing, and perhaps none had been attempted. Seitz claimed that Leonard lied under oath when
The master continued that while Seitz did not respond to Leonard's request to set hearing dates, "[a]doption proceedings did not grind to a complete halt." Before Seitz left on vacation in July, 1990, he gave Leonard dates for hearings in a number of cases. He began keeping files in his office to which Leonard had no access. Seitz set hearing dates and signed orders in cases of which Leonard had no knowledge.
The master found that, "[f]or whatever reason, Mrs. Leonard carried a grudge against the respondent," and complained to Pace. Through Pace, or on her own initiative, Leonard obtained the ear of Region I Court Administrator Levitt.
Levitt and Ulrich came to Monroe on June 19 to discuss other problems. Leonard asked Pace to arrange for her to meet with Levitt. She presented a list of adoption cases that "she felt were being neglected" by Seitz. Levitt forwarded her complaints to Hall. The list was forwarded, said the master, without consulting Seitz or seeking his "input" or "views."
On July 12, 1990, Hall wrote Seitz stating that "[a]doption files that in the past were routinely and expeditiously disposed of in your courtroom are now experiencing delay according to reports
Hall testified that she telephoned Seitz weekly during the summer, and that Seitz did not return her calls. Seitz testified that he did not learn of the calls and that there was no record of any messages from Hall.
The master found that Seitz ignored the letter from Hall dated July 12. He said that Seitz' reaction "while not excusable, is understandable. The Administrator was listening to an employee that he considered to be incompetent but was paying no attention to him. He felt aggrieved."
Levitt and Ulrich continued to monitor events in the Monroe County Probate Court. On August 31, 1990, Levitt sent a memo to Hall stating that
On September 12, Hall wrote the tenure commission requesting an investigation of Seitz' conduct. The letter said that
Electronic surveillance of the jury room was not charged in the formal complaint filed by the Judicial Tenure Commission.
Seitz filed a report of undecided cases in November, 1990.
The delays in Seitz' adoption docket referred to in Hall's letter of July 12 appear to have been resolved by August 31, before Hall wrote the tenure commission on September 12. Hall had, indeed, received further complaints from Leonard, the merits of which had not, however, been subjected
The master said that nothing eventful occurred in adoption cases during the two-month period between August 31 and October 31. Leonard continued, however, to complain to Hall, and provided a list of cases that, in her opinion, had been neglected.
By letter dated October 31, 1990, Hall provided Seitz with a list of seventeen cases and asked that he advise her by November 9 at the latest the dates these cases would be heard or why they could not be scheduled for hearing or other action.
Seitz responded by unsigned letter dated November 9 (Appendix A), which was not received until November 14. The letter did not respond directly to Hall's request that he set hearing dates.
Seitz wrote at length stating why he was not responsible for any delay. He said that the solution was no longer under his authority or control. He said that formerly hearing dates were generally set within fourteen days, and claimed contested hearings proceed faster on his docket than on the dockets of most other probate judges.
Seitz attributed any delay to his concern that the case be fully and properly prepared when litigants appear on a hearing date; persons who take off time from work to come to his courtroom for a hearing should not have to return another day because all the necessary paperwork had not been completed because of the "laziness and/or ineptitude of a Court employee."
On November 16, less than thirty-six hours after Hall received Seitz' November 9 response, Ulrich was directed to return to Monroe and set an adoption docket for Seitz, who was out of the city. A secretary checked Seitz' calendar and concluded that January 8 was an open date. Leonard provided Ulrich with a list of files which was faxed to Deputy Court Administrator John Ferry who, that day, within thirty-six hours of the SCAO's receipt of the letter dated November 9, wrote Seitz scheduling nine cases for hearing on January 8, referring two cases to a referee and directing that Seitz, no later than December 3, should decide motions for confirmation or sign an order in seven cases with
The master found that all open files were reviewed on November 16 by Ulrich and Pace with Leonard. Pace and Ulrich disclaimed, however, any knowledge of the procedures or expertise. Similarly, Ferry disclaimed knowledge or expertise. It is apparent that all three acted largely on the advice of Leonard.
Seitz did not enter the orders by December 3. When Ferry's November 16 letter arrived, Seitz was in Florida attending a judicial seminar. He returned to work Friday, November 23, the day after Thanksgiving. This left the week of November 26, and December 3 itself, six or seven business days.
On December 3, Seitz met with James Carr, a friend and former law professor, who then was a Magistrate in the United States District Court in Toledo. Carr testified that he advised Seitz that he should treat the communications "as though somebody is out to get you."
Clearly, Seitz should have responded, at least by telephone, by December 3 or immediately upon receipt of Ferry's follow-up letter of December 4 requesting information concerning the status of the seven cases.
