FILED JULY 31, 2009

In re Honorable STEVEN R. SERVAAS Judge, 63 rd District Court. No. 137633

BEFORE THE ENTIRE BENCH WEAVER, J. The Judicial Tenure Commission (JTC) recommended that this Court remove 63rd District Court Judge Steven Servaas (respondent) from office for vacating his office, as well as for judi cial misconduct involving a comment and two drawings of a sexual na ture. Because we conclude that the only appropriate

forum to determine whether respondent vacated his judicial office is a quo warranto action filed by the At torney General in the Cour t of Appeals, we reject

the JTC’s recommendation as to the vacati on of office claim. Respondent’s conduct concerning the comment and two drawings was unquestionably inappropriate; however, a majority of th is Court concludes that respondent’s

conduct did not rise to the level of blatan t judicial misconduct requiring the most

severe sanction: removal from office. In this respect, we view respondent’s Michigan Supreme Court Lansing, Michigan 

# Opinion Chief Justice: Marilyn Kelly Justices: Michael F. Cavanagh Elizabeth A. Weaver Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman Diane M. Hathaway2 actions as an aberration given his 35 ye ars of apparent unblemished service as Judge of the 63rd District Court. Accord ingly we impose public censure only.

I Respondent is a judge of the 63rd Dist rict Court, 1st Division, in Rockford, Michigan. On February 14, 2008, the JTC filed Formal Complaint No 84, 1 alleging that respondent ha d committed judicial misconduc t in violation of Const 1963, art 6, § 20; 2 MCR 9.104 3 and MCR 9.205; 4 and the Michigan Code of

1 On both January 17, 2008, and Febr uary 14, 2008, the JTC filed petitions for interim suspension without pay pending final reso lution of this matter. Both petitions were denied by this Court.

2 See note 8 of this opinion.

3 MCR 9.104 states in part: (A) The following acts or omissions by an attorney, individually or in concert with another person, are misconduct and grounds for discipline, whether or not occurring in the course of an attorney-client relationship: (1) conduct prejudicial to the pr oper administration of justice; (2) conduct that exposes the legal profession or the courts to obloquy, contempt, censure, or reproach; (3) conduct that is contrary to justice, ethics, honesty, or good morals; (4) conduct that violates the standards or rules of professional responsibility adopted by the Supreme Court

4 MCR 9.205 states in part: (A) Responsibility of Judge. A j udge is personally responsible for the judge’s own behavior and for the proper conduct and administration of the court in which the judge presides. (B) Grounds for Action. A judge is subject to censure, suspension with or without pay, retirement, or removal for . . .3 Judicial Conduct (MCJC), Canons 1, 5 2A-C, 6 and 3A(3). 7

misconduct in office . . . or conduct that is clearly prejudicial to the administration of justice. . . . (1) Misconduct in office includes, but is not limited to: * * * (c) persistent failure to treat persons fairly and courteously; (d) treatment of a person unfairly or discourteously because of the person’s race, gender, or other protected personal characteristic[.]

5 Canon 1 of the Code of Judi cial Conduct states in part: An independent and honorable judiciary is indispensable to justice in our society. A judge sh ould participate in establishing, maintaining, and enforcing, an d should personally observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. A ju dge should always be aware that the judicial system is for the benefit of the lit igant and th e public, not the judiciary. . . .

6 Canon 2 of the Code of Judicial Conduct states in part: A. Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. . . . B. A judge should respect and observe the law. At all times, the conduct and manner of a j udge should promote public confidence in the integrity and impartiality of the judiciary. Without regard to a person's race, gend er, or other protected personal characteristic, a judge should treat every person fairly, with courtesy and respect. C. A judge should not allow family, social, or other relationships to influence judicial conduct or judgment. A judge should not use the pres tige of office to adva nce personal business interests or those of others. . . .

7 Canon 3(A)(3) Code of J udicial Conduct provides:4 Specifically, the first count of the complaint alleged that respondent vacated his judicial office in violatio n of Const 1963, art 6, § 20, 8 when he changed his primary residence from Cannon Township, wh ich is located in the 1st division of the 63rd District Court, to Ada Township, whic h is located in the 2nd division of the same judicial district. 9 The second count of the complaint alleged that

A judge should be patient, dignified , and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity, and should require similar conduct of lawy ers, and of staff, court officials, and others subject to the judge ’s direction and control.

8 Const 1963, art 6, § 20, provides that “[w]henever a justice or judge removes his domicile beyond the limits of the territory from which he was elected or appointed, he shall ha ve vacated his office.”

9 Justice Markman’s argument conflates the complaint of va cation of office with the other complaints c oncerning inappropriate sexual conduct. In doing so, he asserts that it is perfectly appropriate for the JTC to bring an action asserting vacation of office, along with any ot her assertions concerning disciplinary conduct. A study of Const 1963, art 6, § 30(1), and MCR 9.205(B) contradicts this argument. Specifically, the JTC’s au thority is limited to bringing actions against a judge for conviction of a felony, physi cal or mental disability which prevents the performance of judici al duties, misconduct in office, persistent failure to perform his duties, habitual intemperance or conduct that is clearly prejudicial to the administration of justice. [Const 1963, art 6, § 30(1).] The JTC has no authority to complain that a judge has vacated his office.

An allegation of va cation of office is distinct from th e JTC’s authority to recommend to this Court that a judge be censured by removal from office. Further, Justice Markman asserts, without citing any authority, that it is perfectly appropriate for a quo warrant o complaint to be combined with complaints for judicial misconduct . To the contrary, pursuant to MCR 3.306(A)(1), an action for quo warranto “must be brought in the Court of Appeals.” MCR 3.306 says nothing about whether the JTC has any legal authority to brin g a complaint of quo5 respondent failed to comply with stat utory notification requirements when he failed to change his driver’s license information and vote r registration to reflect his move to Ada Township.

The third count of the complaint alleged that respondent engaged in sexually inappropriate conduct directed toward female court employees, citing three specific examples. In the first inst ance, it was alleged that respondent drew

female breasts on a note that was attached to a court file. The drawing was made

after a female clerk commented on the re vealing dress of a woman who appeared

in court. The seco nd event concerned the drawing of a penis that appeared on a

note attached to a court file. The third instance occurred during a retirement party for an employee at the 2nd division courth ouse. While at th e party, respondent commented on a university sweatshirt worn by a female clerk employed in the 2nd division. Respondent stated that the woman had “an aw fully small chest” for the college indicated on the sweatshirt, and “s hould have gone to a smaller school like Alma,” which would have fit her “s mall chest better.” On March 5, 2008, this Court appointed the Honorable Casper O.

Grathwohl as master to hear the case. The master’s report, issued on May 12, 2008, concluded that responde nt vacated his judicial o ffice in violation of Const 1963, art 6, § 20, when he changed his pr incipal residence from the 1st division to warranto and a complaint of judicial mi sconduct in a JTC proceeding. An allegation of quo warranto is not magically converted into another kind of judicial misconduct simply by linking the allega tion to actual judicial misconduct complaints.6 the 2nd division of the 63rd District Court in August 2005. The master recommended that the second count of the complaint be dismissed. 10 The master further concluded that respondent’s “s exual doodles and sexual communication” constituted judicial misconduct and comp romised the integrity of the court. Respondent filed objections to the mast er’s report. Th e JTC issued its

decision and recommendation for an order of discipline on October 17, 2008. The JTC adopted the master’s findings of fa ct and conclusions of law, with the exception of finding that re spondent had moved to the 2nd division “as early” as 2000. In making this factual finding, th e JTC relied on docume ntary evidence that was offered solely for impeachment purposes in the proceedings before the master, but was not substantively admitted. 11 On the basis of the findings of fact and conclusions of law, the JTC recommende d that respondent be removed from

office. The JTC further recommended that respondent be asse ssed fees and costs in the amount of $8,364.38 because resp ondent “engaged in deceit and intentional misrepresentation.”

10 The examiner did not file any objec tions to the master’s report, as required by MCR 9.215. Despite the apparent forfeiture of the issue, however, the JTC “agree[d] with and adopt[ed]” the mast er’s conclusions regarding count II. In light of the forfeiture of the issue, it will not be further discussed in this opinion.

11 The examiner indicated that he did “not intend to offer” the documents into evidence because he had not provided respondent with copi es of the exhibits as required by both the pretrial order and MCR 9.208(C)(1)(a)(i).7 II

This Court reviews the recommendati ons and findings of the JTC de

novo. 12 The standard of proof in judici al disciplinary proceedings is a preponderance of the evidence. 13

A. Vacation of Office Const 1963, art 6, § 20, provides th at “[w]henever a justice or judge removes his domicile beyond the limits of the territory from which he was elected or appointed, he shall have vacated his office.” The pa rties agree that the term “domicile” refers to respondent’s primar y residence. Furthermore, respondent

admits that he changed his primary reside nce to the 2nd election division from

2005 to 2008. 14 The dispute centers on the meaning of the word “territory.” Respondent argues that “territory” refers to the entire 63rd judicial district, while the JTC argues that the term is limited to the election di vision within the district. Thus, when respondent moved his primar y residence from the 1st election division

to the 2nd election division of the 63rd District Court, the JTC maintains that respondent vacated his offi ce, possessed no authority to continue to serve as a judge, and functioned as a “nonju dge masquerading as a judge.”

12 MCR 9.225; In re Somers , 384 Mich 320, 323; 182 NW2d 341 (1971).

13 In re Loyd , 424 Mich 514; 384 NW2d 9 (1986).

14 Although the JTC found that respondent moved from the first election division to the second election division in 2000 rather than 2005, in light of respondent’s admissions, that finding a dds no weight to the allegations that respondent vacated his office.8 However, this Court need not address which argument is correct, nor reach a conclusion regarding whet her respondent vacated his office because our statutes, caselaw, and court rules provide that a quo warranto action brought by the Attorney General in the Court of Appeals is the only appropriate and exclusive proceeding to make the preliminary dete rmination regarding whether respondent vacated or unlawfully held his judicial office

. 15 MCL 600.4501 provides th at the Attorney General shall bring an action for quo warranto “when the facts clearly wa rrant the bringing of the action.” 16 MCR 3.306(A)(1) provides that the quo warranto action must be brought in the Court of

15 Justice Markman, post at 11, asserts that another reason that the JTC, and not the Court of Appeals, can bring a vaca tion of office complaint is that the quo warranto statute, MCL 600.4505, implies that actions for quo warranto may only be brought for “claims that an officer is currently exercising an invalid title to office.” At the time the JT C brought its compla int 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 asse rtion. 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. Wise ly, that Court recognized the Court of Appeals initial exclusive juri sdiction with respect to quo warranto proceedings. Justice Markman, post at 17 n 16, asserts that Kapcia establishes that the JTC cannot use any other entity’s findings, including those of the Court of Appeals. Again, with respect to a quo warranto proceeding, the JTC has no authority to make a finding that a judge improperly vacated hi s office. The JT C only has the authority to recommend what disciplinary measure shoul d be exercised by this Court based on the exclusive right of the Court of Appeals to make the determination in a q uo warranto proceeding.

16 If the Attorney General refuses to act, a private party may bring the action upon leave of court. MCL 600.4501.9 Appeals when a person “usurp s, intrudes into, or unlawf ully holds or exercises a state office,” or if a state officer “doe s or suffers an act that by law works a

forfeiture of the office.” If a quo warranto action claims usurpation of office, the judgment “may determine the right of the defendant to hold the office.” 17 Moreover, if a defendant in a quo warrant o proceeding is found to unlawfully hold or exercise the office at issue, the defendant may be assessed fines 18 and damages 19 in addition to being ousted from o ffice. Significantly, our caselaw has

held for more than a century that “[t]he only way to try titles to office finally and conclusively is by quo warranto. ” 20 Notwithstanding, the JTC asks this Court to make the prefatory determination that respondent vacated his office under Const 1963, art 6, § 20, and that he consequently “was no longer a judge” and acted “without judicial authority,” as a basis of removing responde nt from office for judicial misconduct.

17 MCL 600.4505(1).

18 MCL 600.4515.

19 MCL 600.4511.

20 Frey v Michie , 68 Mich 323, 327; 36 NW 184 (1888) (emphasis added). See also Metevier v Therrien, 80 Mich 187, 45 NW 78 (1890); People v Kongeal, 212 Mich 307, 317, 180 NW 636 (1920) ( cannot attack “the legal existence of such a court or its de facto officers othe rwise than in a direct proceeding by quo warranto”); Gildemeister v Lindsay , 212 Mich 299, 18 0 NW 633 (1920); Sempliner v FitzGerald , 300 Mich 537, 2 NW2d 494 (1942); Cook v Burhans , 304 Mich 108, 7 NW2d 370 (1942); People v Russell , 347 Mich 193, 79 NW2d 603 (1956); Layle v Adjutant General , 384 Mich 638, 641; 186 NW2d 559 (1971) (“[Q]uo warranto is the proper and exclusive remedy to try title to office . . . .”).10 However, this determination is precisely the issue to be reso lved in a quo warranto

action. While this Court c ould certainly review on ap peal the decision made by the Court of Appeals in a quo warranto action, 21 and could determine whether the conduct surrounding respondent ’s forfeiture of office rose to the level of judicial misconduct warranting judicial discipline, 22 an original proceeding in the Supreme

Court 23 is not the appropriate place to determine in the first instance whether respondent vacated his office. Rather, the law requires that this question be initiated by the Attorney General and resolv ed as an initial matt er by the Court of Appeals. 24 Consequently, all evidence and testim ony obtained during the proceeding by the JTC regarding whethe r respondent had vacated his office was obtained through an unconstitutional pr ocess because the JTC has no authority to proceed on the quo warranto issue or to determine whether respondent vacated his office.

21 MCR 7.301(2).

22 Const 1963, art 6, § 30; MCR 9.225 . Because no quo warranto action was filed and no determination was made regarding whether respondent vacated his office, we need not determine whethe r the act of vacating judicial office constitutes sanctionable judicial misconduct.

23 MCR 7.304.

24 By analogy, Const 1963, art 6, § 30, provides that this Court may discipline, retire or remove a judge for conv iction of a felony. It could hardly be argued, however, that this Court rather than the circuit court sh ould adjudicate and convict the judge of the fe lony simply because the un resolved predicate issue arose during the course of a ju dicial disciplinary proceeding. In re Laster , 404 Mich 449, 274 NW2d 742 (1979), cited by the JTC, is simply not responsive to this issue.11 That determination can only be made by the Court of Appeals in a quo warranto proceeding, which could then be appealed to this Co urt. If a quo warranto action has been successfully brough t in the Court of Appeals, and that decision is affirmed by this Court, only then may th e JTC act on the appellate court decision and determine whether there has been any ju dicial misconduct a ssociated with the determination of the Court of Appeals that a judge has vacated his or her office. Moreover, had the Michig an Supreme Court decided in a quo warranto appeal that respondent had vacated his office, the Supreme Court would have had the power to remove respondent from o ffice, and, had that happened, any JTC proceeding regarding judicial misconduct involving the vacation of office would

have been moot because th e Supreme Court had already exercised the most severe punishment. Simply put, the JTC had the cart before the horse.

Just as the JTC has neither the author ity nor the power to decide whether a judge vacated his or her office, this Supreme Court does not have any constitutional authority to gr ant that authority and power to the JTC. The JTC only has the authority to le t the quo warranto process la wfully proceed to a legal determination of whether or not a ju dge has vacated his or her office. With regard to our conclu sion in this regard, we reject Justice Markman’s attempt to characterize the JTC as having made a “determination” to which this Court must defer. The JTC only has th e authority to “recommend” disciplinary action. Justice Markman’s attempt to c ouch our “rejection” as unbelievable is improper. Indeed, Justice Markman asserts that a majority of this Court errs in its12 review of the JTC d ecision by “afford[ing] no deference whatsoever to the Commission’s factual findings.” Post at 1-2 (emphasis adde d). To be precise,

while this Court has a duty to review a recommendation, as to the deference

afforded the JTC after this Court reads the recommendation, there is no duty to

accept , or to defer, to any part of the JT C’s recommendation. This Court has no duty to accept, even in part, any JTC “deci sion” because the JTC does not have the power to decide how and whether to di scipline a judge; the JTC can only make

recommendations to this Court and, in this regard our review of JTC

recommendations is de novo. 25 In re Somers , 384 Mich 320, 323; 182 NW2d 341 (1971).

