At the time the JTC brought its complaint for vacation of office against the respondent, respondent was currently in office. There is no support for this argument in MCL 600.4505, and In re Kapcia, 389 Mich. 306; 205 NW2d 436 (1973), does not support this assertion. Rather, the Court in Kapcia declared that its opinion did not consider whether a quo warranto action by the Court of Appeals was required for a judge who had lost his license to thereafter determine whether the judge had vacated his office.
The commission did not err in considering these acts committed prior to the time respondent assumed judicial office. State Bar Grievance Administrator v Moes, 389 Mich. 258; 205 N.W.2d 428 (1973), and In re Kapcia, 389 Mich. 306; 205 N.W.2d 436 (1973). As to misconduct in office, it is a finding of fact by the master that respondent continued in the practice of law after taking judicial office and that respondent caused a deputy clerk of his court to perform the duties of magistrate without compliance with the statutory requirements for the appointment of magistrates.
Thus, I would accord the JTC's recommendation considerable deference, and adopt its recommended sanction. See In re Kapcia, 389 Mich 306, 311; 205 NW2d 436 (1973) (noting that Const 1963, art 6, § 30 contemplates that the JTC and this Court will make individualized determinations on the entire factual context). See In re Chrzanowski, 465 Mich 468, 487-488; 636 NW2d 758 (2001), citing In re Hocking, 451 Mich 1, 24; 546 NW2d 234 (1996); Matter of Mikesell, 396 Mich 517, 527; 243 NW2d 86 (1976).
This Court's file on the rule reveals that as early as April 26, 1973, it was suggested that there was a need to address the problem of the lack of coordination between the proceedings of the State Bar Grievance Board and the Judicial Tenure Commission where a respondent was both an attorney and a judge. It is also clearly evident from the file that the impetus for the adoption of the rule was In re Kapcia, 389 Mich. 306; 205 N.W.2d 436 (1973), in which this Court was presented with the anomalous situation involving the suspension of the license to practice law of an attorney who was also a probate judge in a county where the probate judge was permitted to practice law. Thus, it is apparent that the origins of Grievance Board Rule 16.14(b) predate the Commission's complaint against Judge Del Rio by about four years and arose from substantially different circumstances.
Respondent contends that the limitation upon the Judicial Board's review was a denial of due process and frustrated the implicit statutory obligation of the Judicial Board to make a separate review and disciplinary recommendation. Respondent cites as authority In re Kapcia, 389 Mich. 306, 205 N.W.2d 436 (1973); In re Moes, 389 Mich. 256, 205 N.W.2d 428 (1973); Gordon v. Clinkscales, 215 Ga. 843, 114 S.E.2d 15 (1960), and Jenkins v. Oregon State Bar, 241 Or. 283, 405 P.2d 525 (1965). These cases do not clearly establish the proposition for which they are cited.
Thus, we must look to all the circumstances in our determination. In re Kapcia, 389 Mich. 306, 311, 312; 205 N.W.2d 436 (1973). I
The present State Bar and General Court Rules regarding the jurisdiction of the State Bar Grievance Board (State Bar Rules 15 and 16) and the Judicial Tenure Commission (GCR 1963, 932) appear to permit such parallel proceedings (Cf. In re Kapcia, 389 Mich. 306; 205 N.W.2d 436 [1973]). We hereby advise the Bar of our intention to consider amendments to these rules in order to give the Judicial Tenure Commission sole disciplinary jurisdiction over attorneys while they are serving in judicial capacities.
But even the vacation of judicial office mandated by the constitution is not self-executing. Cf. In re Kapcia, 389 Mich. 306, 314; 205 N.W.2d 436 (1973). Until the jurisdiction of a court is properly invoked and entry of a judgment declaring the office vacant, a judge may continue to exercise his powers although he has in fact removed his domicile in violation of the constitutional provision. Labeling a discharge a "vacation" of position does not change the issue before us.
Respondent does not argue that we may not sanction her solely on the basis of violations of the Code of Judicial Conduct, i.e., without also finding a violation of Const. 1963, art. 6, § 30 (2), see, e.g., In re Kapcia, 389 Mich. 306, 311, 205 N.W.2d 436 (1973) (once the JTC makes a recommendation, "the Supreme Court 'may censure, suspend with or without salary, retire or remove' a judge on grounds specified in the Constitution"), so I would not reach that question either. To hold otherwise seems tantamount to insulating judicial misconduct against its consequences by way of ineffective assistance of counsel.
Thus, I would accord the JTC's recommendation considerable deference, and adopt its recommended sanction. See In re Kapcia, 389 Mich. 306, 311, 205 N.W.2d 436 (1973) (noting that Const 1963, art 6, § 30 contemplates that the JTC and this Court will make individualized determinations on the entire factual context). See In re Chrzanowski, 465 Mich. 468, 487–488, 636 N.W.2d 758 (2001), citing In re Hocking, 451 Mich. 1, 24, 546 N.W.2d 234 (1996); Matter of Mikesell, 396 Mich. 517, 527, 243 N.W.2d 86 (1976).