Seitz was no doubt at fault in failing to be more responsive to communications from Hall and Ferry, and in failing to find a way to reach an accommodation satisfactory to them.
Seitz could and should have scheduled a number
In fairness to Hall and also to Seitz, the scope of Hall's authority and responsibility under the order appointing her Special Court Administrator for the Monroe County Probate Court was far from clear. This Court's order appointing her was deliberately vague in that regard.
It has not been claimed or determined by the SCAO, the Judicial Tenure Commission, the master, or this Court, that Seitz' complaints about Leonard's work performance were unfounded and lacking in merit. No judge or other person familiar with the day-to-day work of a probate court in adoption cases was called to testify concerning either Leonard's or Seitz' work performance. Yet, Seitz is removed from office, at least in part, possibly largely, because of his discourtesy to Hall and her deputy Ferry, and claimed defiance in failing to be more responsive to communications and directives from Hall and Ferry concerning
Seven days after Ferry's follow-up letter of December 4, on December 11, Hall filed with the Judicial Tenure Commission a six-page request for investigation of Seitz. She acknowledged that his MCR 8.107 report concerning undecided cases, due in September, 1990, had been filed on November 26.
Hall attached copies of Seitz' letter of November 9 and her letter of November 16, adding that "[t]o date we have received no word regarding this group of cases."
Cameron had filed an action in the United States District Court on November 21, 1990, and had provided the news media and Hall with copies of the graphic personal memo and cassette tape. Hall quoted therefrom and also attached a copy of an article that appeared in the Detroit News on November 21.
Hall also enclosed a copy of the complaint filed by Cameron in which Cameron claimed that Seitz had invited her to go out with him on his boat, run off with him to California, travel with her son to Florida at the same time he was vacationing there with his family, told Cameron's sister that Cameron was making a big mistake and that he would kill Cameron's husband, Larry Cameron, if he hurt Cameron.
The complaint also alleged that Seitz had since barred Larry Cameron, a court employee, from his courtroom and refused to recognize his recommendations
Hall said that Seitz had "consistently refused to cooperate on administrative matters and his behavior continues to seriously erode the ability of the court to operate effectively, efficiently, and fairly."
Hall expressed the opinion that if Seitz were to continue to fail to "cooperate in administrative matters," that would "negatively affect the rights of parties who come before the court...." In order to "correct the situation," Hall said that it was "imperative that the Judicial Tenure Commission act as swiftly (emphasis in original) as possible to fully investigate this matter and take appropriate action." (Emphasis added.)
It is clear that decisions were being made at the highest level of the judicial system to move against Seitz, at least in part because he did not "cooperate" with Leonard. Seitz sensed this, and events were to bear out that impression.
The letter to the tenure commission was dispatched
The master said that either Leonard or Pace learned of the additional cases scheduled for January 8, "and, without consulting with respondent [Seitz], leaped to the conclusion that this meant that respondent was going to ignore the adoption cases scheduled for Jan. 8th. This belief was obviously communicated to the [State Court Administrative Office] for, on Dec. 13, a copy of respondent's Jan. 8th docket was faxed from Pace's office to the SCAO."
Hall testified that when she learned additional cases were scheduled for January 8, she became "upset." The next day, December 14, pursuant to Hall's instructions, an order was entered assigning Probate Judge Kirkendall of Washtenaw County to be a Monroe County Probate Court judge to "assist with docket" in nineteen adoption cases identified in the order of assignment. Hall had previously arranged for Judge Kirkendall to be available. The stated reason for the assignment was "delay due to paperwork."
Also on December 14, Levitt and Ulrich were dispatched to Monroe to pick up the files in the adoption cases. Seitz told Levitt and Ulrich that the files were not at his office, but at his attorney's office. The files were actually in Seitz' office. Seitz testified that he wished to make photocopies before turning them over to the State Court Administrator. The files were not turned over to Ulrich until Monday, December 17.
When Levitt and Ulrich were in Monroe to pick up the files on December 14, Seitz advised them that he would be able to take care of the cases on January 8. They, nevertheless, insisted that the files be turned over to them.
Ulrich acknowledged that when, on November 16, he set January 8 as the date for hearing those cases, he told Seitz' secretary that other matters could be scheduled for that day.
When January 8 arrived, Seitz heard the two delinquency matters before 9:00 A.M. He was available and could have heard the adoption cases scheduled for that date.
The master found that "the SCAO handling of the assignment of Judge Kirkendall for the Jan. 8, 1991 hearings leaves something to be desired," and that the record "does not establish a refusal to handle the cases on Jan. 8th."
While the master found that Seitz had failed to "move the [adoption] cases," the length of the delay in particular cases is unclear. The cases generally had been filed less than six months before.