25 Contrary to Justice Markman’s a ssertion, our deci sion today does not affect the standard by wh ich this Court reviews JTC recommendations. As Justice Markman accepts, we review the JTC’s recommendations de novo. In re Somers , 384 Mich 320, 323; 182 NW2d 341 (1971). And we are aware of no mandate that this Court give deference to the JTC’ s “decisions.” The Michigan Constitution does not require that we give any deference to the JTC’s “decisions.” Moreover, we have held that any deference gi ven to the JTC’s “recommendations” is contingent upon us finding that the JTC’s analysis was “reasonably done.” In re Chrzanowski , 465 Mich 468, 488; 636 NW2d 758 (2001). In this case, for the reasons noted in this opini on, we conclude that the JT C’s analysis fell below the “reasonably done” threshold. We have also limited any deference regarding factual findings to the master’s credibility determinations. Loyd , supra at 535- 536. That deference was further limited to when the credibility determination was supported by the whole record. Id . We have never ar ticulated a deference requirement toward the JTC’ s credibility determinations. This is an important distinction in this case because the JTC did not accep t the master’s credibility determinations; instead, it we nt beyond the master’s conc lusions and, as Justice Markman rightly states, “decided” that re spondent had moved ou t of his division at a date earlier than when the master had determined. Notably, it was this “decision” on which the JTC hinged its removal recommendation. Thus, any deference to a credibility determination would apply to the master’s findings,13 As established in Const 1963, art 6, § 30 (2): On recommendation of the judicial tenure commission, the supreme court may censure, suspend with or without salary, retire or remove a judge for co nviction of a felony, physical or mental disability which preven ts the performance of judicial duties, misconduct in office, persistent failur e to perform his duties, habitual intemperance or conduct that is clearly prejudicial to the administration of justice. For comparison purposes, consider this scenario: if the JTC believes a judge has committed armed robbery, it has no authority to proceed to determine whether or not the judge did commit armed robbery. Only the criminal judicial system guided by statutes and court ru les has the authority to make that

determination. If the court process legally determines a judge is guilty of armed robbery, only then can the JTC recognize th e legally determined fact that the judge committed the crime and only then can the JTC bring a proceeding for judicial

misconduct on the basis of the court’s rulin g that a judge committed the crime of armed robbery.

assuming that they were supported by th e entire record; it would not apply to the JTC’s contrary “decision.” This is yet a nother reason for us to conclude that the JTC’s “recommendation,” much less its “decision,” grante d no deference in this case. It is unclear why Justice Markma n believes we are required to give the JTC’s “decisions” deference. Further, a ssuming Justice Markman is correct that this Court is bound to give some modicum of deference to the JTC’s recommendations, that rule does not appl y here because the JTC’s analysis was not reasonably done, and its credibility conclusions are c ontrary to those of the master.14 B. Conduct of the Executive Director of the JTC. On January 16, 2008, the executive dire ctor of the JTC personally served respondent with a 28-day no tice pursuant to MCR 9.207(D)(1). 26 The executive

director arrived unannounced at respondent’s chambers accompanied by an armed Michigan State Police lieutenant. Appare ntly, unbeknownst to either respondent or the director, the police offi cer recorded the conversation. The director presented respondent with the 28-day notice, and asserted that respondent’s office was “vacant” beca use respondent had moved outside his district, as evidenced by his hom estead tax exemption affidavit. 27 In addition to the notice, respondent was also presente d with a petition for interim suspension without pay, which the director indicate d would be immediatel y filed and mostly likely granted because responde nt was “not in office.” The director then offered respondent th e “opportunity to resolve” the matter quickly without any “shame, proceedings , [or] accusations of perjury” by resigning “immediately,” 28 presenting respondent wi th a prepared resignation letter on respondent’s court letterhead. Th e director stated th at, although the JTC

26 The notice must be given 28 days before filing a complaint. The “purpose of the notice is to afford the judge the op portunity to apprise the commission, in writing within 28 days, of such matters as the judge may choose, including information about the factual aspects of the allegations and other relevant issues.” MCR 9.207(D)(1).

27 The director indicated that, if resp ondent had not abandoned his office, then he must have filed a false affidavit, which constituted the crime of perjury.

28 The director reiterated that “i mmediately means immediately.”15 indicated that respondent had until 9:00 a.m. the next morning to sign the resignation letter, the director would “prefe r” to have the resignation letter signed “right now” so that he could “take the letter with” him. When the respondent protested, seekin g “time to talk to somebody,” the director replied that respondent would be “suspended in a matter of days” and that it would all “become public” at a time wh en respondent was “up for election.”

The director reiterated the 9:00 a.m. de adline, adding that re spondent also faced allegations involving the sexually inapprop riate behavior, and the director would get respondent “thrown off [the bench] ju st for that.” When respondent asked questions regarding the basis of the allega tions of sexually inappropriate behavior, the director replied that he was not ther e “to do any type of interview” and would not “explain anything else.” The director told the resp ondent that he could “t ake the easy way out” and sign the resignation letter; otherwise, th e director “welcome [d] the opportunity” and would “engage to the fullest” if re spondent chose to “fight it.” When respondent observed that criminal defe ndants were given “more consideration” than was being afforded to him, the di rector responded that immediately signing the resignation letter would “avoid having to drag [respondent’s] name through the mud,” “avoid any embarrassing situations,” and avoid the “stain to the state judiciary” of having a judge who “vio lates the law, comm its perjury, [and] sexually harasses staff.” After respondent re fused to sign the resignation letter on16 the spot, the meeting concluded. A mome nt later, the director was heard saying that “it’s like shooting ducks in a barrel.” When these proceedings commenced, th e director’s threats to humiliate respondent and drag his name through the mud were soon realized. The details of the present allegations were widely di sseminated in the local newspapers, on

television and on the Internet over the course of several months. The controversy, including the facts surrounding the meeting between respondent and director, were the subject of numerous newspaper articles, editorials, and letters to the editor. 29

While the actions of the JTC director have been called into question, this Court

need not address whether he violated any ethical rule s because the proper forum

for the review of the JTC director’s act ions is the Attorney Grievance Commission (AGC). C. Inappropriate Drawings and Comment The remaining allegation of judicial misconduct concerns respondent’s sexually inappropriate conduct directed toward female court employees. The testimony indicates that on two separate occasions respondent made lewd drawings—one of female breasts and one of a penis—on notes that were attached

29 Disorder in the Di strict Court? The Grand Rapids Press, January 15, 2008, at B2; State denies squabble over court move was factor, The Grand Rapids Press, February ___, 2008, at A1; Residents critical of inquiry involving judge , The Grand Rapids Press, February 17, 2008, at B1; Rockford rallies around judge , The Grand Rapids Press, February 20, 2008, at B1; Deputies support Servaas’ bid , The Grand Rapids Press, Februa ry 27, 2008, at B1; Servaas attack called ‘reckless’ , The Grand Rapids Press, March 1, 2008, at A3.17 to two court files. The testimony further indicates that respondent commented on the small chest size of a 2nd division female employee during a retirement party at the 2nd division courthouse. Notably, ev en respondent realized he had made a mistake because he called the employee th e following day to apologize personally to her. Unfortunately, she would not return his calls so he finally left a message on her voice mail apologizing for the gaffe. Respondent’s counsel acknowledged that respondent’s conduct was “inappropriate,” but contended that it was spontaneous and represented “isolated” incidents from respondent’s nearly 37-year career. Respondent’s counsel argues that respondent’s conduct warrants, at most, a public reprimand. This argument is

consistent with the recommendations of the JTC, which indicated that with respect to count 3, respondent’s sexually inapprop riate conduct merited a public censure. We agree with the JTC that respondent’s sexual conduct was crass and inappropriate; however, we do not agree that responde nt’s conduct rises to the level of judicial misconduct be yond requiring public censure. D. Veracity of Respondent’s Testimony While Justice Markman appears to asse rt that whether or not the JTC had the authority to proceed, sanctions agains t respondent are appropriate given Justice Markman’s conclusion that respondent lied under oath. Having reviewed the entire record closely, we do not agree with Justice Markman’ s conclusion that18 respondent lied under oath. 30 On the contrary, we agree with respondent’s counsel

that this is not a case of arrogance. Instead, it appear s that respondent believed that he was still properly in his district and that there was no problem with living

outside of the 1st division. At the time these proceedings occurred, respondent had se ven residences.

He owned homes in both the 1st and 2nd divisions of the 63rd District Court. He rented a home in the 1st division, and he also owned homes in Whitefish Lake, Michigan; Ludington, Michigan; North Ca rolina; and Florida. Respondent

testified that he renovates ho uses as a hobby, and that from 2000 to 2005, he often spent the night at one of the two hous es he was renovating in the 2nd division

when he was too tired to drive back to his 1st division residence.

30 In fact, respondent’s admissions of moving to the 2nd division house establish that respondent believed he had nothing to hide because, under his interpretation of the law, he did not “vacate his office” if he simply lived in another division of the same district. Fu rther, respondent’s fa ilure to change the address on his concealed weapons permit do es not establish th at he intended to deceive anyone. In the fi rst instance, respondent was renewing his permit. Since November 13, 2001, the date the respon dent first applied for the permit, his address remained the same. In fact, as demonstrated by succeeding safety inspection certificates and by his own tes timony for succeeding years, respondent did not even pay attention to the address line as it had already been completed for him by the Rockford Chief of Police. Al l he had to do was sign the permit. Again, rather than a deliberate attempt to deceive officials about his change of address, respondent’s explanation was very credible. Specific ally, the failure to change his address was simply an oversigh t: respondent did not think to read the form and make any corrections, as he ad mitted that he did no t read the form—he just put the gun and the renewe d certificate under the bench.19 Thus, during this five-year period, re spondent testified that he went back and forth between the houses as necessary for the remodeling projects. Certainly he cannot be expected to ha ve to subsequently provide facts establishing that he was residing in one house or two hou ses after so much time had passed and without being prompted by any particular reason to so do. Again, respondent’s actions in this regard support his percep tion that it didn’t matter whether he spent the night at the 1st division house or the 2nd division house, because he was still residing in the 63rd District. Respondent admitted that from 2005 on , he resided in the 2nd division home, and the record reflects that he di d nothing to hide this fact. Indeed, respondent’s name, address, and telephone number for the 2nd division home were listed in the local phone book. Specifically during a meeting in ap proximately late March 2006 between respondent, the SCA and the JTC executive director, the SCA said to respondent, “You’re not living in your district.” In response, respondent said “I am too.” Importantly, we note that even though re spondent was first accused of vacating his judicial office in early 2006, it appears that no assertion was made again until respondent was ambushed on Ja nuary 16, 2008. Again, respondent did not try to deny the fact that he was liv ing in the 2nd division at th at time, because he thought he could live in that division as long as he was not running for re-election. Consequently, we do not conclude that respondent lied under oath. At

times he seemed confused and could not re member a series of different telephone20 numbers (until he later refreshed his reco llection), specific dates and times, and

events that occurred ne arly 10 years before he testif ied. In fairness, we cannot conclude that respondent inte ntionally lied under oath.

III. CONCLUSION

Because we conclude that the only appropriate fo rum to determine whether respondent vacated his judicial office was a quo warranto action filed by the Attorney General in the Court of Appe als, we reject the JTC’s recommendation with respect to the vacati on of office claim. Because the JTC lacked legal authority to bypass submission of the qu o warranto action to the AG, the finding that respondent vacated his office is null and void. The powers held by the JTC simply do not include the power by the JTC to determine the existence of a vacancy in judicial office. Finally, with respect to the claim agai nst respondent for judicial misconduct involving a comment and two drawings of a sexual manner, while respondent’s conduct was unquestionably inappropri ate, we believe, under the unique circumstances of this case that only public censure is required. Accordingly, this opinion stands as our public censure. Pursuant to MCR 7.317(C)(3), we direct the Clerk of the Court to issue the judgment order immediately.

Elizabeth A. Weaver Michael F. Cavanagh Diane M. HathawayS T A T E O F M I C H I G A N

SUPREME COURT

In re Honorable STEVEN R. SERVAAS Judge, 63 rd District Court. No. 137633

WEAVER, J. ( concurring separately ). I authored and join the majority opi nion; however, I write separately to request that this Court open an administra tive file to investigate how this matter unfolded, including the events and actio ns of the Judicial Tenure Commission (JTC) and/or others responsible leading up to the JTC’s reco mmendation of this

case to this Court.

Elizabeth A. Weaver Diane M. HathawayS T A T E O F M I C H I G A N

SUPREME COURT

In re Honorable ST EVEN R. SERVAAS, Judge, 63rd District Court, No. 137633

KELLY, C.J. ( concurring in part and dissenting in part ). I concur in Justice Weaver’s opinion except for part II(A) and the portions

of the introduction and conclu sion discussing quo warranto. I agree with Justice Markman that the existence of an action for quo

warranto does not prevent the JTC from a ssessing respondent’s misconduct, regardless of whether that conduct happens to involve the improp er exercise of a title to office. Accordingly, I concur in part II of Justice Markman’s opinion.

Marilyn KellyS T A T E O F M I C H I G A N

SUPREME COURT

In re Honorable STEVEN R. SERVAAS Judge, 63rd District Court.

No. 137633

MARKMAN, J. ( dissenting ). The Court today rejects the unani mous recommendation of the ninemember Judicial Tenure Commission (JTC) to sanction respondent, Judge Steven Servaas, for misconduct that involves moving outside of the district from which he

was elected in direct viola tion of Article 6, § 20 of the Michigan Constitution, and MCL 600.8201, and thereby fundamentally breaching faith with his constituents; and by then engaging in a pattern a nd practice of actions to conceal this misconduct, including providing false testimony under oath. Based on the Commission’s findings and on the record below, I ag ree with the JTC, and disagree with the majority in its refusal to sanction resp ondent for conduct directly implicating the integrity of the j udiciary. I therefore dissent. Moreover, in rejecting the JTC’s unani mous determination that respondent lied under oath, the majority affords no deference what soever to the Commission’s2 factual findings. 1 Instead, the majority engages in a superficial analysis that does not accurately reflect the record established in this case. Perhaps most remarkably, in asserting that the JTC lacks jurisdiction to sanction respondent, Justice Weaver in he r lead opinion (albeit not a majority opinion in this regard) conclude s that the JTC lacks even the authority to investigate a judge for breaching his or her constitutional obligations, on the grounds that the JTC is forbidden even to undertake actions regarding judicial

misconduct if such misconduct could “in th e first instance” have been addressed by an alternative legal proceeding, in th is case by an action for quo warranto. Justice Weaver’s assertion is a profound ly distorted interpretation of the JTC’s authority and would significantly ci rcumscribe the Commission’s ability to effectively investigate and address instances of judicial misconduct.

