________________ _______________ Michigan Supreme Court Lansing, Michigan
Chief Justice: Justices: Clifford W. Taylor Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly 

# Opinion

Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman

FILED JULY 31, 2006 In re Honorable MICHAEL J. HALEY Judge, 86th District Court. No. 127453

BEFORE THE ENTIRE BENCH YOUNG, J. The Judicial Tenure Commission (JTC ) has recommended that this Court publicly censure responden t 86th District Court Judge Michael Haley for accepting in open court football tickets from an attorney appearing before him. Canon 5(C)(4) of the Michig an Code of Judicial Con duct prohibits a judge or family member residing in the judge’s household from accepting “a gift, bequest, favor, or loan from anyone . . . .” This general prohibition is subject to three exceptions. Consistent with the JT C recommendation, we conclude that respondent violated Cano n 5(C)(4), and that the gift at issue did not fit within any of the listed exceptions. In particular, respondent’s acceptan ce of the football tickets was not an instance of “ordinary social hospitality,” an exception found in Canon 5(C)(4)(b). Having decided that res pondent was in viola tion of a specific, controlling judicial canon, we conclude that it is inappropriate to also considerwhether respondent created a general appearance of impr opriety under Canon 2, as urged by the examiner. The JTC concluded, after applying the Brown factors, 1 that respondent’s misconduct significantly harmed the public’s perception of the ju diciary and that this ethical lapse warranted a public censure . We agree. Acco rdingly, we adopt the recommendation of the JTC that respondent be publicly censured.
I. Facts and Procedural History Respondent Judge Mich ael Haley is a member of the 86th District Court in Traverse City, Michigan. On October 14, 2003, he presided over a plea proceeding in a criminal cas e involving a defendant who allegedly lost control of her vehicle and destroye d a florist’s sign. Th e prosecutor reached a plea agreement with the defendant whereby she would plead gu ilty of usin g a vehicle with improper license plates and pay restitu tion. The defendant and the prosecutor disagreed about the approp riate amount of restitution. Respondent accepted the guilty plea an d stated that the court would sentence the defendant at a future date . The defendant’s attorney, Richard Benedict, a retired district judge wh o had resumed private practice, then approached the bench. Be nedict placed two University of Michigan football tickets on the bench, at which time Bene dict and respondent engaged in the following colloquy:

1 In re Brown , 461 Mich 1291, 1292-1293 (2000).

2Mr Benedict : You got to promise to go. The Court : It’s a week from Saturday? Mr Benedict : No, Saturday. The Court : This Saturday. Hmm, I could go. Mr Benedict : Promise. The Court : I promise to go? I’ve got to make a phone call. Today’s Tuesday, where are you tomorrow? Mr Benedict : The office. No, I’m in Kalkaska. If you want it, take it. The Court : Okay. If there’s anybody else that— Mr Benedict : When you said you w ere interested, I indicated that I still have to ask another. If you can’t go, somebody’s got to go. The Court : I’ll make sure somebody goes and that you get paid. Mr Benedict : I don’t need to get paid. The Court : Okay. All right. Mr Benedict : I need to make sure there’s [sic] two people sitting in the seats. Respondent accepted the tickets. He then reconsidered his earlier decision to postpone sentencing, and sentenced th e defendant to a $100 fine, $250 in court costs, a $40 state fee, an undetermined amount of restitution, and six months of probation. He later determined restitu tion to be $4,116.35 , which was the full amount sought by the vic tim and the prosecutor.

3Officer Terry Skurnit was the court o fficer present in the courtroom at the time of the plea proceeding, and he watched respondent accept the tickets. Officer Skurnit told a supervisor ab out the incident, who inform ed the prosecutor, who in turn told respondent about Skurnit’s comp laint. On Octob er 31, 2003, respondent wrote a letter to Skurnit’s superior, Sheriff Terry Johnson, notif ying Johnson that respondent had banned Skurnit from responde nt’s courtroom. Skurnit then filed a request for investigation with the JTC. After conducting a preliminary inves tigation, on Nove mber 18, 2004, the JTC filed a two-count comp laint against respondent. Count one alleged that respondent engaged in impropriety or created an appearance of impropriety by accepting the football tickets. Count two alleged that respondent misrepresented facts to the JTC and demonstrated a lack of candor in the course of the investigation. On January 5, 2005, this Court appointe d as master the Honorable Casper O. Grathwohl to p reside over the hearing. After hearing the matter, the master submitted a written report recommending no discipline on either count. The ma ster conceded that respondent’s acceptance of the football ticke ts was “inappropriate” and “displayed poor judgment.” However, he concluded that the ex aminer had not proven by a preponderance of the evidence that respondent engage d in misconduct. The examiner filed an objection to the master’s report, challenging the master’s

