Opinion
2003-21.
March 20, 2007.
On order of the Court, notice of the proposed changes and an opportunity for comment in writing and at a public hearing having been provided, and consideration having been given to the comments received, the following amendment of Rule 9.207 of the Michigan Court Rules is adopted, effective May 1, 2007.
[Deletions are indicated by strikeover and insertions by underline.]
Rule 9.207 Investigation; Notice
(A) [Unchanged.]
(B) Investigation. Upon receiving a request for investigation that is not clearly
unfounded or frivolous, the commission shall direct that an investigation be
conducted to determine whether a complaint should be filed and a hearing held. If there is insufficient cause to warrant filing a complaint, the commission may:
(1) dismiss the matter,
(2) dismiss the matter with a letter of explanation or caution that addresses the respondent's conduct,
(3) dismiss the matter contingent upon the satisfaction of conditions imposed by the commission, which may include a period of monitoring,
(4) admonish the respondent, or
(5) recommend to the Supreme Court private censure, with a statement of reasons.
If a request for investigation is filed less than 90 days before an election in which the respondent is a candidate, and the request is not dismissed forthwith as clearly unfounded or frivolous, the commission shall postpone its investigation until after the election unless two-thirds of the commission members determine that the public interest and the interests of justice require otherwise. (C) Adjourned Investigation. If a request for investigation is filed less than 90 days before an election in which the respondent is a candidate, and the request is not dismissed forthwith as clearly unfounded or frivolous, the commission shall postpone its investigation until after the election unless two-thirds of the commission members determine that the public interest and the interests of justice require otherwise. (C) (D) Notice to Judge.
(1)-(4) [Unchanged.]
(5) If the commission admonishes a judge pursuant to MCR 9.207(B)(4):
(a) The judge may file 24 copies of a petition for review in the Supreme Court, serve two copies on the commission, and file a proof of service with the commission within 28 days of the date of the admonishment. The petition for review, and any subsequent filings, shall be placed in a confidential file and shall not be made public unless ordered by the Court.
(b) The executive director may file a response with a proof of service on the judge within 14 days of receiving service of the petition for review.
(c) The Supreme Court shall review the admonishment in accordance with MCR 9.225. Any opinion or order entered pursuant to a petition for review under this subrule shall be published and shall have precedential value pursuant to MCR 7.317.
(D) (E) [Relettered but otherwise unchanged.]
(E) (F) [Relettered but otherwise unchanged.]
Staff comment: This amendment allows a judge admonished by the Judicial Tenure Commission to request review of the admonishment by the Supreme Court. The amendment in subsection B adds a letter designation and descriptive heading to the provision relating to adjournments granted for requests for investigation filed within 90 days of an election in which the respondent is a candidate.
The staff comment is not an authoritative construction by the Court.
I concur in the order, which adopts revisions to MCR 9.207 that allow judges to seek review in this Court of certain decisions of the Judicial Tenure Commission (JTC). The JTC, under MCR 9.207(B)(4), already has the power to admonish a judge in lieu of filing a complaint. Accordingly, at this time, I favor the addition of MCR 9.207(D)(5), which allows judges to appeal such decisions to this Court. In the meantime, however, I would engage in further study of the imposition of private sanctions by the JTC under MCR 9.207(B) and whether those sanctions are lawful, desirable, and workable.
I dissent from the amendment of this court rule, MCR 9.207, allowing for a judge subject to admonishment by the Judicial Tenure Commission (JTC) to ask the Supreme Court to review the matter, because MCR 9.207(B)(4) itself is unconstitutional. MCR 9.207(B)(4) is unconstitutional because it authorizes the JTC to "admonish" judges.
MCR 9.207(B) states:
(B) Investigation. Upon receiving a request for investigation that is not clearly unfounded or frivolous, the commission shall direct that an investigation be conducted to determine whether a complaint should be filed and a hearing held. If there is insufficient cause to warrant filing a complaint, the commission may:
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(4) admonish the respondent,
The power to admonish a judge is equivalent to the power to censure a judge. By its plain meaning, a common usage of "admonish" means to "reprove mildly." The New American Webster's Dictionary (1995). A common definition of "reprove" means to "censure." The New American Webster's Dictionary (1995). Thus MCR 9.207(B)(4) gives the JTC the power to directly censure judges.
This delegation of power contravenes Const 1963, art 6, § 30(2), which states that the JTC can recommend censure to the Supreme Court. Art 6, § 30(2) does not provide any language authorizing the JTC to directly censure a judge. The JTC does not have the power to "admonish" judges because under Const 1963, art 6, § 30(2), the JTC only has the power to recommend "censure" to the Michigan Supreme Court.
Const 1963, art 6, § 30(2) states:
On recommendation of the judicial tenure commission, the supreme court may censure. . . . The supreme court shall make rules implementing this section and providing for confidentiality and privilege of proceedings. [Emphasis added.]
The last sentence of art 6, § 30( 2) of the Michigan Constitution only allows the Supreme Court to make court rules authorizing the JTC to recommend censure, suspension, or removal of a judge to the Supreme Court for final action — it does not authorize the Supreme Court to make rules that allow the JTC to directly censure judges. The Supreme Court does not have the constitutional authority to confer on the JTC the power to censure judges. The Supreme Court is constitutionally authorized only to "make rules implementing [Const 1963, art 6, § 30(2),]" which states that "on recommendation of the judicial tenure commission, the supreme court may censure, suspend with or without salary, retire or remove a judge." Giving the JTC the power to directly censure judges goes beyond implementing the power to recommend — it unconstitutionally gives the JTC authority that is constitutionally delegated to the Supreme Court.
Const 1963, art 6, § 30(2).
Id.
Because MCR 9.207(B)(4), the rule allowing the JTC to admonish judges, is unconstitutional, I dissent from the amendment of MCR 9.207 allowing for a judge subject to admonishment by the JTC to ask the Supreme Court to review the matter.
YOUNG, J. ( dissenting). I dissent from the amendment to MCR 9.207. I do not favor any changes in our court rules that perpetuate the normalization of private resolutions to judicial ethical violations. Rather, I believe that private censures and private admonitions by the Judicial Tenure Commission should be completely eliminated.