I. FACTS In January of 2008, th e JTC initiated proceeding s against respondent, asserting that he had moved outside the 1st division of the 63rd District Court

1 Justice Weaver asserts that this Cour t has “no duty to de fer to . . the JTC recommendation[s] . . . or . . . decision[s],” ante at 12. It may be worth noting that this statement of firm convic tion is directly contrary to In re Brown , 461 Mich 1291, 1293 (2000), in which this Court, including Jus tice Weaver, stated that “[w]here standards . . . have been prom ulgated [by this Co urt] and reasonably applied to individual cases, this Court ow es considerable deference to the JTC.” Further, in In re Chrzanowski , 465 Mich 468, 488; 636 NW2d 758 (2001), again with Justice Weaver in the majority, this Court stated that “[w]e find [the JTC’s] analysis to be reasonably done and therefore accord the recommendations of the JTC considerable deference.”3 located in Kent County, and from which he had been elected, in violation of the

constitution and statutes of this state. 2 This belief was premised on respondent having moved his residence to 201 Honey Creek Avenue, a property located in the

63rd District’s 2nd division. On Ja nuary 16, 2008, th e JTC’s examiner, accompanied by an officer fro m the Michigan State Police, went to respondent’s office to deliver charging papers. The examiner communicated the JTC’s belief that respondent had moved outside his division and, th erefore, had vacated his office. The examiner told respondent he could resign by the next day or else be subject to disciplinary pr oceedings, including an im mediate petition for interim suspension without pay. Respondent did not resign. On January 17, 2008, the JTC filed a petition for interim suspension with this Court on the ground that respondent’s residence was outside the 1st division. The next day, the JTC filed a supplement al petition, arguing that respondent had

2 The 63rd District Court has two divi sions. The 1st division includes the cities of Cedar Springs and Rockford, and the townships of Tyro ne, Solon, Nelson, Spencer, Sparta, Algoma, Courtland, Oakf ield, Alpine, Cannon, Plainfield, and Grattan, and “has 1 judge.” MCL 600.8130(4)(a). The 2nd division encompasses the township of Ada, as well as the citie s of East Grand Rapi ds and Lowell, and the townships of Grand Rapids, Cascade, Vergennes, Lowell, Byron, Gaines, Caledonia and Bowne, and also “has 1 ju dge.” MCL 600.8130(4)(b). Respondent has been regularly elected to, and has main tained his courtroom in, the 1st division in Rockford, Mi chigan since Ja nuary 1973.4 created a “dangerous situa tion” by keeping a loaded pistol behind his bench. 3 This Court unanimously denied this pe tition on February 1, 2008. On February 14, 2008, the JTC filed a second petition for interim suspension, setting forth the additional ar gument that respondent had removed

himself from his elected division and also engaged in inappropriate behavior. The JTC also filed a complaint against respon dent on the same day. The complaint alleged that respondent had vacated hi s judicial office by moving his residence from the 1st division to the 2nd division, an d that he was not a registered elector of

the division from which he was an elected judge. The complain t also alleged that respondent engaged in misc onduct directed toward female court employees. This Court unanimously denied the seco nd petition on Apr il 9, 2008. Pursuant to MCR 9.210(B)(1 ) we appointed a master to hold hearings and make findings of fact and law. 4 The master held a he aring between March 28, 2008, and April 3, 2008, to determine the merit of the a llegations contained in the JTC’s complaint. The mast er found that respondent had moved to 201 Honey

Creek in 2005 in violation of Article 6, § 20 of the Michigan Constitution. By doing so, he was also no longer a “regis tered elector” of the 1st division as

3 During the examiner’s visit on Ja nuary 16, 2008, the Michigan State Police officer confiscated the pistol from an unlocked box behind the bench. The examiner did not allege any misconduct in the complaint based on the pistol, and respondent possessed a valid co ncealed weapons permit.

4 The master was Casper O. Grathwohl, a retired judge from the 2nd Circuit Court in Berrien County.5 required by MCL 600.8201. Thus, the master concl uded that respondent had failed to comply with the constitutional and statutory requirements necessary to hold a judicial position, in violation of Canon 2(B) of the Code of Judicial

Conduct. 5 The master also concluded that certain inappropriate drawings and comments on respondent’s part constituted judicial misconduct and compromised the integrity of the court. Respondent then filed objections with the master’s findings to the JT C in accordance with MCR 9.215. 6 On October 17, 2008, the JTC unanimously agreed with, and adopted, the master’s findings, except that the Commissi on found that respondent had, in fact, moved to 201 Honey Creek in Ada To wnship in 2000 ra ther than 2005. 7 This finding was based primarily on telephone l ogs that the examiner had introduced

5 Canon 2(B) of the Code of Judicial Conduct states: A judge should respect and observe the law. At all times, the conduct and manner of a judge should promote public confidence in the integrity and impartiality of the judiciary. . . .

6 MCR 9.215 states in part: [T]he examiner or the resp ondent may file with the commission an original and 9 copies of a statement of objections to the report of the master, along with a supporting brief.

7 MCR 9.220(B)(1) authorizes the JTC to adopt the master’s findings in whole or in part, and provides: The commission must make written findings of fact and conclusions of law along with its recommendations for action with respect to the issues of fact a nd law in the proceedings, but may adopt the findings of the master, in whole or in part, by reference.6 during the master’s hearing. These lo gs contained telephone numbers that respondent had provided to the district court indicating where he could be located after hours, 8 and showed that resp ondent provi ded his 201 Honey Creek telephone number almost exclusively as his afte r-hours contact location from 2000 until 2008. From these logs, the JTC concluded that respondent’s cons istent listing of 201 Honey Creek as his afte r-hours location for an eight year period indicated that he, in fact, had lived at 201 Honey Creek during that time. Moreover, the JTC found that respondent’s asse rtion that he had not move d outside of his division prior to 2005 demonstrated a “lack of candor and honesty,” which amounted to “false testimony” as to his re sidence from 2000 to 2005. Based on these findings, the JTC reco mmended that respondent be removed from office. He now challenges that re commendation and argues that this Court lacks the authority to sanction him for judicial misconduct because an action for quo warranto constitutes the exclusive lega l proceeding to evaluate his title to

office before his November 2008 reelection. II. QUO WARRANTO Justice Weaver agrees with respondent and asserts that th is Court need not decide whether the allegations set forth in the complaint ar e true “because our

8 As part of his judicial duties, re spondent was required to be “on call” several nights per week in order to respo nd to police requests for warrants, and for other emergencies. Judges and magist rates rotated being on call, and were required to provide an after-hours contact number at which they could be reached.7 statutes, caselaw and court rules provide that a quo warranto action brought by the Attorney General in the Court of Appeals is the only appropriate and exclusive proceeding to make the preliminary dete rmination regarding whether respondent vacated or unlawfully he ld his judicial office .” Ante at 8 (Emphasis in original). In my view, Justice Weaver misapprehends the nature of the action now before this Court, which is a disciplinary proceeding that the JTC and this Court are constitutionally empowered to pursue, Cons t 1963, art 6, § 30(2), not an action directly concerned with respondent ’s current claim to his office. 9 Most importantly, this Court’s authority to sanc tion judicial misconduct is not restricted, or otherwise affected in any way, by the existence of an action for quo warranto, which is only available for the purposes of removing from public office an official who fails currently to hold valid title to that office. Finally, Justice Weaver’s assertion that the JTC, in the context of a disciplinary procee ding which involves the validity of a judg e’s title to office, must rely on the factual findings of the Court of Appeals in a quo warranto action is directly contrary to this Court’s own guidance in In re Kapcia , 389 Mich 306; 205 NW2d 436 (1973), and would

9 Although an action for quo warranto is altogether unrelated to the disciplinary action at issue here, Justice Weaver, and respondent, set forth what I view as an erroneous theo ry suggesting that the JTC has no authority to use any facts that could support a judicial discip linary action if those facts could also be used in a quo warranto proceeding. Because, in my judgment, this theory would preclude this Court from considering fact s that are necessary to fully address respondent’s misconduct and to determine a proportionate sanction, I believe it is necessary to refute this th eory. I reiterate, however, th at Justice Weaver’s theory, although set forth in the lead opinion, does not have majority support.8 undermine the JTC’s duty to make indivi dualized and independent factual findings with regard to whether judicial misconduct has occurred. The JTC is a constitutionally establishe d entity, Const 1963 , art 6, § 30(1), that was created to assist the people of Michigan, and this Court, in evaluating the conduct and behavior of judges currently holding office throughout this state. Article 6, § 30(2) of the Michigan Cons titution describes the relationship between

the JTC and this Court as follows: On recommendation of the judicial tenure commission, the supreme court may censure, suspend with or without salary, retire or remove a judge for co nviction of a felony, physical or mental disability which preven ts the performance of judicial duties, misconduct in office , persistent failure to perform his duties, habitual intemperance or conduct that is clearly prejudicial to the administration of justice. The supreme court shall make rules implementing this sec tion and providing fo r confidentiality and privilege of proceedings. [Emphasis added.] In MCR 9.205(B), this Court has provide d guidance to the JTC for determining what constitutes judicial “misconduct in office”: A judge is subject to censure, su spension with or without pay, retirement, or removal for conviction of a felony, physical or mental disability that prevents the pe rformance of judicial duties, misconduct in office, persistent failu re to perform judicial duties, habitual intemperance, or conduct th at is clearly prejudicial to the administration of justice. In addi tion to any other sanction imposed, a judge may be ordered to pay the co sts, fees, and expenses incurred by the commission in prosecuting the complaint only if the judge engaged in conduct involving fraud, deceit, or intentional misrepresentation, or if the judge made misleading statements to the commission, the commission’s investigators, the master or the Supreme Court.9 * * * (2) Conduct in violation of th e Code of Judicial Conduct or the Rules of Professional Conduct may constitute a ground for action with regard to a judge, whether th e conduct occurred before or after the respondent became a judge or was related to judicial office. (3) In deciding whether actio n with regard to a judge is warranted, the commission shall c onsider all the circumstances, including the age of the allegati ons and the possibility of unfair prejudice to the judge because of th e staleness of the allegations or unreasonable delay in pursuing the matter. In addition, MCR 9.220(B) expressly authorizes the JTC to make both factual and legal determinations re garding whether a judge has committed

misconduct that warrants an official sa nction, which may range from a private censure to removal from office, and, as noted at note 7 supra , it allows the JTC to adopt the master’s findings in whole or in part. Although the JTC and this Court ar e constitutionally vested with the authority to address all matters of judicial misconduc t, Justice Weaver concludes that this authority is implicitly limited by the existence of an action for quo warranto. Quoting Frey v Michie , 68 Mich 323, 327; 36 NW 184 (1888), she notes that the “determination can only be ma de . . . in a quo warranto proceeding.”

Ante at 11. As an initial matter, Justice We aver’s discussion of quo warranto fails to acknowledge that an action for quo warr anto is an entirely distinct legal10 proceeding from a disciplinary action initiated by the JTC. 10 As provided in MCR 3.306(A)(1), [a]n action for quo warranto agains t a person who usurps, intrudes into, or unlawfully holds or exercises a state office, or against a state officer who does or suffers an act that by law work s a forfeiture of the office, must be brought [by the Attorney General] in the Court of Appeals. Because an action for quo warranto can be pursued against “a person” who unlawfully holds any “state office,” including a judgeship, this action, in one sense, has a much broader application th an a JTC disciplinary action, which can only be initiated against a judge. Howeve r, unlike a JTC proceeding, an action for quo warranto is only availa ble to address a narrowly circumscribed range of judicial misconduct, which is restricted to that calling into que stion a judge’s title

to office. To that extent , an action for quo warranto has a more limited application than a JTC disciplinary action. Perhaps most importantly, the fact that these two actions may sometimes be applicable to th e same set of facts, does not alter the distinctive nature of each, and certainly does not indicate that the viability of one is somehow restricted by the existence of the other.

10 In light of the distinct nature of these proceedings, as expressly recognized in this opinion, it is remarkable that Justice Weaver could assert that I somehow claim that “the JTC has [] lega l authority to bring a complaint of quo warranto and a complaint of judicial misconduct in a JTC proceeding.” Ante at 4 n 9 (emphasis added). This is a badly di storted interpretation of what is plainly stated, to wit, that the JTC can never pursue an action for quo warranto under any circumstances.11 Although respondent’s conduct did call into question his title to office between 2000 and 2008, there is no statutor y or constitutional restriction on the JTC’s authority to proceed with an action based upon the misconduct that was represented by his actions. In fact, despite the fact that an action for quo warranto and a JTC disciplinary action may overlap in their appli cability to some instances of judicial misconduct, as th ey did here prior to the da te respondent began serving his new term of office in 2009, Justice We aver has supplied no rationale as to why an action for quo warranto, which was crea ted by the Legislatur e and this Court,

should constitute the exclus ive means to address such misconduct, especially in

view of the fact that the JTC is the onl y entity that is constitutionally empowered

to address all matters of judicial misconduct.

In addition to the fact th at an action for quo warranto is altogether distinct from a JTC disciplinary proceeding, ther e are three supportive arguments for why an action for quo warranto has no application in the inst ant context. First, an action for quo warranto is only applicable to claims that a public official is currently exercising an invalid title to office. 11 This observation is supported by MCL 600.4505, which describes the nature of a quo warranto action:

11 Justice Weaver asserts that “[t]here is no support for [my] argument,” ante at 8 n 15, that “actions for quo warranto may only be brought against claims that an officer is currently exercising an invalid title to office.” (Emphasis added.) Quite apart from the law that has been cite d in this section, Justice Weaver seems to be unaware that a judge who previously held unlawful title to office could never be subject to a quo warranto action because the issue would necessarily be moot.12 (1) In actions brought against pe rsons for usurpation of office, the judgment may determine the right of the defendant to hold the office. If a party plaintiff alleges that he is entitled to the office, the court may decide which of the partie s is entitled to hold the office. (2) If judgment is rendered in fa vor of a party who is averred to be entitled to the office, he is entitled, after taking the oath of office, and executing any official bond which is required by law, to take the office. Such party shall be given all the books and papers in the custody of the defendant, or w ithin his power, be longing to the office. Significantly, MCL 600.4505 uses langua ge written exclusiv ely in the active voice, which suggests that the Legislatur e did not intend for this action to be initiated against a public official who is not currently holding office or who has previously exercised title to his or her office improperly. Indeed, as indicated in MCL 600.4505, and further supported by MCL 600.451 1 and MCL 600.4515, an action for quo warranto is most frequently the procedure employed to resolve conflicting claims to office. 12 MCL 600.4511 provides: When an action is brought against a person for usurping an office and the person rightfully entitle d to the office is a party and

12 The only apparent exception to th e rule that a quo warranto action may only be brought to oust an officer who is currently exercising authority under an invalid claim to office is described in Osterhous ex rel Vander Veen v Van Duren , 168 Mich 464, 466; 134 NW 456 (1 912), in which this Court stated: Ordinarily proceedings to try title to a public office cannot be brought after the term has expired, or when it is so nearly expired that the inquiry would be of no effect; but an action commenced during the term of office may be prosecuted to final judgment after the expiration of the term, for th e recovery of damages or costs which relator has sustained or in curred by the wrongful assumption of authority.13 avers his right to it, and judgment is rendered in his favor, he is entitled to any damages sustained b ecause of the usurpation by the defendant of the office from which the defendant has been evicted. The claim for damages may be joined with the claim for quo warranto, or brought separately with in 1 year after the judgment in the action for quo warranto. MCL 600.4515 provides: Whenever any defendant in a quo warranto proceeding is found or adjudged guilty of usurpi ng or intruding into or unlawfully holding or exercising any office, franchise, or privilege, judgment shall be rendered that the defe ndant be ousted and altogether excluded from that office, franchis e, or privilege. In addition to awarding costs against the defendant, the court may, in its discretion, impose a fine upon the defend ant found guilty, not exceeding $2,000.00. Thus, MCL 600.4511, again using the active voice, sugge sts that an action for quo warranto constitutes a proced ure intended to resolve conflicting claims to an office, regardless of whether misconduc t was involved, by determining which party has the superior current claim. 13 Because there is no dispute as to

13 Although quo warranto is most often used to determine competing claims to an office, Lamoreaux v Ellis , 89 Mich 146, 161; 50 NW 812 (1891), nonetheless makes clear that an action for quo warranto may be used to oust a current “intruder” from office ev en without a competing claim. Lamoreaux states: The attorney general ought no t to institute proceedings by quo warranto upon the relation of a citizen having no claim of title to the office, unless the showing is such as to afford reas onable grounds for the belief that the incumb ent of the office is an intruder therein, or one not competent under the Constitution to hold it. [ Id .] Indeed, this is the purpose for which the writ was originally employed in England. Although the writ dates back as far as the reign of Ki ng Richard I (1189-1199), it was most notably invoked during the rei gn of King Edward I (1272-1307).14 respondent’s current claim to office, an action for quo warranto has no application to the present facts. Second, MCL 600.4515 prov ides that the sole remedy for a quo warranto action is that a “judgment shall be rendered that defendant be ousted . . . .” 14 By contrast, a disciplinary action initiated by the JTC can result in a range of sanctions spanning from a simple censure to removal from office, see Const 1963,