4conclusions of law regarding count one. 2 The JTC scheduled a public hearing for July 11, 2005. Following the public heari ng, the JTC issued a wr itten opinion rejecting the master’s conclusions of law 3 and recommending that this Court publicly censure respondent. 4 It concluded that respondent’s acceptance of the football tickets constituted: (1) Misconduct in office, as defined by the Michigan Constitution of 1963, as amended, Article 6, Section 30 and MCR 9.205; (2) Conduct clearly prejudicia l to the administration of justice, as defined by the Mich igan Constitution of 1963, as amended, Article 6, Sec tion 30, and MCR 9.205; (3) 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 Code of Judicial Conduct, Canon 1; (4) Irresponsible or improper conduct that erodes public confidence in the judiciary, in vi olation of the Co de of Judicial Conduct, Canon 2A; (5) Conduct involving impr opriety and the appearance of impropriety, in violation of the Code of Judicial Conduct, 2A;

2 The examiner did not challenge the master’s conclusion regarding count two, and dismissed that count. Accord ingly, count two is no longer at issue in this case.
3 The JTC criticized the master’s le gal conclusions for lacking any explanation or legal support.

4 Two members of the nine-member JTC panel dissented in part from the recommendation. Although they concurred with the public cen sure, they also urged this Court to suspend res pondent without pay for 30 days.

5(6) Failure to conduct oneself at all times in a manner that would enhance the public’s c onfidence in the integrity and impartiality of the judiciary, contrary to the Code of Judicial Conduct, Canon 2B; (7) Improper acceptance of a gift from a donor whose interests have come or are likely to come before you, contrary to Canon 5C(4)(c); (8) Conduct that exposes the lega l profession or the courts to obloquy, contempt, censure, or reproach, in violation of MCR 9.104(A)(2); and (9) Conduct that is contrary to justice, ethics, honesty or good morals, in violati on of MCR 9.104(A)(3). The JTC rejected respond ent’s contention that he had not engaged in misconduct because his actions fell within two of the three exceptions to the general prohibition of accepting gifts in Canon 5(C)(4). The JTC analyzed both exceptions and concluded that the tickets did not constitute “ordinary social hospitality” and that the gift was not offered by a disinterested party. Having found that respond ent engaged in misconduct, the JTC considered the appropriate sanction under the Brown factors. 5 It considered five factors

5 In re Brown , supra at 1292-1293. In Brown this Court articulated standards for judicial discipline so th at the JTC could “undertake a reasonable effort . . . to ensure a consistent rule of law” when dispensing discipline, thereby protecting the judge’s due process rights. Id . at 1295. Thus, the Brown decision sought to ensure that disc iplinary sanctions were both pr oportionate to the ethical infraction and reasonably consistent with sanctions given for similar judicial misconduct. The standards announced in Brown are: (continued...)

6___________________ ______________ relevant to this disciplinary matter. First, the accepta nce of the tickets was an isolated instance rather than part of a pattern or practi ce of misconduct. Second, the misconduct took place on the bench ra ther than off the be nch. Third, the misconduct was not prejudicial to the actual administration of justice, because respondent ordered the exact amount of restitution that had been sought by the prosecutor. Thus, there was no judicial act that appeared to favor Be nedict’s

(...continued) (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 usually more serious than the same misconduct off the bench; (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 impropriety; (4) misconduct that does not implicate the actual administration of justice, or its appearance of impropriety, is less serious than misconduct that does; (5) misconduct that occurs spontan eously 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 controversy, 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 cons iderations as race, color, ethnic background, gender, or religion a re more serious th an breaches of justice that do not disp arage the integrity of th e system on the basis of a class of citizenship. [ Id. at 1292-1293.]

