DMBA pans three incumbents in 2012 judicial ratings

The Detroit Metropolitan Bar Association has ranked three incumbent judges seeking re-election or higher office  as “not qualified” in the DMBA’s judicial ratings for the Aug. 7 election.

The DMBA gave a “thumbs down” to:

Wayne County Circuit Judge Richard Halloran Jr. The Michigan Supreme Court has disciplined Halloran twice since 2002.  In In re Halloran, 466 Mich. 1219 (2002), Halloran consented to a public censure by the MSC and a 90-day suspension without pay. Halloran admitted or did not contest findings by the Michigan Judicial Tenure Commission concerning an incident in a public restroom with an undercover officer.

In In re Halloran, 486 Mich. 1054 (2010), Halloran agreed to a public censure and a 14-day suspension without pay, Halloran dismissed 30 family law cases, which he failed to timely adjudicate, to avoid an administrative reporting requirement that would have revealed he missed deadlines to complete the cases.

Inkster District Court Judge Sylvia James. The Michigan Supreme Court recently heard charges issued by the Judicial Tenure Commission against James. The JTC has alleged James misused funds from the court’s Community Service Program account and made misrepresentations to the JTC and the special master appointed to conduct an administrative hearing on the matter.

Update Aug. 1, 2012: The Michigan Supreme Court issued an opinion on July 31, in which James was removed from the bench. See In re James.

Dearborn District Judge Mark Somers. Sommers was hit with two jury awards last year totaling more than $1 million in favor of female court workers. The juries agreed that in one case, Somers wrongfully eliminated her position and in another, wrongfully discharged her.

The DMBA’s complete rankings are available here.

Sense and sensibility: Consecutive contempt sentences could get MSC review

The way Judge Michael Warren of the Oakland County Circuit Court saw things, he was giving Brian James Veilleux a break when he sentenced him to three years of probation with 365 days in jail (with work-release) for possessing cocaine.

The sentencing guidelines called for up to 34 months in prison, and under the plea agreement, Veilleux could have received a 1- to 15-year prison term.

Veilleux had an impressive list of felony and misdemeanor convictions, 10 in all. Most were related to drunk driving or drugs.

But Warren decided to be lenient and told Veilleux just that when he announced the sentence.

All things considered, Veilleux should have been grateful. But something must have rubbed him the wrong way.

Very shortly after being sentenced, defendant began to shout and curse at the trial court judge. He persisted in this behavior despite being told that he was being found in contempt for each outburst. The trial court held defendant in contempt a total of seven times before defendant was removed from the courtroom. The outburst was not transcribed, but defendant does not contest the characterization of his behavior.

The trial court entered an order … sentencing defendant to jail terms of 90 days for each contempt citation. The terms were to be served consecutive to one another and consecutive to defendant’s one-year jail term that defendant was serving as part of his probation sentence. Defendant never appealed from the sentences. People v. Veilleux. (Michigan Court of Appeals) (unpublished per curiam) (majority opinion) (dissenting opinion)

In short, Veilleux, who was no stranger to the court system, got a year in jail for possessing less than 25 grams of cocaine and was ordered to serve significantly more time — 630 days — for being lippy with the judge.

After a year in jail, Veilleux was released in error without serving his seven consecutive contempt sentences.

His early freedom was short-lived. Less than three weeks later, he was arrested for assault. He was drunk at the time. The assault charge was dropped. But being drunk was a probation violation.

Warren was generous in allowing credit for time served but gave Veilleux a long sentence for the probation violation — 34 months to 15 years in prison. That sentence, said Warren, would begin to run right after Veilleux served all seven of his consecutive contempt sentences.

In the Court of Appeals, Veilleux argued that Warren lacked authority to order consecutive contempt sentences and to order that the drug sentence would run consecutive to the contempt sentences.

We’ve been down this road before with Judge Warren, the Court of Appeals replied. In a 2005 case, People v. Williams (Michigan Court of Appeals) (unpublished per curiam), the COA affirmed Warren after he imposed four consecutive contempt sentences on a “rude and disruptive” defendant. According to the Williams panel:

The clear and unambiguous language of MCL 768.7a(1) requires that each of defendant’s sentences for contempt not only be consecutive to the term of imprisonment being served at the time the contemptuous conduct occurred but also be consecutive to “terms of imprisonment which the person … has become liable to serve.” Because as each instance of contempt of court occurred, the trial court properly and immediately found defendant guilty of contempt, MCL 600.1711(1) … defendant “has become liable to serve” a term of imprisonment for that contempt of court. Thus, as the trial court found defendant guilty of each succeeding contempt as it occurred, defendant was liable to serve his prior contempt sentences.