Claimants were to appear before them [itinerant judges riding in circuit], and if it was found that they actually held any franchise, a writ of quo warranto would be served on them, requiring them to show by what warrant they claimed to have the liberty of wreck, or gallows, or view of frankpledge, or return of writs, or whatever it might be. Frohnen, The one and the many: Individual rights, corporate rights and the diversity of groups , 107 W Va L R 789, 818 (2005). If the claimant could not answer the writ succ essfully by showing th e proper exercise of title, the franchise could be confiscated by the Crown. Id . The writ was then carried over to America in 1685 when King James II uns uccessfully attempted to use quo warranto proceedings to “revok[e] the colonial ch arters of the proprietary colonies in New England[]” as a method of maintaining co ntrol over the colonies. Gitelman, The separation of law and equity an d the Arkansas chancery courts: Historical anomalies and political realities , 17 U Ark Little Ro ck L J 215, 228 (1995). Thus, both historically and cu rrently, quo warranto actions have never been used to ascertain whether an officer or franchise-holder previously exercised proper title to office, and never has the writ been invoked to discern whether the one who claims valid title has en gaged in misconduct, much less previous misconduct. 14 See Attorney General ex rel Cook v Burhans , 304 Mich 108; 7 NW2d 370 (1942) (“The attorney general . . . by information in the nature of quo warranto, seeks ouster of defendant from the office of regent of the University of Michigan on the grou nd that he has no legal right to the office and is a mere usurper therein . . . Defendant having usurpe d the office of regent, in defiance of the mandate of the constitution barring hi m under any circumstances from holding such office and render ing all votes cast for him void, it was proper for the attorney general to bring this proceeding in the nature of quo warra nto to oust him from such office.”); Layle v Adjutant General , 384 Mich 638, 642; 186 NW2d 559 (1971), citing Sobocinski v Quinn , 330 Mich 386; 47 NW2d 655 (1951) (“[P]laintiff instituted quo wa rranto proceedings to oust de fendant from office[.]”).15 art 6, § 30(2), and the JT C and this Court must u ltimately determine what constitutes a “reasonable relationship,” or “proportionality,” between particular

misconduct and these available sanctions. In re Brown , 461 Mich 1291, 1292 (2000). Thus, the inflexible “one size fits all” remedial aspect of a quo warranto action also demonstrates why the disciplin ary action being pursued by the JTC is the proper proceeding in which to address respondent’s misconduct. Third, as this Court concluded in Kapcia , 389 Mich at 314, the JTC is prohibited from relying on, or adopting, another enti ty’s factual findings and conclusions as a basis for recommending that this Court impose a sanction for judicial misconduct; rather, the JTC must make independent factual findings in this regard. In Kapcia , the Attorney Grievance Commission revoked the respondent’s license to practice law. However, shortly thereafter, the respondent was elected as a probate judge. The JTC, citing the revocation of the respondent’s law license, argued that the respondent had violated Article 6, § 19 of the Michigan Constitution, which re quires all judges in this state to have a valid law

license. 15 Thus, the JTC concluded that the respondent had vacated his office and had therefore committed judicial misconduct. This Court rejected that argument, stating:

15 Article 6, § 19 states that “justices and judges of courts of record must be persons who are licensed to practice law in this state.”16 Manifestly, this contention begs the question; it presupposes that the removal from office which the [JTC] seeks by these proceedings to accomplis h has already occurred. The [JTC]’s presentation proceeds on the erroneous assumption that the [JTC] had no c hoice once it was established that Judge Kapcia had been suspended from the practice of law but to recommend his removal and that this Court, likewise, has no choice but to remove him; that, indeed th ere truly is nothing before us to consider because the considerati on of whether the professional misconduct charged against Judge Kapcia was proven and what to do about it ended when the order of the Grievance Board became final. The discipline of judges is conf ided to the discretion of the [JTC] and this Court under § 30 of art 6. It is left to [a] case-by-case exercise of discretion to decide whether a justice or judge— presumably duly licensed to prac tice law when he qualified as a justice or a judge—whose conduct resu lts in [the] loss of his right to practice law should be disciplined by removing him from office. [ Kapcia , 389 Mich at 314.] Ultimately, Kapcia concluded that the JTC must investigate the facts underlying the Attorney Grievance Commission’s decision to suspend the respondent’s license in order to determine if judicial miscondu ct had occurred. Thus, had the Commission commenced a proceeding against Judge Kapcia charging him with misconduct based on the acts which gave rise to the State Bar grievance proceedings, the Commission would have been obliged to cons ider all the circumstances in deciding whether to recomme nd disciplinary action. The Commission’s responsibility in that regard cann ot be avoided by viewing the matter as a fait accompli . Nor can we, by total reliance on the decision reached in the gr ievance proceedings, escape our responsibility to exercise an individualized judgment. [ Id . at 312.] In holding that the JTC ca nnot escape its responsi bility to “exercise an individualized judgment” based on “a ll circumstances,” to determine what disciplinary action is appropriate, Kapcia indirectly observed that the JTC and this17 Court must possess the author ity to examine a judge’s misconduct for actions that may also serve as the basis for a quo warranto action. Specifically, Kapcia distinguished cases on whic h the JTC had relied, in wh ich judges had been ousted from office for losing their license to practice law, thereby amounting to a vacation of office, because those cases all involved actions for quo warranto. Id

. at 313-314. There is simply no reason for this Court to have discussed the proper procedure for pursuing disciplinar y actions against the judge in Kapcia , while expressly recognizing that other cases fo r quo warranto have re sulted in ousting a judge from office for lo sing his or her license, if the JTC is not empowered to make recommendations for disciplinary acti ons, which this Cour t is then free to accept or reject, based on conduct that coul d also form the basis of a quo warranto

action. 16 In contrast to this Court’s holding in Kapcia , the majority states:

While this Court could certain ly review on appeal the decision made by the Court of Appe als in a quo warranto action, and could determine whether the condu ct surrounding respondent’s forfeiture of office rose to the level of judicial misconduct warranting judicial discipline, an original proceeding in the Supreme

16 Justice Weaver states that Kapcia “does not support” the assertion that “actions for quo warranto may only be brought for cl aims that an officer is currently exercising an invalid title to office.” Ante at 8 n 15. However, I do not cite Kapcia for such a proposition. Rather, I cite Kapcia only for the proposition that the JTC is prohibited fro m using the findings of an other entity as a substitute for engaging in its own factual inquiries. Thus, Kapcia is pertinent here by establishing that the JTC cannot simply adopt the Court of Appeals’ findings of fact in a quo warranto action as a subs titute for making its own independent factual findings regardi ng judicial misconduct.18 Court is not the appropriate place to determine in the first instance whether respondent vacated his office. Rather, the law requires that this question be initiated by the Atto rney General and resolved as an initial matter by the Court of Appeals. [ Ante at 10.]

Justice Weaver’s assertion that a quo warranto action is a prerequisite to the JTC’s, and this Court’s, ability to make determinations that respondent committed misconduct, including specifically the va cation of office, by stating that “an original proceeding in the Supreme Court is not the appropriate place to determine

“ in the first instance ” that misconduct occurred, is exactly counter to Kapcia ’s

counsel that the JTC’s “res ponsibility in that regard ca nnot be avoided by viewing

the matter as a fait accompli .” Rather, the JTC must ma ke independent findings of fact that misconduct occurred, irrespect ive of another entity’s findings and conclusions regarding the same issue. Ther efore, even if the Attorney General had successfully pursued a quo warranto action against respondent during his prior term in office, the JTC would still have had to make its own factual findings that respondent vacated his office in a current disciplinary proceeding as a precondition to the conclusion that such a vacation of office constituted judicial

misconduct.

Justice Weaver demonstrates her conf usion in this regard by stating: By analogy, Const 1963, art 6, § 30, provides that this Court may discipline, retire or remove a judge for convictio n of a felony. It could hardly be argued, however, that this Court rather than the circuit court should adjudicate an d convict the judge of the felony simply because the unresolved pr edicate issue arose during the course of a judicial disciplinary proceeding. [ Ante at 9 n 22.].19 This Court does not “convict a judge of [a ] felony” simply because the same facts that support the felony are presented “dur ing the course of a judicial disciplinary proceeding.” Rather, a disciplinary proceed ing against a judge may properly lead to a finding of facts by a preponderance of the evidence that judicial misconduct has occurred, In re Noecker , 472 Mich 1, 8; 691 NW2d 440 (2005) (holding that the examiner has “the burden of proving th e allegations by a pr eponderance of the evidence”), which might otherwise constitute a felony if found by the circuit court beyond a reasonable doubt. 17 Justice Weaver’s example of the circuit court having to find that a felony actually occurred before the JTC can recommend that the judge be removed for committi ng a felony does not addr ess the issue now before this Court. Article 6, § 30(2) of th e Michigan Constitution explicitly allows a sitting judge to be removed from office if he is found guilty of a felony. This is

17 This observation also seems to have led to confusion on Justice Weaver’s part, whereby she notes that “it could hard ly be argued, however, that this Court rather than the circuit cour t should adjudicate and convi ct the judge of the felony simply because the unresolved predicate issu e arose during the course of a judicial disciplinary proceeding.” Ante at 10 n 24. Once agai n, despite an express statement to the contrary, in this instance that “this Co urt does not convict a judge of a felony,” but rather finds “by a prepond erance of the eviden ce that judicial misconduct has occurred,” Justice Weaver directly misrepresents the proposition being asserted. See also note 8, supra . Neither this Court nor the JTC can convict a judge of a felony. However, the JTC can consider, as a basis for recommending that a judge be sanctioned, the underl ying actions that constitute judicial misconduct. For example, a judge who a ssaults another person, but who is not ultimately convicted for one of any number of reasons unrelated to his culpability, may still be subject to a JTC disciplinary action on the basis of such conduct. Does Justice Weaver truly disagree with this same proposition? Does she believe that a judge under these circumstances w ould be immune from a JTC disciplinary action?20 one of several specifi cally enumerated situations in the constitution that effectively establish a substituted process, i.e., a process allowing th e JTC and this Court, to view something as a “ fait accompli ” without requiring an individualized factfinding process to determine that a judge has engaged in misconduct. 18 Kapcia , 389 Mich at 313. Notably, however, an action for quo warranto is not one of the specifically enumerated situations th at would allow the JTC to bypass its responsibility to make an “individua lized judgment” based on “all the circumstances,” which is required before the JTC can recommend that this Court sanction a judge for misconduct. In sum, Justice Weaver’s failure to recognize the distinction between a quo warranto action and a disciplinary action is of critical importance. She is correct that an action for qu o warranto constitutes the “exclusiv e method for trying title to office,” Gildemeister v Lindsay , 212 Mich 299, 303; 180 NW 633 (1920), but the

exclusive nature of such an action would exist in regard to a judge only if no judicial misconduct was involved. Wher e a judge’s actions constitute misconduct

and a vacation of office, both an action for quo warranto, initiated by the Attorney General, and a disciplinary proceeding, initiated by the JTC, may be pursued. Here, the JTC has initiated a disciplinar y action based on re spondent’s misconduct which, as a result of his intervening reel ection in November 2008, now pertains to

18 See Kapcia , 389 Mich at 313, for a listing of these specifically enumerated situations.21 respondent’s previous term in office, which in turn means an action for quo warranto is no longer apposite. Furthe r, unlike an action for quo warranto, a disciplinary action initiated by the JTC can address a judge’s misconduct that

occurred before his current term in office, MCR 9.205(B )(2), and may result in an appropriate sanction short of removal fro m office. MCR 9.205(B). Because an action for quo warranto cannot lie where th e term of office for which the title being contested has expired, Layle , 384 Mich at 642, 19 which as Justice Weaver correctly notes is exactly the situation now before this Court because of respondent’s reelection in 2008, the only avenue available to address his past conduct is the very type of disciplinary proceeding that the JTC has initiated here. As a consequence, this Court does possess the authority , derived from the

19 Indeed, if the Attorney General pu rsues a proper action for quo warranto, but, before that claim is resolved, the judge wins a subsequent reelection, the action becomes moot and must be dismissed. As we stated in Layle , supra at 645: Even if the office has not been abolished, proceedings to try title to a public office cannot be br ought after the term has expired, or even if it is so nearly expire d that the inquiry would be of no effect. Osterhous ex rel Vand er Veen v Van Duren , 168 Mich 464; 134 NW 456 (1912). The writ ge nerally will not lie to try the abstract title to an office. Although such a result initially may seem anomalous, the fact that a quo warranto action cannot survive w ithout an ongoing dis pute regarding an individual’s title to office simply emphasizes the point that an action for quo warranto is of a fundamentally different nature than a di sciplinary action initiated by the JTC. Whereas an action for quo warranto is only viable so long as there remains a current dispute regarding a judge’s title to office, a disciplinar y action arising from misconduct that undermined one’s title to o ffice remains available after the title dispute has been resolved or rendered moot.22 constitution, to sanction respondent fo r his misconduct, based on the JTC’s findings of misconduct and re commendation for discipline. 20 Finally, Justice Weaver’s misu nderstanding of quo warranto would generate several notable consequences. As an initial matter, Justice Weaver concludes that the JTC is precluded from bringing a disciplinary action against respondent in the absence of an action for quo warranto. That is, this Court would not be entitled to accept the JTC’s reco mmendation for disciplinary action based on a judge’s misconduct that also called into question even his current title for office if the Attorney General, an i ndependent executive-branch officer, was unwilling for any reason to pursue an ac tion for quo warranto. This, in my judgment, is a significant limitation up on the JTC’s, and this Court’s, constitutional prerogatives that is nowher e found within Article 6, § 30(2).

20 Justice Weaver claims that my ar gument “conflates the complaint of vacation of office with other complaints c oncerning inappropriate sexual conduct.” Ante at 4 n 9. As with several of he r other arguments, see notes 8 and 15, supra , this has utterly no basis in the actual langua ge of this opinion. As should be quite clear to the ordinary reader, the discussi on of quo warranto in this opinion is only relevant to whether respondent can be sa nctioned for his “misconduct” of vacating the district from which he was elected. By its very terms, the discussion of quo warranto has no relevance to any other alleged incident of misconduct in this case. The lack of regard for precision in la nguage is further reflected in Justice Weaver’s characterization that I describe her rejection of the JTC’s recommendations as “unbelievable,” ante at 11, a word I use only in an entirely different context with referenc e to certain actions of the respondent

. Infra at 45. My actual analysis of Justice Weaver’s op inion is that it is legally and constitutionally unsound, c onfused in its understa nding of the record, and unconcerned by logical consequences , not that it is “unbelievable.”23 Equally important, such a result would undermine the very purpose of this constitutional provision, i.e., to foster p ublic confidence in the integrity of the judiciary. Additionally, Justice Weaver would apparently extend her novel quo warranto analysis to judicial misconduct th at alternatively gives rise to a potential felony charge. By doin g this, she would prohibit the JTC from recommending disciplinary action against a judge based on the underlying ac tions for such a charge unless there was a fo rmal felony conviction. This remarkable proposition would allow judges in this state to comm it criminal behavior for which the JTC would have no authority to address. U nder Justice Weaver’s misapprehension of the JTC’s constitutional authority, the underlying conduct forming a felony charge, whether assault, theft, arson, or fraud, could not then form the basis for a finding of judicial “misconduct in office,” because “it is only wh en [a trial] court process legally determines a ju dge is guilty of [a felony]” ante at 13, that the JTC can then “bring a proceeding for judicial misconduct,” id ., based on the facts necessary to support that conviction. Ante at 12 n 25. 21 Justice Weaver’s arguments find absolutely no support in the law or constitution of this state. 22

21 The extent to which Ju stice Weaver would apply her analysis to other contexts such as when a judge engages in acts that could form the basis of a misdemeanor conviction, or even a civ il penalty, imposed by a trial court or administrative agency, is unclear. That su ch circumstances may not be involved in the instant case does not, of course, make it any less irresponsible to propose a new constraint upon the JTC and leave open to question the extent to which this constraint will be carried out to its logi cal ends. Almost certainly, if Justice24 In sum, the existence of an action for quo warranto does not prevent the JTC from assessing responde nt’s misconduct, regardless of whether that conduct happens to involv e the improper exercise of a title to office. Once that assessment has taken place and a recommendation made, as here, this Court is fully authorized to consider that recommendation, and I would do so.

III. EXAMINER’S CONDUCT As previously noted, the JTC’s examin er visited respondent’s chambers and demanded that he resign from his position. I concur with th e facts in this regard as set forth by the majority, and agree that, at present, “the proper forum for the

review of the JTC director’s actions is the Attorney Gr ievance Commission.”

