Michigan Supreme Court Lansing, Michigan

Marilyn Kelly, Chief Justice
Michael F. Cavanag h Elizabeth A. Weave r

Maura D. Corriga n Robert P. Young, Jr. Stephen J. Markma n Diane M. Hathaway, J ustices 

# Order

July 2, 2010

139546 & (8)

In re:
HON. BENJAMIN H. LOGAN, II SC: 139546 Judge, 61 st District Court. JTC: Formal Complaint No. 85

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By order of March 12, 2010, we rema nded this matter to the Commission for further explication. The Commission responded by letter of May 3, 2010. This Court has reviewed the Commission’s letter.

On order of the Court, the Judicial Tenure Commission has issued a Decision and Recommendation, to which the respondent, 61st District Court Judge Benjamin H. Logan, II, consents. It is accompanied by a settlement agreement, in which the respondent waived his rights, stipulated to findings of fact and conclusions of law, and consented to a sanction that would be no greater than a public censure.

In resolving this matter, we are mindf ul of the standards set forth in In re Brown
, 461 Mich 1291, 1292-1293 (2000):

[E]verything else being equal: (1) misconduct that is part of a pattern or practice is more serious than an isolated instance of misconduct;

(2) misconduct on the bench is usua lly more serious than the same misconduct off the bench;
(3) misconduct that is prejudicial to th e actual administration of justice is more serious than misconduct that is prejudicial only to the appearance of propriety;
(4) misconduct that does not implicate the actual administration of justice, or its appearance of impropriety, is le ss serious than misconduct that does;2

(5) misconduct that occurs spontaneou sly is less serious than misconduct that is premeditated or deliberated;
(6) misconduct that undermines the ability of the justice system to discover the truth of what occurred in a legal c ontroversy, or to reach the most just result in such a case, is more serious than misconduct that merely delays such discovery;
(7) misconduct that involves the unequal application of justice on the basis of such considerations as race, colo r, ethnic background, gender, or religion are more serious than breaches of jus tice that do not disp arage the integrity of the system on the basis of a class of citizenship.
In the present case, those standards ar e being applied in the context of the following findings of fact of the Judicial Tenure Commission, which, following our de novo review, we adopt as our own:

1. Respondent is, and was on June 17, 2008, the Chie f Judge of the 61 st District Court in the City of Grand Rapids, Kent County, Michigan.

2. On June 17, 2008, an altercati on took place at the Grand Rapids home of [Kent County Commissioner] Mr. James Vaughn, which involved Mr. Vaughn, Cassandra Mitchell and Ida Cr oss. As a result of the incident, Ms. Cross required medical treatment.
3. That same day, Mr. Vaughn was arrested by offi cers of the Grand Rapids Police Department (GRPD) on a probable cause charge of aggravated domestic assault and take n to the Kent Co unty Correctional Facility (KCCF). He was booked at approximately 9:26 a.m.
4. A few hours later, [Kent County Commissioner] Mr. Paul Mayhue visited Mr. Vaughn at KCCF.
5. Respondent is an elected official in the City of Grand Rapids (Kent County), and James Vaughn is an elected member of the Kent County Board of Commissioners. Paul Mayhue served on that Board with Mr. Vaughn until Mr. Mayhue’s defeat in the August, 2008 primary.
6. Respondent and Mr. Mayhue engage d in a series of telephone calls on June 17, 2008, most of which while Mr. Vaughn was incarcerated. The identity of the callers a nd times are as follows:
(a) Mr. Mayhue to Respondent at approximately 12:22 p.m.;
(b) Respondent to Mr. Mayhue at approximately 1:41 p.m.;3

(c) Respondent to Mr. Mayhue at approximately 1:48 p.m.;
(d) Respondent to Mr. Mayhue at approximately 2:03 p.m.;
(e) Mr. Mayhue to Respondent at approximately 2:08 p.m.;
(f) Respondent to Mr. Mayhue at approximately 9:15 p.m.;
(g) Mr. Mayhue to Respondent at approximately 9:40 p.m.
7. Telephone company records reflect that:

(a) Most of the calls lasted a mi nute or less, and resulted in voice mail messages being left or in no contact at all; and that
(b) The phone call fro m Mr. Mayhue to Respondent at 2:08 p.m. lasted approximately 15 minutes.
8. Respondent was not handling arraignments at the 61 st District Court on June 17, 2008, when a person in M r. Vaughn’s situation could expect to be arraigned.
9. While Mr. Vaughn was incarcerated , Respondent directed his staff to obtain a copy of the initial police repor t, which was obtained by accessing the GRPD’s computer system at the 61 st District Court.
10. At approximately 2:30 p.m., Resp ondent directed that a fax be sent to the KCCF reporting that he had se nt a personal recognizance bond for Mr. Vaughn in the amount of $5,000 with conditions , among others, that he have no contact with either Cassandr a Mitchell or Ida Cross. The fax was sent as directed.
11. Respondent did not contact the GRPD for additional information, but relied on the initial investigation re port in determining to authorize the bond.
12. At 2:50 p.m. Mr. Vaughn was released fro m the KCCF upon agreeing to the terms of the bond set by Respondent.
13. Shortly after Mr. Vaughn’s rele ase on bond, the GRPD telephoned the KCCF to authorize his release pe nding further investigation. The detective in charge of the investig ation was unaware that Mr. Vaughn had been released on bond.
14. Respondent did not dire ct that the GRPD be in formed of the bond he had set for Mr. Vaughn, but it is the practice of the 61 st District Court to fax4

to the Department all sp ecial bond conditions like those which were set by Respondent for Mr. Vaughn , which was done at the same time the KCCF was informed of th e bond. The fax was sent, as is common practice, to the GRPD Warrant Office, not the investigating detective.
15. Mr. Vaughn was subsequently ch arged in July, 2008, with and was convicted in March, 2009, of aggrav ated assault and domestic violence by a jury. Ms. Mitchell was convicted of assault and battery. On April 17, 2009, Mr. Vaughn was sent enced to a term of inca rceration in the Kent County Jail.
We also adopt the Commissi on’s conclusion that these facts demonstrate, by a preponderance of the evidence, that respondent breached the standards of judicial conduct as set forth in the settlement agreement:

16. The conduct described above crea ted the appearance of impropriety, which erodes public confidence in the judiciary, in violation of [the Michigan Code of Judicial Conduct], Canon 2A, and, as such, constitutes:

(a) Misconduct in office as defi ned by the Michigan Constitution 1963, as amended, Article VI, § 30 and MCR 9.205;
(b) Conduct clearly prejudicial to the administration of justice, as defined by the Michigan Cons titution of 1963, as amended, Article VI, § 30 and MCR 9.205;

(c) A failure to establish, ma intain, enforce and personally observe high standards of conduct so that the integrity and independence of the judiciary ma y be preserved, contrary to the [MCJC,] Canon 1;

(d) A failure to conduct himself at all times in a manner which would enhance the public’s conf idence in the integrity and impartiality of the judiciary, contrary to MCJC, Canon 2B; and
(e) Conduct that exposes the cour t to obloquy, contempt, censure, or reproach, contrary to MCR 9.104(A)(2).
After reviewing the recommendation of the Judicial Tenure Commission, the settlement agreement, the standards set forth in Brown , and the above findings of fact and conclusions of law, we accept the recomme ndation of the Commission and ORDER that Honorable Benjamin H. Logan, II be publicly censured. This order stands as our public

censure.5

M ARKMAN , J. ( concurring in part an d dissenting in part ).

I agree that, at a minimum, the discipline imposed by this Court’s order is appropriate. But I would remand to the Ju dicial Tenure Commission (JTC) for further explanation to determine if significantly greater discipline is appropriate.
By letter of May 3, 2010, the Chairperson of the JTC informed this Court that the JTC had not determined whethe r respondent testified falsely because that count was effectively dismissed as a result of the se ttlement agreement, an d that she could not provide this Court with any fu rther information because this would be outside the scope of the stipulated facts provided to the JTC, citing Dana Corp v Employment Security Com’n , 371 Mich 107 (1 963). Although Dana held that stipulated facts are “sacrosanct” and cannot be “alter[ed],” it further held that a court can, of course, “reject any offered stipulation as incomplete . . . .” Id. at 110-111. Here, the offered stipulation is incomplete because it doe s not address whether respondent testified falsely in the course of the JTC investigation, i.e., it does not a ddress the apparent inconsistency between the stipulated fact that responden t received a phone call from a particular individual that lasted approximately 15 minutes and responde nt’s multiple denials of having any such conversations on the date in question. Ther efore, I would direct the JTC to hold an evidentiary hearing, and take any other acti on it deems necessary, to answer sufficiently and completely the questions raised in this st atement. That is, I w ould direct the JTC to determine whether respondent testified fa lsely to the JTC in the course of its investigation, and, if not, how respondent’ s 15-minute phone call can be reconciled with respondent’s multiple denials of having any such conversations on the date in question.
I am also deeply troubled by the message that is being sent by the Court in this and in other recent cases of judicial misconduct. In particular, I believe that the wrong message is being communicated as to this Co urt’s resolve in severely sanctioning false judicial statements. In In re Servaas, 484 Mich 634 (2009), decided last year, this Court, contrary to the recommendation of the J udicial Tenure Commission to remove the respondent judge from office for testifying falsely, imposed only a public censure. In that case, there was substantial evid ence that the judge had moved outside of the district from which he was elected in direct violation of the Michigan Constituti on, and then engaged in a pattern and practice of actions to conc eal this misconduct, including providing false testimony under oath. Moreove r, in the accompanying case of In re Halloran, __ Mich __ (Docket No. 139830, order entered July 2, 2010), the Court imposed only a public censure and a 14-day suspension, despite th e respondent judge’s admission that he dismissed 30 cases in order to avoid the disclosu re of the fact that he had failed to timely adjudicate those cases. In addition, the fact that, in many of these cases, the parties simply continued to litigate as if nothing happened, raises concerns about whether the respondent judge was forthright with the parties about the dismi ssals. As in this case, the Court was unwilling to remand to the JT C for further investigation concerningI, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

_______________________________________ __ Clerk July 2, 2010 p0629 6

respondent’s honesty. Finally, in the inst ant case, the Court imposes only a public censure, despite the fact that re spondent appears to have testified falsely to the JTC.
As the leadership court w ithin our state’s judiciary, we communicate in these cases either that we do not take seriously fals e statements made in the course of a judge’s exercise of duties, or that we believe we la ck the authority to requi re the JTC to address such matters. Either of these propositions is alarming, and very much inconsistent with the leadership traditionally ex ercised by this Court in preserving and maintaining a judiciary of the highest professional and ethi cal standards. Because I strongly disagree with each of these propositions , and because I believe this Court must exercise a more responsible stewardship of the judicial branch , I would direct the JTC to investigate the instant matter further.

C ORRIGAN and Y OUNG , JJ., join the statement of M ARKMAN , J.

W EAVER , J., not participating. I abstain fro m voting on any items dealing with the Judicial Tenure Commission (J TC) and/or the Attorney Grievance Commission (AGC) to avoid any appearance that I could be trying to affect the outcome of the referrals of me to the JTC and AGC by Justices C ORRIGAN , Y OUNG and M ARKMAN

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