The Veilleux panel acknowledged that Williams was not binding.

We find Williams to be instructive only to the extent that it holds that “each contempt sentence is required to be served consecutively to those prior contempt sentences for which defendant had already become liable to serve.” Although raised in the context of allowing stacking of multiple contempt sentences, the phrase supports a finding that a defendant should always be required to serve a sentence for which he has become liable to serve. …

Defendant must be made to complete the sentence from which he was improperly discharged. Failure to so order would result in defendant suffering no penalty for his outrageous courtroom behavior and criminal contempt convictions.

In her dissent, Judge Deborah Servitto argued that MCL 768.7a(1) doesn’t apply in this case. She noted that the statute applies to “a person who is incarcerated in a penal or reformatory institution in this state …. and who commits a crime during that incarceration[.]”

Veilleux wasn’t incarcerated when Warren banged the contempt gavel seven times.

And, said Servitto, this brings us to another point for consideration.

I am sure that most judges have experienced the not-so-respectfully expressed resentment of a defendant at one time or another. But, as observed in In re Contempt of Dudzinski, 257 Mich App 96, 107; 667 NW2d 68, (2003), when wielding contempt powers, “[t]rial courts …. must be on guard against confusing offenses to their sensibilities with obstruction to the administration of justice.” After all, “[j]udges are supposed to be men of fortitude, able to thrive in a hardy climate.” Id. In imposing seven consecutive 90-day sentences, it appears as if the trial judge was acting in response to an offense to his sensibilities.

Veilleux filed a leave application with the Michigan Supreme Court. Perhaps Servitto’s sensible dissent got the MSC thinking about a couple of things. The MSC will hear oral arguments on whether to grant leave to appeal.

At oral argument, the parties shall address: (1) whether sentences imposed after a finding of criminal contempt must be served consecutively under MCL 768.7a; and (2) whether a court may hold a person in contempt multiple times for each contemptuous act in a continuous course of conduct.

The MSC also ordered “the Oakland Circuit Court to determine whether any recording of the defendant’s contemptuous behavior exists, and if so, to provide a copy of that record to this Court.”

Judicial officers could preside by video under MSC proposal

The Wizard of Oz

We’re fairly certain it won’t look like this.

Judicial officers could hold court via video conferencing equipment under a proposed Michigan Supreme Court administrative order.

The proposal would allow judicial officers, under certain circumstances, to preside from a remote location without the parties’ consent.

Remote participation by judicial officers shall be limited to the following specific situations:

1) judicial assignments;

2) circuits and districts that are comprised of more than one county and would require a judicial officer to travel to a different courthouse within the circuit or district;

3) district court districts that have multiple court locations in which a judicial officer would have to travel to a different courthouse within the district;

4) a multiple district plan in which a district court magistrate would have to travel to a different district.

The judicial officer who presides remotely must be physically present in a courthouse located within his or her judicial circuit, district, or multiple district area.

Under the proposed administrative order, multicounty circuit and district courts seeking permission to have judicial officers preside via video equipment must submit a proposed local court rule for the State Court Administrator’s approval. The State Court Administrative Office will monitor video equipment use and let the MSC know how things are working out.

The MSC is seeking comments about the proposal through Nov. 1. Refer to the proposal for more information about submitting comments.

MSC seeks comment on proposed judicial performance measures

The Michigan Supreme Court is interested in measuring trial court performance and providing public access to the reports.

Proposed Administrative Order No. 2012-XX would authorize the State Court Administrative Office (SCAO) to create standardized methods for evaluating trial court performance.

The proposal is broad in concept but short on details.

The concept:

Performance measurement is a critical means to assess the services provided to the public and the processes used to deliver those services. Performance measurement can assist in assessing and recognizing areas within courts that are working well, and those that require attention and improvement.

Trial court performance measures are not a new concept. The National Center for State Courts first issued the 10 CourTools in 2005; in the 1990s, SCAO formed a task force, including judges and court administrators, to study how to measure a court’s performance. In 2009, the state court administrator convened the Trial Court Performance Measures Committee, which piloted performance measures and offered recommendations. The committee stressed that all trial courts should embrace performance measures as an opportunity to provide high-quality public service in the most efficient way. Further, because transparency and accountability are integral elements of an efficient and effective judiciary, SCAO’s standardized statewide performance measure reports should be readily available to the public.