7client. Fourth, the acceptance of the football tickets, by itself, created an appearance of impropriety. Fifth, the misconduct was not spontaneous, because respondent and Bene dict had discussed the gift in the prior week. Because the misconduct took place while respondent was on the bench, it created an appearance of impropriety and was not spontaneous, th e JTC believed that the conduct in question warranted some form of a sanction. In addition to balancing the relevant Brown factors, in its effort to determine a proportionate sanction, the JT C considered similar disciplinary actions both from this state and from other jurisdic tions. It found that disciplinary actions in Michigan provid ed “little guidance” because of their factual dissimilarity. 6 Therefore, it turned to similar cases from other ju risdictions where the judge improperly accepted sports tickets and received a public reprimand. 7 In light of these considerations, the JTC recommended that this Court publicly censure respondent in order to restore public confid ence in the integrity of the judiciary.

6 See e.g., In re Lawrence , 417 Mich 248; 335 NW2d 456 (1983) (the respondent censured, suspended, and orde red to return funds for, among other things, accepting free representati on from an attorn ey in exchange for assigning that attorney indigent criminal cases and improperl y retaining campaign funds); In re Jenkins , 437 Mich 15; 465 NW2d 317 (19 91) (the respondent was removed from office for accepting gift s from litigants appearing before him, soliciting and accepting bribes, communicating ex parte with litigants, soliciting perjury from an individual, and intentionally misrep resenting information on an insurance application).

7 See Office of Disciplinary Counsel v Lisotto , 94 Ohio St 3d 213; 761 NE2d 1037 (2002); Inquiry Concerning a Judge, 756 So 2d 76 (Fla, 2000); In re Daghir , 657 A2d 1032 (Pa Ct of Judicial Discipline, 1995).

8II. Standard of Review The Michigan Constitution au thorizes this Court to discipline judges upon recommendation by the JTC. 8 This Court reviews the JTC’s factual findings and disciplinary recommenda tions de novo. 9 Findings of misconduct must be supported by a prepond erance of the evidence. 10 Although we review the JTC’s recommendations de novo, this Court generally will d efer to the JTC’s recommendations when they are adequately supported. 11
III. Analysis

a. Respondent’s actions violated Canon 5(C) of the Code of Judicial Conduct Respondent challenges the JT C’s conclusion that he engaged in misconduct and the JTC’s recommendation that he receive a public censure. 12 Canon 5 of the Michigan Code of Judicial Cond uct regulates a judge’s extrajudicial activities to “Minimize the Risk of Conflict With Judicial Duties.” It specifically addresses a judge’s avoca tional pursuits, civic and charitable

8 Const 1963, art 6, § 30(2).

9 In re Noecker , 472 Mich 1, 8; 691 NW2d 440 (2005).

10 Id

. 11 In re Brown, supra at 1293.

12 Respondent argues, additionally, that the JTC violates respondent’s due process rights by mixing pr osecutorial and judicial func tions. We have considered and rejected this argument and regard th e question as settled. We decline to address this claim. See In re Chrzanowski , 465 Mich 468, 485; 636 NW2d 758 (2001).

9involvement, financial activities, fiduciary responsibilities, arbit ration, practice of law, and extrajudicial appointments. Of interest to this case is Canon 5(C), which lists financial activities from which a judge should either abst ain or carefully limit his participation. For purposes of this case, we turn our attention to Canon 5(C)(4), which declares that “[n]either a judge nor a family me mber residing in the judge’s household should accept a gift, bequest, favor or loan from anyone . . . .” Notwithstanding its clear prohibition against accepting gifts, Canon 5(C)(4) permits a judge to do so in carefully defined situations set forth in three provisions of the canons. A judge may accept a gift or gifts not to exceed a total value of $100, inci dent to a public testimonial; books supplied by pub lishers on a complimentary basis for official use; or an invitation to the judge and spouse to attend a bar-related function or activity devot ed to the improvement of the law, the legal system, or th e administration of justice. [13] A judge or a family member residing in the judge’s household may also accept ordinary social hospitality ; a gift, bequest, favor, or loan from a relative; a wedding or engageme nt gift; a loan from a lending institution in its regular course of business on the same terms generally available to persons who are not judges; or a scholarship or fellowship awarded on the same t erms applied to other applicants. [14] Finally, a judge or a member of the judge’s household may accept any other gift, bequest, favor, or loan only if the donor is not a party or other person whose interests have come or are likely to come