Ante at 16. Weaver’s unprecedented unde rstanding of the JTC’s auth ority was to prevail, it would ensure that judges subject to JT C discipline routinely raise the “Weaverdefense,” i.e., that their conduct fell be yond the scope of the JTC’s authority, at least until a trial court or administrative body had “in the first instance” rendered a decision. For what it is worth, Justice Weave r’s theory also contradicts her own dissenting opinion in In re Gilbert , 469 Mich 1224, 1234 (2003), cf. note 2 supra , in which she opined that “judicial disciplin ary proceedings are neither criminal nor quasi-criminal in nature.” Id . In Gilbert , Justice Weaver critic ized the majority for not imposing a more severe sancti on on Judge Thomas Gilbert for smoking marijuana, id .-- an action for which Judge Gilber t could have been, but was not, criminally convicted

. 22 Also of concern is whether, under Ju stice Weaver’s theories, the JTC and this Court would be bound by the factual and legal fi ndings of trial courts and administrative agencies in cases of judicial misconduct. This Court in Kapcia conclusively answered this question in the negative, but this is precisely what Justice Weaver suggests is requi red of the JTC and this Court.25 I do disagree, however, with the major ity’s implication that the tactics engaged in by the examiner, even if they eventually prove to have been wrongful or inappropriate, have any particular relevance to the matter now before us. This Court cannot, as a function of the examiner ’s behavior, avoid its responsibility to address respondent’s misconduct. To do so would be tantamount to adopting, in the context of judicial discipline, some variant of the “exclusionary rule,” which requires “the exclusion of reliable evid ence when the constable blunders.” Stone v

Powell , 428 US 465, 496; 96 S Ct 3037; 49 L Ed 2d 1067 (1976). Here, there is no claim that the examiner obtained any evidence in this cas e by unlawful means. Moreover, if we were to allow the examin er’s troubling behavior to influence our evaluation of respondent’s misconduct by fail ing to impose a sanction based solely on respondent’s misconduct, our decision w ould be contrary to MCR 9.200, which

states: An independent and honorable judiciary being indispensable to justice in our society, subcha pter 9.200 shall be construed to preserve the integrity of the judi cial system, to enhance public confidence in that system, and to protect the public, the courts, and the rights of the judges who are gove rned by these rules in the most expeditious manner that is practicable and fair. In sum, disregarding a judge’s misconduc t out of disdain for the examiner’s behavior is not a rational response desi gned to “preserve th e integrity of the judicial system,” nor does it “enhance public confidence in that system.” Thus, in keeping with this Court’s re sponsibility to uphold the integrity of the judiciary, the Court should determine an appropriate sanction based solely on respondent’s26 misconduct, irrespective of the examiner’s conduct which remains the subject of

administrative consideration at this time.

IV. STANDARD OF REVIEW

This Court reviews the JTC’s fa ctual findings and disciplinary

recommendations de novo. Noecker , 472 Mich at 8. 23 “The JTC’s finding of misconduct must be supp orted by a preponderance of the evidence.” In re Haley , 476 Mich 180, 189; 720 NW2d 246 (2006). However, “[ a]lthough we review the JTC’s recommendations de novo, this Co urt generally will defer to the JTC’s recommendations when they are adequately supported.” Id . See also Chrzanowski , 465 Mich at 488; Brown , 461 Mich at 1293.

V. RESPONDENT’S CONDUCT A. Violating Law and Constitution

The JTC has issued a de cision and recommendation for discipline in this case concluding, among other things, that respondent moved outside the division

from which he was elected in violation of Article 6, § 20 of the constitution and that he was not a registered elector of the division from which he was elected, as required by MCL 600.8201. Acco rding to the JTC, these ar e violations of the law and constitution that also constitute j udicial misconduct sanctionable under

23 “[I]t is the JTC’s, not the mast er’s, conclusions and recommendations that are ultimately subject to review by this Court.” In re Chrzanowski , 465 Mich at 481.27 Canons 1 and 2 of the Code of Judicial Conduct and Article 6, § § 20 and 30(2) of

the constitution. 24 I agree. Article 6, § 20 of the Michigan Constitution states: Whenever a justice or judge removes his domicile beyond the limits of the territory from which he was elected or appointed, he shall have vacated his office. The “territory from which he was elected” necessarily means the geographic location from which respondent received the requisite number of votes to obtain his judicial office, i.e., the 1st division of the 63rd District Court. 25 Additionally,

24 Code of Judicial Co nduct, Canon 1 states: An independent and honorable j udiciary is indispensable to justice in our society. A judge sh ould participate in establishing, maintaining, and enforcing, an d should personally observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. A ju dge should always be aware that the judicial system is for the benefit of the lit igant and th e public, not the judiciary. . . .

25 Respondent argues: The territory from which he was elected is the 63rd District. This is one district, with two divi sions. MCL 600.81 30(4). The fact that it has two divisions does not make it two districts. In fact, the legislature, in creating divisions of a district court, explicitly stated, “The provision for election divisions of a judicial district have no effect on the administration of a judi cial district.” MCL 600.8102. [Respondent]’s residence at 201 Honey Creek Drive in Ada is undeniably within the 63rd District . He has always maintained his principal residence in one of the divisions of the 63rd District. Contrary to this argument, respondent does not dispute that he was elected exclusively from votes cast within the 1st division . Therefore, it is the 1st division that constitutes the “territory from which he was elected,” not the 63rd District. Indeed, as stated by the JTC:28 “domicile” is defined as “[t]hat place where a man has his true, fixed, and permanent home and principal establishment and to which, whenever he is absent,

he has the intention of return ing.” Black’s Law Dictionary (5th ed). A domicile is “that place where a person has voluntarily fi xed his abode not for a mere special or temporary purpose, but with a present in tention of making it his home, either permanently or for an indefinite or unlimite d length of time.” Henry v Henry , 362 Mich 85, 101-102; 106 NW 2d 570 (1960) (citation and quotation marks omitted). “One cannot be permanently located in more than one place; one cannot be domiciled in more than 1 place; one can not intend to remain for an extended period of time in more than 1 place.” In re Scheyer’s Estate , 336 Mich 645, 651- 652; 59 NW2d 33 (1953). “Generally, th e determination of do micile is a question of fact. However, where, as here, the unde rlying facts are not in dispute, domicile is a question of law for the court.” Fowler v Auto Club Ins Ass’n , 254 Mich App 362, 364; 656 NW2d 856 (2002). Further, MCL 600.8201 requires that “a candidate for and a judge of the district court shall be licensed to practice la w in this state and shall be a registered

elector of the district and election divisi on in which he seek s to hold office.”

The sincerity of respondent’s pr oposed broad interpretation of the provision is called into questio n by his explanation at the hearing that he believed he had to be domiciled within the 1st Division [only] when he was “running” for re-election.29 During the master’s hearing, responde nt testified to the following facts regarding his domicile between 2000 and 2008, which the JTC used in rendering its decision. Respondent stated that from 1984 until 2000 he owned a house on South Monroe Street, within the 1st di vision, where he pur portedly lived until 1999. In 1998, he purchased a home on 201 Honey Creek Avenue in Ada Township, an area outside the 1st division fr om which he was elec ted. He claimed

that he was not domiciled ther e until 2005. Respondent tes tified that the year after he bought the property at 201 Honey Cree k, he sold the Monr oe Property because he “needed the money,” and then moved to his sister’s house at 260 Oak Street, within the 1st division, “where I was basi cally a tenant, and that was in 2000.” More specifically, respondent stated,“[W]hen I bought 20 1 Honey Creek, that was a lot of money for me, and that’s why I sold the [Monroe Prop erty] and moved to my sister’s house [at 260 Oak Street], wh o was kind enough not to charge me any rent[.]” Respondent changed his license and voter registration to reflect this move.

He claimed that he maintained this liv ing arrangement until 2 002, when he began renting an apartment located on Thirteen Mile, which was also in the 1st division. Respondent again changed both his driver ’s license and voting address to his Thirteen Mile property. However, during this time, respondent admits that he spent a “significant” amount of time at 201 Honey Creek and slept there “a lot.” In other words, respondent testified that he sold his primary residence in 1999 so he could fix up 201 Honey Creek and live with his sister at no cost until 2002, when he began living at Thirteen Mile.30 In 2002, respondent purchased anot her property, 109 Honey Creek, and then purchased yet another property on Belding Road, which is within the 1st division, and as to which he testified, “I bought that in June of, I think 2003, and I didn’t move there until early 2004. And I lived at [Thirteen Mile] until I moved in, but it wasn’t when I bought it.” 26 Respondent changed his voter registration on March 11, 2004, and his driver’s license on March 23, 2004, to the Belding Road address. However, he registered his maili ng address with the Secretary of State as being the address of the 1st division co urthouse. In regard to the period immediately following respondent’s purchase of 109 Honey Creek, he testified to the following: That house [109 Honey Creek] I had to get done because there was a person that wanted to buy it, and so I was down there a lot and I worked late into the night, and a number of times I just went up and slept at 201 [Honey Cr eek]. If I didn’t wo rk that late, I went back to the Bostwick Lake, Belding Road address. Respondent stated that Be lding Road continued to be his domicile until December, 5 2005, when he moved to 201 Honey Cr eek, which was further confirmed by his filing of a homestead ex emption for 201 Honey Creek in 2006. However, despite admitting that he was domiciled at 201 Honey Creek after 2005, respondent testified that, in 2007, he (a ) voted within the 1st division using his

26 Respondent testified that his da ughter contributed to purchasing the Belding Road property as an investment but that she never lived there. Additionally, respondent testif ied that the property was actually an “investment for [him] also, but it’s [his] – the place where [he] was liv ing at the time.”31 Belding Road address, 27 (b) applied for a concealed weapons permit on February 7, 2007, using his Belding Road address, 28 (c) never changed his voter registration to 201 Honey Creek, 29 and (d) never changed his driv er’s license to the 201 Honey

Creek address. 30 He also admitted knowing that he had to change his voter registration and driver’s licen se, and, despite consisten tly doing so during every move from 2000 to 2005, he failed to do so once he moved to 201 Honey Creek. From this testimony, respondent expre ssly admits to moving outside the 1st division to 201 Honey Creek as of 2005. He also admits that he intended for that

location to be his domicile. Both of these admissions are reflected in the master’s and the JTC’s findings of fact. These admissions alone are sufficient to demonstrate that respondent moved outsid e of “the territory from which he was elected,” which is a vi olation of Article 6, § 20 of the constitution. Similarly, the fact that respondent moved outside of the 1s t division made him in eligible to be “a

27 The examiner asked respondent: “And [after moving to 201 Honey Creek] you actually voted using your Be lding address while you were living in Honey Creek; is that right?” Respondent answered: “Yes.”

28 The examiner asked respondent in regard to his February 7, 2007 concealed weapon permit: “And on that app lication, you list your Belding address as your primary residence; is that corr ect?” Respondent answered: “That’s correct.”

29 The examiner asked respondent: “You didn’t change your voter registration to [201 Honey Creek]; right?” Respondent answered: “No.”

30 The examiner asked respo ndent: “You didn’t change your driver’s record or information with the Secretary of Stat e [to 201 Honey Creek] either, did you?” Respondent answ ered: “No.”32 registered elector” of that division, regardless of the fact that respondent improperly voted in that division after 200 5 in violation of MC L 600.8201. Thus, respondent failed to co mply with Article 6, § 20 of the cons titution and MCL 600.8201, which is also violative of Ca non 2(B) of the Code of Judicial Conduct’s requirement that a judge “observe the la w,” and as a result Canon 1’s requirement that a judge maintain the “i ntegrity” of the judiciary. ” Additionally, respondent’s

conduct runs afoul of MCR 9.104: (A) The following acts or omissions by an attorney, [31] individually or in concert with another person, are misconduct and grounds for discipline, whether or not occurring in the course of an attorney-client relationship:

* * * (2) conduct that exposes the legal profession or the courts to obloquy, contempt, censure, or reproach[.] There can be no question that a judge’s failure to obey the law, which he has taken an oath to uphold, “exposes the legal profession [and] the courts to obloquy, contempt, censure, or reproach.” B. Breaching Faith Beyond acting in dereliction of the la w, respondent in a very fundamental

sense has broken the bond s with the people of hi s district. By his own acknowledgement, he has kn owingly departed from their political community to

31 Because all elected judges within this state must be licensed attorneys, the court rules governing attorney conduc t apply with equal force to judges.33 become part of another political comm unity. While there may well be some artificiality to these political communitie s, and while the economic, social and

cultural circumstances of the 2nd divisi on may not be markedly different from those of the 1st division, our system of republican government nonetheless is predicated upon the idea th at the “we the people” are en titled, and are obligated, to

assert their control over the actions of government through the selection of local representatives. By this process, the people communicate their views concerning the kind of leadership they desire from their public in stitutions. Particularly in the case of the selection of judges-- persons w ho do not ordinarily make public policy,

and who cannot be considered “representative” officers in the same sense as persons elected to the legislative a nd executive branches of government-- 32 there

32 See, e.g., People ex rel Royce v Goodwin , 22 Mich 496, 499-500 (1871):

When we consider the nature of [judges’] functions, their independence of local affairs beco mes still more apparent. Judges differ from all other public servan ts in having no representative duties. The judicial department of every civilized government is one of the three co-ordinate parts of the sovereignty which acts for the state in expounding the laws a nd enactments in which the other departments have acted for the people as legislators and the approvers of legislation. It re presents only the law by which the people have, by their proper agen ts, bound themselves. It cannot, therefore, in any of its duties, be sa id to serve any c ounty, or circuit, or district. Its services are all perfo rmed on behalf of the state, as the sovereignty from which all the law emanates . . . . [T]he only object of having local courts is to brin g justice home to the people, but not to have cases decided as the desi re of the people might shape the decision.34 must be some further rationale for why a ll judges of our stat e, with the exception of Supreme Court Justices, are elected by “districts” or “circuits.” See Const 1963, art VI, §§ 8, 11, and 16. 33 At least part of this explanation mu st certainly be that the people are entitled to select as their judges persons whose sense of values, whose judgment, whose life experiences, are in some sens e a function of their roots within that community, persons who have shared in so me tangible way the day-to-day trials and tribulations, and influences, of citiz ens within that comm unity. Although the shared experiences of persons within th e 1st and 2nd divisions may not be as dissimilar as those between more geogr aphically far-flung communities, it is

That is, judges are presumed to speak, not on behalf of their constituencies, or on behalf of particular concerns within thei r constituencies, but on ly to represent the interests of the law, to speak for the ru le of law. This is one reason why the Framers of the United States Constitution di d not see the need to provide for the popular election of judges as they did fo r members of Congress and the President. The people of Michigan have made a di fferent judgment in their constitution.

