‘The show is just beginning’: JTC case against Hudsonville judge moves forward

A special master has been appointed in the Judicial Tenure Commission’s case against 58th District Court Judge Kenneth Post in Hudsonville, who jailed an attorney for contempt after he repeatedly invoked his client’s Fifth Amendment privilege.

According to the JTC’s formal complaint against Post, attorney Scott Millard was representing Ethan Whale at an arraignment before Post. During the arraignment, Post asked Whale whether he would be “clean or dirty” if given a drug test. Millard told Post that Whale would stand mute to Post’s question.

Post insisted that Whale answer the question. After a recess, Post asked Whale directly if it was true that he didn’t want to reveal the last time he had used drugs. Millard interjected and said that was so.

Post told Millard that he was talking to Whale, not Millard. After another recess, during which Whale was tested and came up positive, Post continued to question Whale directly about the last time he used drugs. Millard twice attempted to assert Whale’s Fifth Amendment privilege on behalf of Whale. Post cut him off each time and warned him that a contempt citation was on the way.

Post told Millard that he needed Whale’s answer to determine “what the bond level is going to be.”

Post persisted in his questioning of Whale. Millard persisted in attempting to assert Whale’s rights.

Post fined Millard $100 for contempt of court. Millard again asserted Whale’s Fifth Amendment privilege. Post ordered Millard jailed for contempt.

While Millard was in custody and on his way to the county jail, according to the JTC’s complaint, Post summoned him back to court.

Just before Millard appeared in court, the court’s recording system captured these remarks between Post, who was laughing, and an unidentified speaker:

THE COURT: Good thinking. The show is just beginning. You won’t get better tickets anyplace. I’d sit up close if I were you.

UNIDENTIFIED SPEAKER: Okay.

THE COURT: The front row is good.

Post told Millard, who appeared before him in handcuffs, that he would be released if he agreed to return to court with Whale and allow Whale to answer Post’s question. After some discussion Post again remanded Millard to jail.

After an hour in jail, Millard was transported to the Ottawa County Circuit Court, in handcuffs and leg shackles, both attached to a belly chain. Circuit Judge Leo Post (no relation to Kenneth Post) ordered Millard released.

The JTC’s complaint charged that Judge Kenneth Post failed to follow the law, displayed an improper demeanor toward counsel and trivialized a court proceeding.

Post responded to the complaint with a 30-page answer. In the “Conclusion” section of the answer, Post wrote:

Judge Post admits that he made a mistake of law in not realizing that Attorney Millard’s instruction to his client not to respond in light of his client’s 5th Amendment rights was colorable and therefore that the holding of Attorney Millard in contempt was an abuse of his discretion. However, an error of law does not subject a judge to a violation of the Judicial Canons or to a violation anticipated by MCR 9.104(1) 9.205 (sic) or the Michigan Constitution or (sic) 1963 as amended in Article 6 Section 30.

Judge Post admits that his remarks, as directed to Attorney Millard were sarcastic and possibly demeaning, and therefore constituted a “failure to be patient, dignified, and courteous to lawyers with whom the judge deals in an official capacity,” contrary to the Code of Judicial Conduct, Canon 3A (3), and that his conduct may have “eroded public confidence in the judiciary and that he failed to avoid all impropriety,” contrary to the Code of Judicial Conduct, Canon 2A.

No word yet on a hearing date. Stay tuned.

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East Lansing nixes court consolidation plan

The Lansing State Journal reports this morning that officials of the 54B District Court in East Lansing have stonewalled negotiations that could have led to consolidation of Ingham County’s three district courts: East Lansing, the 54A District Court in Lansing and the 55th District Court in Mason.

Overall, the move would have saved an estimated $1.6 million annually, according to the LSJ’s story.

East Lansing City Manager George Lahanas told the LSJ that the city was concerning about retaining local control. He questioned whether the city would actually save any money under the proposed consolidation.

Click through here to read the LSJ’s report, including a fascinating explanation from an Ingham County commissioner at the end of the story about other reasons why East Lansing wasn’t interested in the plan.

MSC media coverage ‘unsophisticated’ says columnist

Matthew Davis, a Lansing-based attorney and political columnist for Mlive.com, has an interesting take on media coverage of the Michigan Supreme Court.

His well-founded gripe is the tendency to view the Court’s decisions through a political lens only when reporting for a general audience.  Matthew Davis: Media’s analysis of Michigan Supreme Court decisions should rise above 8th grade level

But at the bottom, says Davis, there are cases in which the end result doesn’t fit the notion that the Court’s justices are only looking to hand victories to the political party that backed them.

In one-high profile case after another, the court has sought to serve its only constituent — the law.

It’s a thoughtful piece. Check it out.

MSC removes Inkster District Court judge from office

The Michigan Supreme Court has removed Inkster District Court Judge Sylvia James from office for judicial misconduct.

In the MSC’s opinion, authored by Justice Marilyn Kelly, the Court stated that the evidence established:

that respondent misappropriated public funds, some of which were intended for victims of crime in the city of Inkster. She inappropriately spent much of this money on self-promoting advertisements and travel expenses for herself and various other court employees. She treated these funds, as the master phrased it, as her own “publicly funded private foundation.” In addition, she (1) denied people access to the court by instituting and enforcing an improper business-attire policy, (2) employed a family member in violation of court policy, and (3) made numerous misrepresentations of fact under oath during the investigation and hearing of this matter.

The cumulative effect of respondent’s misconduct, coupled with its duration, nature, and pervasiveness, convinces this Court that she is unfit for judicial office. Although some of her misconduct, considered in isolation, does not justify such a severe sanction, taken as a whole her misconduct rises to a level that requires her removal from office.

Four of the Court’s justices, Chief Justice Robert Young, Stephen Markman, Mary Beth Kelly and Brian Zahra, signed Kelly’s lead opinion.

Justices Michael Cavanagh and Diane Hathaway concurred “in the majority’s result of removal from office and its decision to direct the Judicial Tenure Commission to submit an itemized bill of costs pursuant to MCR 9.205(B).”

In a separate opinion, Markman, joined by Young, concurred in removing James from office but said they would have gone even further.

Although the majority’s ordering removal from office addresses the immediate harm caused by Judge James, it is an inadequate response and fails to address the likelihood of continuing harm. As a result of the majority’s decision, Judge James will be removed from office from today’s date until the expiration of her present term at the end of 2012. She has her name on the August primary ballot, however. If she is successful in the primary, her name will be placed on the ballot for the general election in November. And should she prevail in those elections, she will be allowed to resume her judgeship on January 1, 2013. …

This Court has a duty to redress the harms done by Judge James’ harm, and that duty is not vitiated if Judge James is reelected. Nor is that duty limited to past harm; rather, it also extends to guarding against future harm. Imposing a six-year conditional suspension, which would be in effect throughout the next judicial term, is the only way this Court can adequately protect judicial integrity and redress the substantial harm caused by Judge James’s refusal to be bound by the same laws she is charged with applying.

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.