13 Code of Judicial Co nduct, Canon 5(C)(4)(a).

14 Code of Judicial Conduct, Ca non 5(C)(4)(b) (emphasis added).

10before the judge , and, if its value exceeds $100, the judge reports it in the same manner as compensation is reported in Canon 6C. [15] We agree with the JTC that respond ent violated Canon 5(C) by accepting football tickets from Benedict in open court. Two of the aforementioned provisions clearly do not apply in this case. The fi rst, Canon 5(C)(4)(a), permits specific types of gifts valued under $100, such as gifts associat ed with public testimonials, complimentary books provided by pub lishers for official use, or bar

related functions and activities devoted to the improvement of the law, the legal system, or the administration of justice. The football tickets do not fit into any of these narrow categories, so this first ex ception is inapposite. Second, Canon 5(C)(4)(c) permits gifts from a donor that “is not a party or other person whose interests have come or are likely to co me before the judge . . . .” The record established that Benedict routinely appeared before respondent representing his clients and was actually appearing before respondent when he offered the gift. Canon 5(C)(4)(c) also does no t fit the present case. The remaining provision, Canon 5(C)(4)(b), perm its the judge to accept “ordinary social hospitality .” The focus of our an alysis, then, is whether respondent’s acceptance of th e football tickets was a permissible instance of “ordinary social hospitality.”

15 Code of Judicial Conduct, Canon 5(C)(4)(c) (emphasis added).

11In deciding this issue, the JTC imported a multi-fact or test from Illinois, In re Corboy , 124 Ill 2d 29, 42-43; 528 NE2d 694 (1988), to analyze whether respondent received the gift as ordinary social hospitality. 16 The Corboy test is an attempt to add objectiv ity to an inquiry that is oth erwise quite fact-intensive. It considers (1) the monetary va lue of the gift, (2) the rela tionship, if any, between the judge and the donor, (3) social practices and customs associated with gifts, and (4) the particular circumsta nces surrounding the gift. The canons do not define the phras e “ordinary social hospitality.” However, one of our guiding principles in matters of judicial discipline is that we must measure respondent’s conduct objectively. 17 That is, when determining whether the acceptance of a particular gift is consistent with “ordinary social hospitality” we view the conduct through an objective lens. Whether the donor or the judge intended the gift to be ordinary social hospitality is irrelevant. Rather, we must inquire how the reasonable observer would view the gift.

16 In addition to referencing the Illinoi s test, the JTC briefly mentioned California’s definition of “social hospita lity” as a gift that no reasonable person would believe that (1) the donor intended to or would receive any advantage, or (2) the donee would believe that the dono r intended to obtai n any advantage. Adams v Comm on Judi cial Performance , 10 Cal 4th 866, 880; 897 P2d 544 (1995). Because we resolve this case without relying on either Illinois or California’s respective definitions of “ordinary social hospitality,” we take no position on the propriety of thes e definitions to the extent they do not conflict with our reasoning in this opinion.

17 In matters of judicial discipline, we have repeatedly used an objective approach. See In re Ferrara , 458 Mich 350, 362; 582 NW2d 817 (1998).