33 In addition to the constitutional provisi ons applicable to this analysis, the Legislature has enacted MCL 168.467f(1), wh ich makes clear that district court judges must also be elect ed from their respective divisions or districts. MCL 168.467f(1) states: Except as otherwise provided in this section, judges of the district court shall be elected in each judicial district and election division of a judicial district at the general election to fill vacancies in office[.] Thus, regardless of the rationale for why the people have chosen to require that district court judges be elected from the district and division in which they will serve, the people have unmista kably decided that such a requirement should exist, and that decision must be respec ted by the JTC and this Court.35 nevertheless an outgrowth of our respect for the integrity of local government, and specifically the people’s right and obliga tion to engage in local self-government, that we must take seriously the matter of a public official who has breached the faith with his community th at is required by our cons titution by departing from it. In sum, respondent’s acknowledgement that he moved outside of the 1st division after 2005 effectively acknowle dged both a violation of the law and constitution, and a breach of faith with the people of his comm unity, both of which threaten “public confidence in the . . . in tegrity of the judiciary,” Canon 2(B), and risk “expos[ing] the courts to obloquy, contempt, censure, or reproach.” MCR 9.104(A)(2). Thus, I agree with the JTC that respondent’s vacati on of his electoral district constitutes judicial misconduct and warrants an imposition of sanctions. C. False Testimony In addition to the period after 2005, during which respondent acknowledged moving from, and living outside, the 1st division, the JTC determined, on the basis of telephone logs produced during the master’s hearing, that respondent had, in fact, moved outside of his electoral distri ct in 2000, rather than 2005. Specifica lly, these logs indicated that from 2000 to 20 04, respondent provided his 201 Honey Creek telephone number as his exclusive after-hours

contact for where he could be reached wh en police officers ne eded him to make “probable cause” determinations and i ssue warrants. Because of a medical situation, respondent was not required to be on call from June of 2004 until sometime in 2005 and, thus, he did not provide an after-hours contact number36 during that period. Once respondent re sumed this responsibility in 2005, he briefly provided the telephone number fo r the Belding Road pr operty in the 1st division. However, calls to the Beldin g Road address were forwarded to 201 Honey Creek. 34 From the beginning of 2006 until June of that year, he again provided only his 201 Honey Creek telephone num ber, and from June of 2006 until the beginning of 2007, respondent provided his Beldin g Road telephone number with calls again forwarded to 20 1 Honey Creek. In 2007, respondent resumed providing only his 201 Honey Creek telephone number. From these logs, the JTC concluded that respondent’s consistent listing of 201 Honey Creek as his contact informati on from 2000 to 2008 showed that he, in fact, lived at 201 Honey Creek beginning in 2000 rather than 2005. On that basis, the JTC concluded that respondent’s asser tion that he had not moved outside of his

district before 2005 evidenced a “lack of candor and honesty,” which amounted to “false testimony” regarding his re sidence during this period. Although “this Court will generally defer to the JTC’s recommendations when they are ade quately supported,” In re Haley , 476 Mich at 189, the JTC’s use of these telephone logs is not without its di fficulties. Of partic ular concern is the

34 It appears that respond ent provided his Belding Road telephone number in response to a visit from the State Co urt Administrative Office (SCAO). During this visit, respondent was in formed that he was in viola tion of his responsibility to remain domiciled within the division from which he was elected. It was immediately after this visit that respon dent temporarily changed his after-hours contact information to the Belding Road property, with calls forwarded to his home at 201 Honey Creek.37 examiner’s failure to produ ce these logs in accordance w ith the master’s discovery order. More specifically, th e examiner did not make re spondent aware that he was in possession of, and intended to use, th ese logs until respondent was actually testifying during the master’s hearing. Once the examiner began questioning respondent about these documents, res pondent’s counsel objected that the examiner had not produced these logs and th at the master should not allow them to be used for substantive purposes. Agreei ng with respondent, the master ruled that these documents could only be used to impeach respondent. However, during these hearings, the examiner called Donna Gillson-- an employee of the 63rd district Court and an acquaintance of respondent-- to testify, and, on the basis of her personal knowle dge, she independently established that respondent had provided her with all the numbers contained in the telephone logs. She also testified that the only reas on respondent cha nged his after-hours telephone contact informati on to the Belding Road address in 2006 was because the State Court Administrative Office (S CAO) had threatened to notify the JTC that he was living outside of the 1st division. 35 Ms. Gillson then stated that

35 It is also worth noting that, alth ough respondent now admits that he moved outside of the 1st division after 2005 , it seems likely that he only made this admission based on filing a homestead ex emption form in 2 006 that listed 201 Honey Creek as his primary residence as of 2005, which made it impossible for him to continue denying that this was hi s home once he discovered that the JTC was aware of this filing. More specific ally, when respondent was confronted by SCAO officials in 2006 about li ving outside his district, he initially denied living at 201 Honey Creek. When these official s asserted he was not living inside his district, respondent replied “I am too. ” Shortly thereafter, respondent began38 having his calls directed to the Belding Ro ad property with ca lls forwarded to 201 Honey Creek. He also voted in a county-wide election in 2007 using his Belding Road address. The inference that responde nt originally atte mpted to continue misleading SCAO about where he lived after 2005 is further supported by the fact that on February 1, 2007 Respondent filled out an application to renew his concealed weapon permit and, in that application, also listed the Belding Road property as his actual residence. The majority, rather than viewing this as additional evidence that respondent wa s engaging in “a deliberate attempt to deceive officials about his change of address,” ante at 18 n 30, claims that “the failure to change his addre ss was simply an oversight: respondent did not think to read the form and make any corrections, as he admitted that he did not read the form.” The majority’s w illingness to ignore this “oversight” is especially troubling in view of the fa ct that the form, which res pondent was required to read during his testimony, specifically stated, “I understand that this application is executed under oath and swear or affirm under penalty of law the above answers are true and correct to the best of my knowledge. I understand that intentionally making a false statement on the appl ication is a felony punishable by imprisonment of not more than four years or a fine of not more than $2,500 or both.” Given that respondent’s signature ve rifies that he signed this form “under oath” and subject to “penalty of law,” the majority’s atte mpt to make light of this falsehood simply because “[a]ll he had to do was sign the permit,” id ., is entirely unpersuasive. The majority’s minimization of res pondent’s responsibility for reading a sworn document that he signe d seems inconsistent with Rowady v K Mart Corp , 170 Mich App 54, 60; 428 NW2d 22 (1988), in which then-Judge Weaver joined an opinion stating, “Nor is plaintiff’s fa ilure to read the en tire agreement before signing it relevant. It is well established that a person cannot avoid a written contract on the ground that he did not attend to its terms, did not read it, supposed it was different in its terms, or that he believed it to be a matter of mere form .” (Emphasis added.) This basic proposition has been settled in our caselaw for over a century. See, e.g., Rory v Contin ental Ins Co , 473 Mich 457, 489 n 82; 703 NW2d 23 (2005). For reasons she does not explain, Justice Weaver requires less personal responsibility of an experience d judge to read, understand, and take seriously a legal document to which he sw ears under oath than she requires of all other citizens of this state with re gard to their own written contracts. That respondent provided a false a ddress two years after he allegedly moved to 201 Honey Creek, strongly suggests that respondent would have continued with his “deliberate effort to deceive officials” about his true address. Yet, rather than sanctioning respondent for his conduct, the ma jority repeatedly39 respondent had his calls forwarded from th e Belding Road property to 201 Honey Creek. Significantly, she explained that the reason respondent changed his telephone number back to 201 Honey Creek in 2006 was because his callforwarding made it impossible for him to receive faxes at his home at 201 Honey Creek. This testimony also lends credence to the JTC’s finding that respondent provided false testimony b ecause the examiner asked re spondent if he “ever had [his] calls forwarded from one home addre ss to another[.]” In contrast to Ms. Gillson’s testimony, respondent replie d, “[n]o, not that I know of.” The following day, respondent was agai n called to testify. During this testimony, respondent stated that he had reviewed the logs. The examiner then went through each number cont ained in the logs and resp ondent verified that all the telephone numbers contained therein be longed to him durin g the listed times. Further, after the JTC rendered its decisi on, which was based substantially on the logs, respondent challenged the use of thos e documents in this Court. However, in doing so, respondent made the following statement in his brief: Assuming, arguendo, that the duty logs presented were accurate copies of the ones that were created in the ordinary course of business, it should come as no su rprise that [respondent] listed a phone number at 201 Honey Creek a place where he could be found when not on the bench. As [res pondent] testified, he spent a significant amount of his free tim e renovating two homes on Honey Creek.

makes excuses on his behalf. I look fo rward to the majority being similarly empathetic when criminal and civil appe llants who are not ju dges raise the “all I had to do was sign the permit” defense.40 Thus, although respondent’s challenge to the JTC’s use of the telephone logs is framed in “arguendo” terms, he notably does not contest the validity of these logs,

and indeed admits that it should “come as no surprise” that he listed the 201 Honey Creek number for where he c ould be contacted after hours.

Because Ms. Gillson testified from he r own personal know ledge about the after-hours telephone numbers that re spondent had provi ded, and because respondent later verified all these num bers, respondent can hardly question in good faith the informa tion in the logs that contributed to the JTC’s conclusion that respondent had provided false testimony when claimi ng that he did not move

outside of his district before 2005. Thus, despite the examiner’s failure to properly produce the telephone logs before the hearing, the information contained

in those records nonetheless affords an a ltogether proper basis from which the JTC could conclude that respondent’s testimony was not truthful. Further, as the examiner initially stated, the logs were intended to impeach respondent in regard to his testimony that he had not moved outside the 1st

division before 2005. Al though respondent’s relocati on constituted part of the substantive claim levied against him during the disciplinary proceeding, this same

information is also relevant to ascertaining his credibility and, in service of the latter purpose, suggests strongly that respondent was not being truthful, the primary purpose for which the logs were employed. Accordingly, the JTC41 properly evaluated these documents in de termining that respondent had provided false testimony.

The JTC’s conclusion that respondent moved outside the 1st division before 2005 is further supported by Ms. Gillson’ s testimony that she delivered campaign materials to 201 Honey Cr eek, where respondent was apparently planning his 2002 re-election campaign. 36 Ms. Gillson stated that she had droppe d respondent off at 201 Honey Creek on a number of occasions before 2005, and that she thought it was “fairly well known to everyone where he lives.” 37 Because “one

cannot be domiciled in more than 1 place, one cannot intend to remain for an extended period of time in more than 1 place,” Scheyer’s Estate , 336 Mich at 651- 652, respondent’s actions, especially in light of the information he provided to the district court concerning his exclusive after-hours contact number at 201 Honey Creek from 2000-2004, indicate that for an “extended period of time” (2000- 2004), he intended to remain at 201 Honey Creek. Thus, respondent was

36 Respondent also admitte d that before 2002 he “ intended to live [at 201 Honey Creek]. And, frankly, that’s why I was working on that. I wasn’t working on that to resell it.” A lthough, this statement coul d be viewed as evidencing respondent’s intent to live at 201 Hone y Creek at some later date, such an interpretation is substantially undermined by the “significant” amount of time he spent there from 2000 until 2008. It wo uld be disingenuous for respondent, despite admitting to being present at 201 Honey Creek on so frequent a basis, while simultaneously providing an exclus ive after-hours contact number at that same address during this time, to now cl aim that his intentio n to be domiciled there was directed towa rd some future date.

37 During a 2004 incident in which police were summoned to 201 Honey Creek, the officers observed that respondent’s pet cat was present at the property.42 domiciled outside of the 1s t division before 2005, and his testimony to the contrary was not truthful. Given this evidence, both circumstantial and direct, it is puzzling how the majority, after “having review ed the entire record closely, ” can now assert that it does “not find that respondent lied un der oath,” and that it “agrees with respondent’s counsel that this is not a case of arrogance,” ante at 18, but one of

confusion. 38 Ante at 18. Specifically, the major ity asserts that respondent once

more was “confused and c ould not remember a series of different telephone numbers (until he later refreshed his reco llection), specific dates and times, and

events that occurred near ly 10 years prior to th e date he testified.” Ante at 19-20. By suggesting that respondent was “c onfused” when the ex aminer initially confronted him with the telephone logs, th e majority leaves un answered why this initial confusion had any impact on respondent’s second day of testimony, i.e., the day after he was presented with the telephone logs, especially after respondent

38 To the extent that Justice Weaver believes respondent was “confused” about what the law required of him, i. e., respondent “thought he could live [outside of his] division as long as he was not running for re-election,” ante at 19, this argument is belied by the record. First, there is no statute or caselaw that even hints at such a proposition, and neither Justice Weaver nor respondent has called anything relevant in this regard to the a ttention of this Court. Second, and more importantly, respondent’s prolonged effort s to hide his living arrangement preand post-2005 undermine the credibility of any claim that re spondent genuinely believed he could live outside of his dist rict so long as he was not currently “running” for re-election. If respondent genuinely believed this, there would have been little need to engage in such an extensive effort to avoid having his residency detected



### .43 admitted that he had reviewed those logs by that time and had confirmed that the numbers contained therein belonged to him. Indeed, the majority seems to recognize that respondent was not confused regarding the telephone logs at that point by stating that he was only c onfused “until he later refreshed his

recollection.” Ante at 20. Nor does the majority so much as attempt to explain how Ms. Gillson’s testimony, wh ich directly refutes respondent’s claim that he did not live outside of his division prior to 2005, bears any relation to respondent’s alleged “confusion” concerning pertinen t facts as to the telephone logs. Specifically, the majority overlooks co mpletely Ms. Gillson’s testimony that respondent began forwarding his calls to 201 Honey Creek in the first place as part

of a deliberate effort to avoi d detection by the JTC. Additionally, by stating that “respondent did not try to deny the fact that he was living in the 2nd division at that time because he th ought he could live in that division as long as he was not running for re-election,” ante at 19, the majority implies that respondent was also confused as to whether he could live outside of his district. By suggesting that respondent was “confused” in this regard, the majority misunderstands what is at issue. Respondent’s false te stimony pertains to

his assertions that he did not live outside of the district from which he was elected before 2005 when, in fact, the evidence shows that he did. That is, respondent’s

lack of candor has little to do with what the law did or did not require of him. Perhaps most troubling is the majority’s willingness to overlook respondent’s lack of candor as being due to his allege d “confusion,” when the very44 nature of his judicial resp onsibilities include properly as certaining facts, ensuring accuracy in testimony, and correcting inac curacies that may arise during factfinding proceedings. Signif icantly, respondent had the o pportunity to do exactly that when he appealed to this Court, but, instead, he stated that “it should come as no surprise that [he] listed a telephone number at 201 Honey Creek, a place where

he could be found when not on the bench,” since “he spent a significant amount of his free time” there. Thus, rather than supporting the majority’s assertion that respondent was confused, his own statements to this Court suggest strongly to the contrary that he was not confused. Indeed, it is unbelievable that a judge of respondent’s experience w ould allow any initial confus ion that may have caused

the JTC to conclude that he lied under oath to persist a nd to go uncorrected in his appeal to this Court. Finally, regardle ss of the majority’s claim that respondent was “confused” regarding telephone number s, dates and times, and prior events,

ante at 19-20, Ms. Gillson was not, and the substance of her testimony was clear, powerful, and damaging to respondent’s credibility. Therefore, apparently on the sole grounds of respondent’s alleged “confusion,” and with almost no explan ation of how it reaches its result, the majority summarily concludes that respon dent has neither violated the Michigan Constitution nor provided false testimony under oath. In this process, the majority gives no credence to the fo llowing evidence, and thereb y utters not a hint of disapproval, and avoids any sanction, for behavior that calls into question the fundamental integrity of our judiciary: (a) respondent’s nearly 10 years of45 continuously spending “significant” period s of his after-hours time at 201 Honey Creek; (b) respondent’s admission that befo re 2002 he “intended to live at 201 Honey Creek,” which is why he was “w orking on [the property]”; (c) Ms. Gillson’s unequivocal statement that it is “fairly well known to everyone where [respondent] lived”; (d) the fact that re spondent’s pet cat was living at 201 Honey Creek before 2005, as noted in a police report stemming from a 2004 incident; (e) the telephone logs directing police offi cers to reach respondent at 201 Honey

Creek as his sole after-hours contact before 2005; (f) Ms. Gillson’s testimony verifying the information in the telephone logs that respondent’s sole after-hours

contact before 2005 was 201 Honey Creek; (g) the fact that respondent actually ran his 2002 reelection campaign fro m 201 Honey Creek; (h) Ms. Gillson’s testimony that, shortly after respondent wa s confronted by SCAO and accused of vacating his office by living outside his district, he purposefully misled SCAO regarding his true reside ncy by manipulating his te lephone lines through call forwarding; (i) the teleph one logs that support Ms . Gillson’s testimony that respondent attempted to avoid having his true residence being detected by forwarding his telephone calls; (j) responde nt’s untruthful answer in response to whether these telephone logs were ever forwarded from his home in the 1st division to 201 Honey Creek of “no, not that I know of,” as if he were unaware of how his own telephone calls were being directed; (k) respondent’s initial false statement that “I am too [livin g in the proper district]” in 2006, despite afterwards admitting that he lived outsid e his district as of 2005 and thereafter when he was46 confronted by two SCAO officials who alle ged that he had moved outside of his district; (l) respondent’s false address th at was provided when applying for a gun permit that he stated was true “under oath” and “under penalty of law;” and (m) the master’s finding, after personally ta king respondent’s testimony, that he was “less than truthful” in this testimony, and the JTC’s unanimou s conclusion that respondent was ”lacking in candor” in this same testimony. In sum, because respondent’s testim ony and actions dem onstrate that he was domiciled at 201 Honey Creek befo re 2005, I agree wi th the JTC that respondent was not being truthful wh en giving his sworn testimony. Thus, respondent’s constitutional a nd statutory violations were of longer duration than he admitted-- effectively constituting a “p attern and practice” of misconduct--, which necessarily means, as the JTC conclu ded, that he showed “a lack of candor and honesty,” which amounted to providing “false testimony” before the master. In addition to vacating his electoral distri ct before and after 2005, this lack of candor independently justifie s the imposition of sanctions.