How might all of this work? That’s largely being left to the SCAO to figure out:

A. The State Court Administrative Office is directed to:

1. Develop a plan for implementation of performance measures in all trial courts.

2. Assist trial courts in implementing and posting performance measures.

3. In conjunction with the Trial Court Performance Measures Committee, assess and report on the effectiveness of the performance measures and modify the measures as needed.

B. Trial courts are directed to:

1. Comply with the trial court performance measures plan developed by the State Court Administrative Office.

2. Report performance measure information to the State Court Administrative Office.

C. SCAO’s standardized statewide performance measure reports shall be made available to the public on the Internet.

Got some thoughts about this? Refer to the proposal for information on submitting comments. The comment period closes Nov. 1.

MJA seeks nominations for Hilda Gage Judicial Excellence Award

Judge Hilda Gage

Judge Hilda Gage, the inspiration for the MJA’s Hilda Gage Judicial Excellence Award.

Do you know a current or former circuit court or Court of Appeals judge worthy of recognition for an outstanding legal career?

The president of the Michigan Judges Association, Judge Timothy Hicks, wants to hear from you.

The MJA is accepting nominations for its third annual Hilda Gage Judicial Excellence Award. The award recognizes current or former Circuit or Court of Appeals Judges who have demonstrated exemplary service by excelling in trial and docket management, legal scholarship and contributions to the profession and the community.

The award is named in honor of the late Judge Hilda Gage. Gage served with honor on the Court of Appeals and Oakland Circuit Bench before passing away in 2010. She was renowned for her courage and scholarship. She was the first female President of MJA and the first woman to chair the Judicial Tenure Commission.

Past recipients of the Hilda Gage Judicial Excellence Award include the Hon. J. Richardson Johnson, of the Ninth Circuit Court in Kalamazoo, and the Hon. James Ryan, formerly of the Third Circuit Court in Wayne County, the Michigan Supreme Court, and the United States Sixth Circuit Court of Appeals.

Hicks said that MJA seeks nominees who follow in Judge Gage’s footsteps by “serving their state and their communities with integrity, skill, and courage every day.”

Nominations are due by July 20. Here’s a nominating form and instructions or give Hicks a call at (231) 724-6337.

Special master appointed in JTC complaint against Adams

The Michigan Supreme Court has named Donald Miller, a retired Macomb County circuit court judge, to hear evidence of misconduct charges filed by the Judicial Tenure Commission against Wayne County Circuit Court Judge Deborah Ross Adams.

The JTC, in Formal Complaint No. 89, charged Adams with lying under oath and forging documents in connection with her divorce.

The divorce complaint landed in Oakland County Circuit Court Judge Mary Ellen Brennan’s courtroom after the entire Wayne County circuit bench recused itself.

The JTC charges that Adams, while represented by counsel, frequently called Brennan’s office concerning her case, and persisted in doing so after being advised that such contact was inappropriate. The JTC’s complaint alleges Adams, while under oath, denied she had made the calls.

The JTC further alleges that Adams forged her former attorney’s name on a motion and brief to set aside or modify Brennan’s judgment of divorce.

Adams is also charged with making false statements to the JTC about the matter.

The complaint alleges that Adams violated the Judicial Code of Conduct, several court rules and Michigan’s perjury statute.

Miller will hear evidence and prepare a report for the JTC. The JTC, after a hearing, can then decide to dismiss the complaint or recommend that the Michigan Supreme Court impose one of several forms of discipline such as public censure, a suspension or removal from office.

Gov. appoints White to 38th Circuit Court bench

Gov. Rick Snyder appointed appointment Monroe family lawyer Daniel White to the 38th Circuit Court in Monroe County. The appointment fills the vacancy created by the resignation of Judge Joseph A. Costello Jr.

White began his legal career as an attorney with the law firm of Lennard & Graham. For nearly 30 years, he has been in private practice. He is a former member of the Monroe City Council and remains active in his community and professional organizations, including the Monroe County Bar Association and the Monroe County Airport Board. He is a graduate of Monroe County Community College, University of Michigan and earned his law degree from the University of Toledo.

White’s appointment runs through Jan. 1, 2013. He will have to seek election in November 2012 for the remainder of the term ending Jan. 1, 2015.