12We note that the Corboy test straightforwardly states some commonsense principles that help to assess whether th e acceptance of a gift is an instance of “ordinary social ho spitality.” A reasonable observ er would likely look to the value of the gift, the type of relationshi p between the donor and the recipient, the social practices associated with gifts of like kind, an d the particular circumstances surrounding the particul ar gift-giving instance. To that extent, the Corboy test is not offensive to the plain meaning of the phrase “ord inary social hospitality.” However, we need not engage in the intricate balancing of the Corboy factors to resolve this case. Given our objective focus, we can conclude, simply from the plain meaning of the phrase “ordinary social hospitality,” that social hospitality requires a social context. Here, the cont ext of respondent’s acceptance of the football tickets was not social, but rather a judicial, context. The singularizing fact of this case is that respondent accepted a g ift in open court in the course of executing his judicial duties . That the gift of tickets might well be deemed “ordinary” in oth er contexts does not make its acceptance in a nonsocial setting consonant with the canon. It woul d not have mattered, for example, that Benedict and respondent ha d a longstanding traditi on of giving and receiving football tickets. The fact that the gift was offered in open co urt by a litigant in a pending case excludes the possibility that the event can objectively be characterized as “ social hospitality.” We do not belie ve that a reasonable observer would conclude that “ordinary social hospitality” fairly describe s an exchange of gifts in open court between a litigant in an immediately pending case and a judge

13in that same case. 18 We believe these facts are di spositive of this case and that they are not balanced or alleviated by any other factors. 19
In addition to violatin g the explicit prohibition of Canon 5(C) against receiving gifts, the examiner also urges this Court to find that respondent created an “appearance of impropriety” in violation of Canon 2. 20 We decline to create an independent “appearance of impropriety” sta ndard to judge respondent’s behavior when there is an express, c ontrolling judicial canon. A majority of this Court has recently agreed that [t]he “appearance of impropriety” st andard is relevant not where there are specific court rules or canons that pertain to a subject . . . but where there are no specific court rules or canons that pertain to a subject and that delineate what is permitted and prohi bited judicial conduct. Otherwise, such specific rules a nd canons would be of

18 We disagree with the assertion by th e concurring justices that whether a gift is social hospitality does not depe nd on where the gift was made. Clearly, the context in which the gift is given and accepted bears si gnificantly on whether the gift is “ordinary” and “social.” To conc lude that respondent did not violate Canon 5(C), a canon that specifica lly addresses the prohibition against gifts, but did violate Canon 2, would put the Code of Judi cial Conduct at odds with itself. As we discuss later in this opinion , this conclusion is untenable.

19 We do not mean to disapprove of a ll gifts given to a judge by practicing attorneys or of all gifts accep ted by the judge in his or her official capacity. For example, the gift here was not merely a sym bolic gift that might be provided to a judge, for example, during a ceremonial o ccasion such as an investiture. See Canon 5(C)(4)(a). We do not and cannot, in this decision, delineate between “ordinary social hospita lity” and improper acceptance of a gift in every circumstance. However, as a basic prop osition, members of the judiciary may not accept personal gifts in ope n court and believe that they merely are accepting “ordinary social hospitality.”

20 Code of Judicial Conduct, Cano n 2(A) (“A judge must avoid all impropriety and appearance of impropriety.”).

14little consequence if they could al ways be countermanded by the vagaries of an “appearance of impropriety” standard. [21] We reaffirm and apply that reasoning in this case. The more general “appearance of impropriety” standard does not govern when the specific prohibition in Canon 5(C) controls. Otherwise, the “app earance of impropriety” standard would undermine, and potentially countermand, the remaining canons’ authority to proscribe and prescribe speci fic judicial conduct. We reserve application of the “appearance of impropriety” standard to conduct by a judg e that is neither permitted nor forbidden by a specific cano n. We decline to allow general allegations of impropriety that might overl ap specifically author ized or prohibited behavior and conduct to sup ersede canons that specifically apply to the conduct in question. Accordingly, we find respondent engaged in misconduct by accepting a gift in contravention of Canon 5(C) and is thus subject to sanctions under the Michigan Constitution 22 and our court rules that implement the Constitution. 23
b. The JTC’s Recommendation of Pub lic Censure is Proportional The JTC recommended that respondent be publicly censured. Respondent contends that public censure is dispropo rtionate because he did not engage in intentional conduct, intentional retalia tion, crimes of violence, or physical

21 Adair v Michigan , 474 Mich 1027, 1039 (state ment of Taylor, C.J., and Markman, J.), 1051 (statement of Corriga n, J.), 1053 (statement of Young, J.) (2006).