D. Other Misconduct The remaining allegation of judicial misconduct concerns respondent’s inappropriate conduct directed toward fe male court employees. The JTC found that respondent engaged in thr ee distinct acts of misconduct. In the first instance,

he drew female breasts on a note that wa s attached to a court file. The drawing

was made after a female clerk commente d on the revealing dress of a woman who appeared in court. The s econd event concerned the dr awing of a penis on a note47 that was attached to a cour t file. The third instance occurred during a retirement party for an employee at the 2nd divisi on courthouse. While at the party, respondent commented on a university sweatshirt worn by a female clerk employed in the 2nd division. Respondent stated that the wo man had “an awfully small chest” for the college indicated on the sweatshirt, and “s hould have gone to

a smaller school like Alma ,” which would have fit her “small chest better.” Respondent’s counsel acknowledged that respondent’s conduct was “inappropriate,” but contended that it was spontaneous and represented “isolated” incidents from respondent’s 36-year career. I agree with counse l, and believe that respondent’s conduct warrant s, at most, a public cens ure, consistent with the recommendations of the JTC, and th e conclusions of the majority.

VI. BROWN FACTORS

In In re Haley , 476 Mich at 195, this Court stated: When determining the appropriate sanction, this Court seeks not to punish the judge, but to main tain the integrity of the judicial process and protect the citizenry from corruption and abuse. Based on respondent’s conduct, the JT C has recommended that respondent be removed from office, a recommendation to which this Court w ill ordinarily defer if the JTC has “adequately articulat e[d] the bases for its findings and demonstrate[d] there is a reasonable rela tionship between such findings and the recommended discipline.” Brown , 461 Mich at 1292. I believe the JTC’s findings and recommendations are supported by the record, and agree that respondent’s48 misconduct warrants removal from office. This is confirmed by my review of the

Brown factors, see Brown , 461 Mich at 1292-1293, as follows: 39 (1) Misconduct that is part of a pattern or practice is more serious than an isolated instance of misconduct.

The JTC found that th is factor “weighs heavily in favor of a severe sanction,” because respondent had engaged in “a long pattern of dece it” to hide that he was living outside of the 1st divi sion from 2000 to 2008. I am in agreement with this finding. Respondent moved outside his di strict in 2000 and continually changed his driver’s license and voter’s registra tion to other addresses within the 1st division, and engaged in other actions that served no purpose ot her than to prevent detection. Further, during a visit fro m SCAO, respondent was accused of not living within the division from which he was elected. In response, he falsely stated, “I am too.” Respondent th en changed his telephone number on two separate occasions to his Belding Road property, with calls forwarded to 201 Honey Creek, again to prevent his reloca tion outside his electoral district from coming to light. It was only after res pondent was confronted with a homestead exemption form, which clea rly showed that he was living at 201 Honey Creek

39 The JTC stated that “[w]hile [its] c onclusion is based on the totality of the circumstances, [it is] primarily motivat ed by the conduct alleged in Count I [moving outside of the division from whic h he was elected] of the Complaint and by Respondent’s lack of candor a nd honesty with the master and the Commission.” Accordingly, the JTC did no t analyze the misconduct set forth in section V(D) in the context of the Brown factors. Instead, it stated that “standing alone” such conduct would only “merit a public censure.”49 after 2005, that he finally admitted he was living outside of his division after 2005. These actions demonstrate a pattern and pr actice of conduct designed to conceal. I believe that the JTC correctly concluded that this factor weighs in favor of a more

severe sanction. I also conclude that respondent’s inappropriate drawings and comments, which consisted of three inci dents over a 36-year period, cannot be viewed as a part of the same pattern or practice. Therefore, this conduct does not increase the severity of the first Brown factor. (2) Misconduct on the bench is usually more serious than the same misconduct off the bench. The JTC correctly found that respondent’s conduct occurred off the bench, which suggests that a less severe sanction is appropriate. (3) Misconduct that is prejudic ial to the actual administration of justice is more serious than misc onduct that is prejudicial only to the appearance of propriety. The JTC concluded that respondent’s conduc t, which calls into question his title to office before 2008, jeopard ized every judgment that he has imposed from the bench. This is so, it argues, because, without lawful au thority to render judgments, those judgments are at risk of being invalidated. 40 I respectfully

40 Although this argument is not at all frivolous, I believe this Court has generally addressed, and reje cted, a similar argument in People v Russell , 347 Mich 193, 196-197; 79 NW2d 603, 605 (1956): We are not inclined to stop and examine the question of whether such magistrate had authority to hold the offi ce he in fact occupied and to which he had color of authority, but content ourselves with applying the rule that if the magistrate was a de facto50 disagree with this legal conclusi on for the reasons stated in People v Russell , 347 Mich 193, 196-197; 79 NW2d 603, 605 (1956) . I nonetheless agree with the JTC that

this factor militates in favor of a more severe sanction. Although respondent’s decisions may remain valid and binding legal decisions, I do believe that the propriety of these decisions raises legitimate c oncerns. In particular, I believe that the losing parties in thes e decisions-- who above all participants in the legal process must be genuinely persuaded of the legitimac y and integrity of this process-- may understandabl y feel embittered or resentful concerning the

decisions in their own cases. (4) Misconduct that does not implicate the actual administration of justice, or its a ppearance of impropriety, is less serious than misconduct that does. For the reasons set forth in the previous fa ctor, I believe that respondent’s conduct, at least in retrospect, did create an appear ance of impropriety that weighs in favor

of a more severe sanction. Because it view s this factor as largely duplicative of officer his act in this public ma tter cannot be attacked in this proceeding nor his title to the office be here passed upon. Upon the high ground of public policy and to prevent a failure of public justice, we follow the salu tary rule that while one is in public office, exercising the authority thereof under color of law, we cannot, except in a direct proceeding to test his right to the office, pass upon the question here raised, and be sides it would avail defendant nothing because there is no difference between the acts of de facto and de jure officers, so far as the public interests are concerned. The point is ruled adversely to defendant in Gildemeister v Lindsay , 212 Mich 299; 180 NW 633 . . . Even though the law creating a judicial office be declared void the acts of an official thereunder will be upheld as the acts of a de facto officer. [Citation and quotation marks omitted.]51 the considerations set out in the previous factor, the JTC concludes, and I agree, that this factor does not assist significantly in determining an appropriate sanction. (5) Misconduct that occurs spontaneously is less serious than misconduct that is premeditated or deliberated. Although I acknowledge that respondent’s initial false stat ements in response to

the unannounced visit from SCAO officials were made spontaneously, his conduct thereafter, including his contin uing efforts to keep his actual residence prior to 2005 from being discovered, demonstrates th at he engaged in a prolonged effort to mislead SCAO, the master, the JTC, and th is Court about his living arrangements. Therefore, I agree with the JTC’s conclusion that res pondent’s actions to avoid detection were deliberate and ongoing, and warrant the imposition of a more

severe sanction. (6) Misconduct that undermin es the ability of the justice system to discover the truth of what occurred in a legal controversy, or to reach the most just result in such a case, is more serious than misconduct that merely delays such discovery. The JTC concluded that respondent’s lack of authority to hold office impaired the judicial system’s ability reach a just resu lt. I respectfully di sagree with the JTC with regard to this factor and do not believe that resp ondent’s conduct undermined the ability of the jus tice system to discover the trut h in legal disputes coming

before this Court. Indeed , I do not believe his conduc t affected the substantive determination of any case or controversy, assuming, as I do, that respondent continued during the period in controversy to act as a responsible judicial decision maker as his record suggests he has done for the past 36 years. That his conduct52 may have undermined the ability of the public, and the administrative systems of this Court, to identify his misconduct in moving his domicile is a factor that is more appropriately taken into account in the first and fifth factors. (7) Misconduct that involves the une qual application of justice on the basis of such cons iderations as race, color, ethnic background, gender, or religion ar e more serious than breaches of justice that do not disp arage the integrity of th e system on the basis of a class of citizenship. As concluded by the JTC, this factor does not apply to respon dent’s conduct, and thus suggests that a more severe sanction should not be imposed.

VII. SANCTIONS This Court having promulgated the Brown factors, and the JTC having evaluated them in this case, “proper de ference” is now requir ed on our part.

Noecker , 472 Mich at 20 (2005) (Markman, J., concurring). Of foremost significance in determining an appropriat e sanction for respondent’s particular

misconduct are the first and fifth factors. Because respondent engaged in a prolonged and deliberate effort to mislead SCAO, the master, the JTC, and this Court, as described in this opinion, in cluding and especially testifying falsely under oath, I believe the JTC has reasonabl y concluded that res pondent should be

removed from office. Although respondent’s 36 years of h onorable service on the bench, and his excellent reputation, as evidenced both by statements contained within the record and by his reelection in 2008 after the peopl e of his judicial district had been made53 at least partially aware of the circumstan ces of the JTC investigation, constitute substantial factors in respondent’s favor in determining a proportionate sanction, in the final analysis these factors do not , in my judgment, outweigh his serious

misconduct in this case. See also Noecker , supra . As Justice Young offered in his dissent, “some misconduct, such as lying under oath, goes to the very core of the judicial duty[.]” Ante at 8. So too, I believe, does respondent’s conduct in knowingly vacating his district “go to the very core of the representative duty” in our system of self-government. Accordin gly, I agree with Justice Young’s dissent in this regard, as well as with th e JTC’s unanimous recommendation, that respondent be removed from office.

VIII. CONCLUSION Pursuant to the JTC’s unanimous recommendation, I believe that respondent’s misconduct in this case warrant s that he be removed from office. In moving outside of the district from which he was elected, respondent violated the law and constitution, he viol ated the fundamental bond with the people of his district established by our system of re publican self-government, and he testified falsely with regard to these actions. For the reasons set forth in this opinion, I would hold that respondent shou ld now be removed from office.

Stephen J. Markman Maura D. CorriganS T A T E O F M I C H I G A N

SUPREME COURT

In re Honorable ST EVEN R. SERVAAS Judge, 63 rd District Court. No. 137633

Corrigan, J. ( dissenting ). I join Justice Markman’s dissenting opini on in all respects. I also join parts A and B of Justice Young’s dissenting opinion, including the discussion of respondent’s untruthful test imony and the conclusion that removal from office is the appropriate sanction for re spondent’s lying under oath. I write separately only to observe th at respondent advances a far more compelling argument for a due process violation than I have seen in any prior Judicial Tenure Commission (JTC) case. The JTC executive director engaged in unnecessarily harsh tactics when he c onfronted respondent by surprise and attempted to obtain his resignation by 9:00 a.m. the next day. Although the executive director purported to speak for the JTC during his meeting with respondent, the record does not estab lish that the JTC approved all of the

executive director’s tactics. Moreover, an impartial master appointed by this Court conducted a hearing and found the fa cts in this matter, the JTC’s decision is merely a recommendation to this Court, a nd the ultimate disciplinary decision is rendered by this Court after a de novo review. Thus, I conclude that respondent2 has not demonstrated an intolerably high risk of unfairness that is required to establish a due process violation.

In Withrow v Larkin , 421 US 35, 47; 95 S Ct 14 56; 43 L Ed 2d 712 (1975), the United States Supreme Court held that the combination of investigative and adjudicative functions in a single entity do es not necessarily violate due process:

The contention that the combination of investigative and adjudicative functions necessarily cr eates an unconstitutional risk of bias in administrative adjudicati on has a much more difficult burden of persuasion to carry. It must overcome a presumption of honesty and integrity in those serving as adjudicators; and it must convince that, under a realistic appraisal of psychological tendencies and human weakness, conferring inves tigative and adjudicative powers on the same individuals poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented. The Supreme Court explained that it is “very typical for the members of administrative agencies to receive the re sults of investigations, to approve the filing of charges or formal complaints instituting enforcement proceedings, and then to participate in the ensuing hearings. This mode of procedure does not violate the Administrate Procedure Act, and it does not viol ate due process of

law.” Id . at 56. Although the combination of investigative and adjudicative functions does not by itself establish a due process violation, a court may nonetheless determine “from the special facts and circumstances present in the

case before it that the risk of unfairness is intolerably high.” Id . at 58.

In In re Del Rio , 400 Mich 665; 256 NW2d 727 (1977), this Court followed

Withrow in holding that the combination of investig ative, adjudicative, and3 disciplinary roles of the JTC did not render it incapable of ensuring due process. This Court emphasized that the JTC’ s role is limited to submitting its recommendations to this Court, and that this Court alone decides what, if any, disciplinary action should be taken. This Court has made a conscious effort to segregate within the Commission the investigative a nd adjudicative functions. We specifically require under GCR 1963 , 932.10, that an independent master be appointed by this Cour t to preside over the adjudicative process once the Commission files a fo rmal complaint. It is this master who also makes the findings of fact and conclusions of law upon which the Commission make s its recommendation and this Court ultimately bases its decision. Therefore, this Court, like the United States Supreme Court in Withrow , supra , 58, does not believe that the combination of the investigative and adjudicative roles in the Judicial Tenure Commis sion creates even a ri sk that due process guarantees could be violated. [ Id . at 691.]

In In re Chrzanowski , 465 Mich 468, 486-487; 636 NW2d 758 (2001), we

followed Withrow , Del Rio , and other Michigan authori ties to hold that the JTC’s procedures afforded sufficient due proce ss protections, and we found no special facts or circumstances to suggest an intolerably high risk of unfairness: As to the procedures, first, pur suant to MCR 9.207(B)(3), the JTC conducted a preliminary inves tigation to determine whether respondent’s alleged conduct warran ted further action. Second, after determining that suffici ent evidence of miscondu ct existed, the JTC filed a formal complaint pursuant to MCR 9.208. Third, a master was appointed, notice was given, and a hearing was then afforded respondent under MCR 9.210(A) and MCR 9.211, with the JTC’s executive director serving as prosecutor-examiner under MCR 9.201(6). . . . Finally, the JTC’s conclusion that Judge Chrzanowski should be disciplined was ultimately just a recommendation to this Court that we are charged to revi ew de novo pursuant to deciding what discipline, if any, is appropriate. As in Withrow , the JTC’s investigative and adjudicative pro cedures are functionally separate; additionally, as distinct from Withrow , in which the investigation4 and the decision were undertaken by the same Medical Examining Board, here the master, the examiner, and the JTC panel are separate entities. If the board in Withrow did not violate due process rights by investigating, and then adjudi cating claims, it can hardly be argued that the JTC’s procedures vi olated due process. Further, a majority of the members of the JT C are judges, and all the members who ultimately recommend discipline are assumed to be fair and impartial. We conclude then that there was no actual bias in the JTC’s decision. It had authority to review the master’s findings de novo, and reasonably determined , by a preponderance of the evidence, that respondent had in fact made false statements. We find these procedures adequately sepa rated the JTC’s investigative and adjudicative functions. On the basis of these authorities, I do no t find a due process violation in this case. The JTC followed the very same procedures that we concluded in Del Rio

and Chrzanowski were sufficient to ensure due pr ocess. That is, a master was appointed to find the facts that formed the basis for th e JTC’s decision, the JTC’s decision was only a recommendation to this Court, and this Court bears the ultimate responsibility on its de novo review to decide what, if any, discipline is

warranted. Nonetheless, a close question is pres ented regarding whether special facts

and circumstances created an intolerably high risk of unfairness. The JTC’s executive director confronted responde nt without warning in his chambers, accompanied by an armed polic e escort who surreptitiously recorded the meeting. The executive director prov ided respondent with documents alleging misconduct

and indicated that he woul d obtain respondent’s interi m suspension if he did not resign by 9:00 a.m. the next day. Th e executive director also presented a resignation letter that had already been prepared on respondent’s own office5 stationery . The executive director represented that he was speaking on behalf of the JTC, stating: The Commission is offering you th is opportunity to resolve this matter as quickly as possible and not bring any shame, proceedings, accusations of perjur y against you. You can resign immediately. And immediately mean s immediately. I have a letter right here you can sign. The Co mmission has said that I can give you until tomorrow morning. I prefer to take the letter with me right now. When respondent stated that he would lik e to talk to someone “who knows this area much better that [sic] I do,” the executive director responded, “Yeah. So here’s a letter already prepared for you. If I have that letter faxed to me — my fax number is on that card that I just gave to you. If I have that letter faxed to my office by 9 a.m., and I mean by 9 a.m.” Respondent stated that he could not make a decision by then, to which the executive director replied: Then I’ll be filing the petitio n for interim suspension tomorrow and you will be suspended in a matte r of days. And a formal complaint will issu e with this. So, this will all . . . . You’re up for election this year. So, this is all going to become public no later than March. You’ll be off the bench before then.