Seitz had concluded, on the basis of claimed errors and omissions by Leonard, that he could not
It appears further that Leonard was not trained and no effort was made by Pace or SCAO to provide her with the requisite training. And, before directing Seitz regarding the performance of his office, no effort was made to determine whether Leonard was performing her duties correctly. None of the persons who examined the files at Hall's direction, Levitt, Ulrich, or Ferry, had knowledge of procedures or expertise. Seitz was, nevertheless, directed, on the basis of Leonard's advice that the files were in order, to enter orders, decide motions, and set cases for hearing.
Noteworthy in this connection is that the master found that "Leonard carried a grudge against" Seitz. The master also found that the charge that Seitz "criticized her work without cause" was "not substantiated by any evidence." (Emphasis added.)
The Judicial Tenure Commission and the majority find misconduct because Seitz failed to "cooperate" and work with a "veteran employee," although, as the master put it, "no one met the responsibility of seeing that Mrs. Leonard was trained or performed her duties correctly."
As to the cases set for hearing on January 8, I repeat that the master found that the record "does not establish a refusal to handle the cases on Jan. 8th."
Turning to the cases that Ferry directed Seitz to decide by order on or before December 3, one had
While Seitz might possibly have been remiss in not setting one or more of the five motions for confirmation for hearing sometime in October to December — but no one qualified to express such an opinion gave evidence — Seitz was clearly justified in refraining from acting on motions for confirmation without a hearing. He might, following such a hearing, have even been justified in delaying confirmation of adoption well beyond December 3 or January 8, depending on his good-faith assessment of the "best interests" of the child.
The statute provides that one year after the entry of an order terminating parental rights, the court may enter an order of adoption and that upon motion (a motion for confirmation) "the court may waive" the one-year period if the waiver is in the best interests of the adoptee, or extend the one-year period.
The majority does not explain, nor has the tenure commission, on what basis Seitz can be disciplined for not having entered orders on or before December 3 confirming the adoptions when, under the statute, he is required to make a judicial determination of the best interests of the child and might have been justified in delaying confirmation for an additional six months or an additional year.
I do not, accordingly, agree that Seitz wilfully neglected the adoption cases. There was some
The majority states: "As we examine the expressions of Judge Seitz, it conjures up specific impressions of belligerence, vindictiveness, hostility, bitterness, disrespectfulness, and considerable perversity of will and motive. These characteristics resonate discordantly when compared with the Code of Judicial Conduct...."
The only instance of misconduct claimed to have constituted abuse of a person in or out of court was the charge that Seitz abused his contempt power in respect to Gentner.
Seitz was not otherwise found to have abused, in court or out of court, any litigant, lawyer or other person.
The delays in the adoption docket consist of less than ten cases. The length of the delay has not been quantified, but it is clearly less than two months. Hall did not evaluate the files. Nor did Ferry. Nor did Ulrich. Nor did Levitt. Nor did Pace.
It is not claimed that Seitz delayed any other part of his docket, in estate or mental incompetency cases, or otherwise.
While Seitz' idiom was lurid in private, his conduct pales almost into insignificance in comparison to the conduct of judges who have, in a number of cases, abused litigants and lawyers in the courtroom, neglected, over an extended period of time — sometimes years — their dockets, who have been merely admonished or privately censured (see Appendix B) or, on a few occasions, in especially egregious cases, subjected to suspensions of a year or more.
In In re Bennett, 403 Mich. 178; 267 N.W.2d 914 (1978), this Court suspended a judge from office for one year without pay on findings that he knowingly and wilfully violated an order of superintending control that visiting judges were to make determinations of indigency and appointments of
I do not wish to be understood as saying that the Judicial Tenure Commission is bound by the precedents of the levels of discipline recommended and imposed in the past. But there is no evidence that the Judicial Tenure Commission has decided to increase the level of discipline generally.
The recommendations of the Judicial Tenure Commission in the instant case are not evidence that it has raised the level of its recommendation generally because one of the findings of misconduct is the finding that Seitz committed a felony, a finding that the majority does not adopt.
Judges have generally been removed from office in Michigan only for criminal conduct.
It is manifest from the discipline recommended by the commission in other cases — see Appendix B — that, at least judging from past recommendations, the commission could not, consistent with past recommendations, have recommended removal for the offenses that it found Seitz had
The constitution provides that this Court is empowered to impose discipline on the "recommendation" of the Judicial Tenure Commission.
The discipline recommended and imposed is so disproportionate compared to the misconduct — absent a finding, adopted by this Court, that Seitz committed a felony or aided and abetted the commission of a felony — that the cause should be remanded to the Judicial Tenure Commission for a new recommendation of discipline on the assumption that Seitz did not commit a felony.
November 9, 1990
Dear Ms. Hall:
More serious events have occurred.