22 Const 1963, art 6, § 30.

23 MCR 9.205(B)(2).

15misconduct. Respondent asserts that th is Court has imposed public censure only in such instances. We disa gree with respondent’s position. When determining the appropriate sancti on, this Court seeks not to punish the judge, but to ma intain the integrity of the judicial process and protect the citizenry from corruption and abuse. 24 With that goal in mind, we agree with the JTC that public censure is a proportio nate measure of discipline. Our consideration of the pertinent Brown factors confirms our decision. The most applicable Brown factor cautions that misconduct on the bench is usually more serious than the same misconduct off th e bench. By accepting football tickets while on the bench, respondent failed to uphold a specific canon in the Code of Judicial Conduct. He jeopardized pub lic confidence in the integrity and impartiality of the judiciary. While respondent was clearly no t accepting a bribe, his actions were an inappropriate lapse of ethical judgment, and his casual acceptance of the football tickets reflected poorly on the court—an institution that the people of this state must be able to hold in the highest regard. 25 Respondent exposed the court to unfavorab le public scrutiny. Indeed, this is the type of errant behavior that the drafters of Canon 5(C) specifically intended to avoid by generally prohibiting judges from accepting gifts. For th e sake of protecting the

24 In re Ferrara , supra at 372.

25 We agree with Justice Cavanagh that respondent ha s an “exemplary record and a long history of distinguished service.” Post at 2.

16public’s confidence in the impartiality of the judiciary, we believe that public censure is an appropriate sanction in this matter and reinforces a basic standard of acceptable conduct for memb ers of the judiciary.
IV. Response to Justices Kelly and Cavanagh Justices Kelly and Cavana gh conclude that respondent’s acceptance of the football tickets was, in fact, an instance of “ordinary social ho spitality” within the meaning of Canon 5(C)(4)(b ), but that it created an appearance of impropriety under Canon 2. In other wo rds, although they believe that res pondent’s conduct is specifically permitted under Canon 5(C)(4)(b), they conclude that respondent nevertheless should be sanc tioned. However, if we agreed with Justices Kelly and Cavanagh that responde nt’s acceptance of the foot ball tickets in open court was nothing more than an instance of “ordinary soci al hospitality” (which, of course, we do not) and, thus, specifically permitted under Ca non 5(C)(4)(b), we would be compelled to hold that responde nt should not be sanctioned. Conduct that is permitted by the canons si mply cannot create an “appearance of impropriety.” As observed by Chief Ju stice Taylor and Justice Markman in Adair , it would be an ethical “snare” for judges if they could be sanctioned for actions that are permitted under the canons. We si mply cannot tell judg es that they are allowed to accept “ordinary social hos pitality” and then sanction them for accepting the same. As with all other c itizens, judges are entitl ed to be governed by the rule of law rather th an by standardless and amor phous decision-making, in which even compliance with written law is insufficient to ensure that a judge will

17not be found to be in violation of such law. If Justices Kelly and Cavanagh believe that Canon 5 is inad equate, they are free to seek its modification; however, they are not free to invoke an “appearance of impropriety” for conduct that they believe is permitted under Canon 5, but of which they personally disapprove. Further, our determination to rely on specific judicial canons where applicable, rather than a general and le ss determinate “appearance of impropriety” standard, employs a principle of construction similar to that used in Cain v Dep’t of Corrections 26 and is consistent with estab lished principles of statutory interpretation.
In Cain , this Court held that a trial ju dge could not be disqualified under MCR 2.003(B)(1) where there wa s no showing of “actual bias.” This Court looked primarily to that court rule, which sp ecifically governs disqualification matters, and only when it fo und there was no violation of the disqualification rules did it then turn to the more amorphous due process disqua lification test found in Crampton v Dep’t of State

. 27 Also, it is a settled rule of statut ory construction that where a statute contains a specific statutor y provision and a related, but more general, provision, the specific one controls. 28 We have used principles of statutory construction to

26 451 Mich 470; 548 NW2d 210 (1996).

27 395 Mich 347; 235 NW2d 352 (1975).