* * *

You have until tomorrow morning at 9. And I haven’t even touched — I haven’t even touched the sexual harassment — the little notes that you draw, the comments you make to the staff. I mean, we haven’t even gotten . . . . Oh yeah. We haven’t even gotten there.6 * * * You may think that because you were born in 19 whatever it was — forty something or other, that you’re from an old enough generation that can get away with sa ying certain things, but it’s just not true. The executive director later repeat ed that “[i]f the Commission has your letter of resignation by tomo rrow by 9 a.m., this matter will be gone. Nobody will

hear about it. You’ll have a retirement party. Everybody w ill go home happy.” But, the executive director st ated, if respondent fought the allegations, “I almost welcome the opportunity. Or you can take the easy way out and take a resignation.” When respondent asked to see a file re ferred to in one of the alleged sexual drawings that the executive director prov ided, the executive director stated, “I’m not here now to do any type of interview with you. I’m not here to explain anything else.” When res pondent asked what other evidence formed the basis for the allegations, the executive director stated: Sir, I’ve followed the court rules. The rules are provided in 9.200 and following. We’ve complie d with the court rules. I’ve come here to personally to [sic] give you this to perhaps avoid any embarrassing situations. I’ve come here to perhaps avoid having to drag your name through the mud with what is going to come out at a formal hearing and to give you an opportunity to obviate all that and retire quietly. I’m not here to discuss the matter with you. The executive director later stated, “If we push this all the way, everybody’s going to know why you left because you got thrown off the bench.”7 As the above excerpts reflect, the executive director’s tactics were unnecessarily harsh. The executive dire ctor essentially ambushed respondent in his chambers with the allegations, de manded his immediate resignation by 9:00 a.m. the next day, and refused to answ er respondent’s questions regarding the bases for the allegations. The record does not, howe ver, reflect that the JTC itself approved all these tactics. Although the ex ecutive director represented that “the Commission” was giving respondent until 9:00 a. m. the next morning to re sign, the record does not indicate whether the JTC approved the surp rise nature of the confrontation, the refusal to answer respondent’s questions, or the abrasive disregard of respondent’s request for more time to talk to someone. I am extremely concerned about th e grounds for the JTC’s decision to

exclude from the record th e audio recording of th e executive director’s confrontation with respondent, because it gives rise to a possible inference of collaboration. Respo ndent submitted the recording as one of several attachments to his brief in support of hi s objections to the master’s report. The JT C granted the

examiner’s motion to strike the attachments. The JT C chairperson explained the

basis for that decision: The presentation of additional ev idence after the conclusion of a public hearing as [sic] gover ned by MCR 9.218. That rule provides that the Commission may order a hearing with at least 14 days’ notice. That process was not found [sic] in this case. Accordingly, the motion to strike was hereby granted. The court rule cited by the ch airperson, MCR 9.218, provides:8 The commission may order a hearing before itself or the master for the taking of additiona l evidence at any time while the complaint is pending before it. The order must set the time and place of hearing and indicate the ma tters about which evidence is to be taken. A copy of the order must be sent to the respondent at least 14 days before the hearing. Regardless whether the striking of the audio recording was a correct decision under MCR 9.218, I have no real evidentia ry basis to question the

conclusion that the JTC decided the moti on on the basis of its stated rationale

rather than because of any effort to concea l the audio recording. Therefore, I conclude that the execu tive director’s punitive tactics alone do not rise to the level of special facts or circumstances that would create an intolerably high risk of unfairness. The record does not show that the JTC members exhibited any bias or prejudgment, and res pondent has not overcome the presumption of honesty and integrity in those serving as adjudicators. Withrow , supra at 47. Moreover, an impartial master appointed by this Court conducted the hearing and found the relevant fact s, the JTC’s decision was merely a recommendation to this Court, and it is this Court, after the de novo review, that now renders a decision regarding the appropria te discipline, if an y, that should be imposed. Del Rio , supra ; Chrzanowski , supra . Accordingly, despite my serious concer ns regarding the executive director’s behavior during his confrontation with respondent, I am not convinced that respondent has established a viola tion of his due process rights.

Maura D. CorriganS T A T E O F M I C H I G A N

SUPREME COURT

In re Honorable STEVEN R. SERVAAS Judge, 63 rd District Court. No. 137633

Young, J. ( dissenting ). I join in parts V(A) and (C) of Ju stice Markman’s opinion. Like Justice

Markman and the Judicial Tenure Commissi on (JTC), I conclude that respondent lied during the JTC proceedings and that th is misconduct alone provides sufficient basis for removing him from office. 1 I write separately because I decline to address whether the JTC has the authority to determine if re spondent vacated his office in violation of Const 1963, art 6, § 20 during the course of judicial disciplinary proceedings because respondent admitted that he changed his primary

residence from the first to the second election division fro m August 2005 to February 2008. Given respondent’s admi ssion that he moved outside his election

1 I am aware of the behavior exhibite d by the executive director of the Judicial Tenure Commission in January 20 08. However, the propriety of his actions is best addressed by the Attorney Grievance Co mmission, and is not before the Court today. Rather, the sole issue before the Court is whether respondent’s actions constitute judicial misconduct.2 division, 2 I believe that a formal determinatio n of the JTC’s power to decide such a question independent of re spondent’s admission is unnece ssary in this case and do not reach a conclusion in the ques tion debated by Jus tices Markman and

Weaver in their re spective opinions.

A. Respondent lied under oath I fully agree with Justice Markman’s an alysis of the record in parts V(A) and (C) regarding respondent’s untruthful testimony. What is startling is that the majority accepts with out question respondent’s proffe red justification for vacating his office—that respondent “thought he co uld live in [the second election] division as long as he was not running for re-election.” 3 Were this justification true, one would have expected respondent to liv e openly and notoriously at his legal residence, wherever that residence happened to be located within the 63rd District. However, review of the record reveal s quite the opposite—respondent’s actions

2 I believe that respondent’s admission establishes that he violated Const 1963, art 6, § 20. Because the law forbid s abandonment of office while the office holder continues to function in that offi ce, it is sanctionable judicial misconduct for any judge to continue serving in an office that he has vacated. However, in light of my conclusion that respondent lied under oath, and that this misconduct alone warrants his removal, I do not believe it necessary to address the appropriate sanction for either the abandonment of office violation or the sexually inappropriate misconduct that the JTC also concluded respondent committed.

3 Ante at 19. However, respondent asse rted in his brief yet a different justification in his brief, claiming that he was “only required to live within the district in which the court sits” and could “make his principal residence in any division within that district .” (Emphasis in original.)3 during the relevant period were comp letely inconsistent with one who honestly believed that he could freely live outside his election territory. Respondent acknowledged that he move d his legal residenc e out of the 1st election division in 2005. Significantly, respondent acknowledg ed that he knew that he was required by law to change his address afte r he moved. However, respondent never changed the address on his driver’s license to reflect his move to

the second election division. 4 Additionally, despite ac knowledging that he was legally required to do so, respondent never changed his voter registration

information from the fi rst to the second election divi sion. In fact, respondent fraudulently continued to vote as though he still lived in the 1st election division. 5 Moreover, respondent continued to lis t his 1st election division address as his “residential address” on his 2007 ap plication to carry a concealed weapon

4 The law requires a person to “ immediately notify the secretary of state of his or her new residence address,” and the fa ilure to do so is punishable by a civil infraction. MCL 257.315(1), (3) (emphasis added).

5 Voting in a district other than that a ssociated with one’s place of residence is prohibited by law. MCL 168.932a(d). Nevertheless, re spondent claimed that he was entitled to vote in a district where he did not reside becau se he owned a house in the first election divisi on and “paid the taxes.” However, as our constitution provides, and any voting citizen in this st ate well knows, an elector is qualified by meeting the “requirements of local residen ce,” not simply by paying taxes. Const 1963, art 2, § 1. Moreover, “residence” is defined at MCL 168. 11 as the “place at which a person habitually sleeps, keeps his or her personal effects and has a regular place of lodging.” At the time re spondent fraudulently voted in the first election division, respondent testified that his property in the first election division was occupied and leased to a “guy who wants to buy it.” I find that respondent’s continued voting in his former electoral district after admitting that he had changed his legal residence entirely undermines his credibility and defense.4 (CCW). 6 This latter act is particularly eg regious because the CCW application is

an affidavit that states: Read the following st atements and, if you agree, sign below at the time of submission with the clerk. * * * I understand that this appli cation is executed under oath and swear or affirm under penalty of la w that the above answers are true and correct to the best of my knowledge. I understand that intentionally making a false stat ement is a felony punishable by imprisonment for not more than 4 years or a fine of not more than $2500, or both. Consequently, by signing this application w ith the incorrect address of residence, respondent again lied under oath. Despite this, res pondent’s defense is that he did not read the application before signing it. This has never been a valid defense to false swearing on a document requiring an attestation of truthfulness. 7 The majority’s acceptance of respondent’s ex cuse is as shamef ul as respondent’s attempt to minimize the consequence of his dishonesty. We judges demand more of ordinary citizens who appear before us in court. Thus, it is hard to understand

6 In addition to being a falsehood, this act is prohibited by law. MCL 28.425b(3).

7 In fact, the “I didn’t read it” defense is not as a cognizable defense for any written document in Michigan, mu ch less a document requiring an attestation of truthfulness . See Otto Baedeker & Associates, Inc v Hamtramck State Bank , 257 Mich 435; 241 NW 249 (1932); Int’l Transportation Ass’n v Bylenga , 254 Mich 236; 236 NW 771 (1931); Collier v Stebbins , 236 Mich 147; 21 0 NW 264 (1926); Gardner v Johnson , 236 Mich 258, 2 10 NW 295 (1926).5 the “free pass” the majority has given a fellow member of the judiciary who ought

to be held to at least the standard of honesty we require of others. Respondent’s intentional violation of the laws go verning voting, driver’s licenses, and CCW licensing are independ ently troubling, not inadvertent, and form a pattern of intentional misdirection. If respondent truly believed that he was

free to live in the s econd election division, then wh y would he take such great pains to make it appear as though his le gal residence was still in the 1st election

division? I think the answer is clear. Re spondent took pains to conceal his true

residence because he had reason to know that he was not living in the proper election division. After respondent file d a homestead exemp tion for his second election division home in 2005, it be came increasingly impossible for respondent to maintain the lie regarding his legal re sidence being outside his election division. Additionally, the testimony indicated that between 2000 and the end of 2004 respondent provided court staff with a telephone number to his property in

the second election division for the court’s after-hour duty log. 8 However, beginning in January 2005, respondent provided a telephone number to his property in the 1st election division, but the testimony indicated that calls placed

to this number were forwarded to his address in the second election division. Beginning in January 2006, testimony i ndicated that the after-hours telephone

8 The logs, prepared in three-month intervals, pr ovided law en forcement a means of contacting a member of the 63rd District judiciary after regular business hours.6 number was changed to a telephone nu mber in the second election division because respondent “was having problems with his fax machine and he thought that the call forwarding from the other phone was th e problem with the fax machine.” However, in July 2006, respondent again reverted to providing court staff with a 1st election division telephone number that was ag ain forwarded to his telephone in the 2nd election division. While the testimony indicated that respondent provided the telephone numb ers to the court ad ministrator, at the hearing respondent claimed that the tele phone numbers “didn’t come from [him]”

and claimed to be unable to recognize his own telephone number, despite the fact that the telephone number was prov ided to the court administrator a mere eighteen

months before the hearing. 9 When asked if he had ever had calls forwarded from one address to another, respondent evasivel y answered “no, not that I know of.” I reject the ridiculous notion that responde nt could not recognize his own telephone

9 Because of his need to maintain the deception about the place of his legal residence, even small things became proble matic for respondent to admit. He was extraordinarily evasive in his testimony before the JTC. I offer the following example of respondent’s evasive testimony: Q : So it’s July, August, September 2006. A : Right. Q : With a phone number that’s listed there that ends in a 30 that you’ve read. Do you recogn ize that phone number as one of your home phone numbers? A : No. Q : You don’t know what that phone number is? A : I don’t – I mean I’m not sayi ng it isn’t, but I – and I don’t know how it got there, because I didn’t give it to anybody.7 number and did not “know” whether he ha d forwarded telephone calls from one property to the other. More fundamentally, if respondent truly believed that he was free to live legally in th e second election division and maintain his judicial office, there would have been no ne ed to forward his telephone calls at all . Thus, I completely agree with Justice Markman that the record establishes that respondent repeatedly lied under oath. The majority incredulously claims that “respondent did nothing to hide the fact” that respondent resided in his second election division home from 2005; however, th e plain facts contained in the record

indicate otherwise. 10

B. Sanction Having determined that th e record fully supports that respondent lied under oath, I believe that the only appropr iate sanction is removal from office. 11 As I

noted in In re Noecker : 12

10 The majority cites as conclusive ev idence the fact that respondent was listed in the local telephone b ook as proving he “did noth ing to hide the fact” that he resided in the second election divi sion. However, a listi ng in the telephone book merely indicates that respondent had an address and teleph one number in the second election division. A listing in the telephone book does not indicate one’s legal residence. One’s voter registration and driver’s license are indicative of legal residence and, as stated, these indicia do not support responden t or the majority’s position. Let us not forget th at respondent affirmatively attested to the incorrect residence address on his 2007 CCW license application.

11 This Court has generally removed a judge from office when it has been determined, in whole or in part, that a judge has provided false testimony or evidence in JTC proceedings. See In re Ryman , 394 Mich 637, 232 NW2d 178 (1975); In re Loyd , 424 Mich 514; 384 NW2d 9 (1986); In re Ferrara , 458 Mich 350, 372; 582 NW2d 817 (1998) (“Judges, occupying the watchtower of our8 The purpose of Judicial Te nure Commission proceedings is not the punishment of the judge, but to maintain the integrity of the judicial process and to protect the citizenry from corruption and abuse. As such, this Court’s pr imary concern in determining the appropriate sanction is to restor e and maintain the dignity and impartiality of the judiciary and to protect the public.

* * * Our judicial system has long recognized the sanctity and importance of the oath. An oath is a significant act, establishing that the oath taker promises to be trut hful. As the “focal point of the administration of justice,” a judge is entrusted by the public and has the responsibility to seek trut h and justice by evaluating the testimony given under oath. When a judge lies under oath, he or she has failed to internalize one of th e central standards of justice and becomes unfit to sit in judgment of others . . . . [S]ome misconduct, such as lying under oath, goes to th e very core of judicial duty and demonstrates the lack of character of such a person to be entrusted with judicial privilege

. [13] For these reasons, I would adopt the recommendation of the JTC and remove respondent from office.

Robert P. Young, Jr.

system of justice, should preserve, if not uplift, the standard of truth, not trample it underfoot or hide in its shady recesses. This is precisely why judges should be exemplars of respectful, forthright, and appropriate conduct.”); In re Noecker , 472 Mich 1; 691 NW2d 440 (2005); In re Nettles-Nickerson , 481 Mich 321; 750 NW2d 560 (2008). The only ex ception I can discern is In re Thompson , 470 Mich 1347 (2004), where the JTC and respondent reached a plea agreement for a 90-day suspension, and th e complaint included an a llegation that respondent “demonstrated a lack of candor” before the JTC.

12 472 Mich 1, 691 NW2d 440 (2005).

13 Id . at 16-17 (emphasis added).