PARTIAL HISTORY OF DISCIPLINE FROM JUDICIAL TENURE COMMISSION REPORTS:
SAMPLING OF ADMONITIONS ISSUED
Respondents were admonished for
Judge Seitz also moved to admit the transcript of a tape recorded conversation he had with Cindy Cameron establishing that he did not know how to install a telephone listening device. The commission also denied this motion.
Judge Seitz asserts that the proposed testimony of Terrence Gallagher is highly significant because it directly related to the credibility of Cindy Cameron. Judge Seitz argues that Cindy Cameron has commenced two lawsuits against him and that the statement is the admission of a party-opponent under MRE 801(D)(2), and therefore, not objectionable hearsay.
The master ruled that the evidence documenting Judge Costello's complaints was not admissible, sustaining hearsay and relevance objections by the examiner. We are not convinced that any error in the use of the master's discretion in excluding this evidence was, under all of the circumstances of this case, harmful. As we said in Jenkins, "The record contains more than ample evidence... to support the findings of the master and commission." In re Leon Jenkins, 437 Mich. 15, 28-29; 465 N.W.2d 317 (1991) (citing MCR 9.203[D]).
The commission also denied Judge Seitz' motion to hear testimony from Dr. Douglas Sargent, who testified before the master. We do not see this as an abuse of discretion.
We think the voluminous testimony on this issue rendered any possible error regarding the master's exclusion of this exhibit harmless.
We do not find an abuse of discretion in the ruling of the master. Most of the communications were to initiate complaints with the SCAO and were not in response to SCAO inquiries and directives. As to those relatively few communications that were directly responsive, we find their omission from evidence to be harmless in view of the large number of SCAO inquiries that were not responded to.
The majority concludes (ante, pp 627-628) that Seitz committed acts that constituted misconduct in office, persistently failed to perform his judicial duties, is habitually intemperate, and that his conduct was clearly prejudicial to the administration of justice.
The terminology follows the language of the constitutional provision authorizing discipline of a judge on the recommendation of the Judicial Tenure Commission:
There is no finding, nor evidence sufficient to support a finding, that Seitz abused alcohol in the sense referred to in the Constitution as construed in Mikesell.
Also noteworthy is that Cameron's husband, Darwin Paz, filed with the Judicial Tenure Commission, on the basis of statements made by Cameron, serious charges against two judges other than Seitz, which the Judicial Tenure Commission did not pursue presumably because it found them to lack credibility.
It is mystifying on what basis the Judicial Tenure Commission found Cameron to be credible in this one instance, especially in the face of the compelling exculpatory evidence referred to in ns 8-10 of the majority opinion, which the Commission and the master refused to consider.
Also, Cameron gave somewhat contradictory testimony on the telephone listening device issue in the federal court action she filed against Seitz and Monroe County.
Seitz had a secretary in his office only intermittently.
At the trial, Hall was not asked to particularize whether she called Seitz on the private line or public line in his office, or through the court's central switchboard, or with whom she may have left messages for Seitz. It appears that Hall may have tried to reach him through Pace, and that when she did so, he responded that the judge was not available. Pace was not asked whether he had received calls from Hall for Seitz, and, if so, whether he had given Seitz any message.
The master also said:
In re Kirby, 354 N.W.2d 410 (Minn, 1984), the judge was disciplined in part for being late to his own court twenty percent of the time, causing numerous adjournments. He was publicly censured.
In re Steinle, 653 S.W.2d 201 (Mo. 1983), the judge was suspended for two weeks for dilatoriness in rendering judgment in thirteen cases.
In re Anderson, 252 N.W.2d 592 (Minn, 1977), the judge was suspended for three months, in part for delaying judgment in twelve cases for more than ninety days. One of those cases had been taken under advisement in 1969.
In re King, 399 S.E.2d 888 (W Va, 1990), a family law master took over nine months to render a decision on a motion for increase in child support. When questioned by the litigants, he misrepresented that the decision had been issued. The petitioner in the matter lost additional wages as a consequence of having to attend additional hearings, and was deprived of a fair child support payment for nine months. The master was censured.
In re Kohn, 568 S.W.2d 255 (Mo, 1978), the judge took over four years to decide one case, and twenty-one months to decide another. The judge was censured.
Judicial Qualifications Comm v Cieminski, 326 N.W.2d 883 (ND, 1982) reports a story of a judge who had inactive cases on his docket since 1975. In addition, a number of small claims matters were pending beyond the statutory limit, and several cases submitted for decision over one year before were still undecided. The judge was suspended for three months without pay, and ordered to consult on a regular basis with the state court administrator concerning his docket upon his return to the bench.
Numerous other cases reflect that delay has not been thought to be sufficiently egregious to warrant removal.