28 Gebhardt v O’Rourke , 444 Mich 535, 542-543; 510 NW2d 900 (1994).

18construe our court rules, 29 and we see no reason not to ap ply principles of statutory construction to the Code of Judicial Conduct to give effect to its terms. 30 Therefore, since respondent viol ated the specific provision in Canon 5(C), there is simply no reason to apply the more general “appearance of impropriety” standard in this case. Although our concurring colleagues’ unfounded ha nd-wringing suggests otherwise, we are not diminishing, trivia lizing, or undermining the potency of the “appearance of impropriety” standard by assigning it its prop er role within the

29 See, e.g ., In re KH , 469 Mich 621, 628; 677 NW2d 800 (2004).

30 Although Justice Kelly accu ses the majority of upsetting past practice with this decision, it is Justices Kelly and Cavanagh who seek to interject a remarkable principle of textual interpret ation that exposes a judge to ethical violations where the judge has complied with a specific prov ision in the canons. Indeed, in not one of the cases of judi cial discipline cited by Justice Kelly, post at 14 , did this Court find the judge in viola tion of Canon 2 but not in violation of a more specific court rule or canon. We are unable to understand why Justi ce Kelly takes us to task for failing to “double count” for any purpose in this case a presumed violation of the “appearance of impropriety” standard in Ca non 2. Justice Kelly fails to appreciate why, when there is an actual impropriety created by a violation of a specific canon, there can be no mere appearance of impropriety for the same conduct. An appearance of impropriety vi olation is subsumed by a frank violation of another canon. When there is a violation, there is no mere appearance of one. This is a concept that obviously eludes our colleagues. Justice Kelly’s discussion of In re Ellender , 889 So 2d 225 (La, 2004), misapprehends today’s holding that, if a judge’s action was controlled and either permitted or proscribed by a specific judicial canon, we wo uld not separately analyze whether that act created an app earance of impropriety. It is unclear why the Louisiana decision cited by Justice Kelly is a critique of our construction of the canons.

19Code of Judicial Conduct. We are not giving license to members of Michigan’s judiciary to exercise their duties unethica lly. Indeed, where no canon applies that specifically allows or prohibits particul ar judicial conduct, the “appearance of impropriety” standard is appropriate and we certai nly would undertake that analysis. But as we have clearly sh own, such is not the case here, where respondent failed to observe the prohibition in Canon 5(C) against accepting gifts. Justice Cavanagh criticizes the major ity because our decision today is consistent with Adair , in which two members of the majority responded to motions for disqualification an d explained their views in this regard. Had the two justices not responded to those motions, doubtless Justice Cavanagh would have been the first to declaim th eir failure to do so. Now, w ith the two justices having explained at length their perspectives on the relationship be tween the “appearance of impropriety” and specific Michigan court rules, it is apparently Justice Cavanagh’s view that the Court should not apply these same p erspectives to the conduct of other judges ev en though a major ity of justices agree with their construction. Just as we differ with Justice Cavanagh in our conclusion that the rule of law requires that judges, like all other citiz ens, should be perm itted to rely on the written law in conforming th eir conduct without those written laws being trumped by the general and less determinate “appearance of impropriety” standard, we also differ with Justice Cavanagh in our conclusion that the rule of law requires the
consistent application of controlling le gal principles. We apply the Adair standard

20to Judge Haley because we conclude that it is the correct stand ard and, as such, it must be applied consistently to similarly situated members of the judiciary. We believe that the “public’s trust” in the judicial ethics process is far more likely to be enhanced where there is a cons istent rule of la w, rather than where matters are left to our concurring coll eagues’ evolving sense of conscience.
V. Response to Justice Weaver Rather than engage the members of this Court on the legal issues relevant to this case, Justice Weaver has abandoned an y pretense of persua sion or an appeal to reason and delivered herself of an unw arranted and intentiona lly vile personal diatribe whose sole purpose is to denounce and injure her colleagues in the majority. Her opinion here is a prol ogue to the more venomous allegations Justice Weaver makes in Grievance Administrator v Fieger. 31 As we have responded to such allegations in Grievance Administrator v Fieger , we decline to dignify Justice Weaver’s splenetic opinion here by responding further to it.
VI. Conclusion For the reasons stated above, we adopt the JTC’s conclusion that respondent violated Canon 5(C) of th e Code of Judicial Conduct and its recommendation that public censure is appr opriate discipline. We consider the question whether respondent created an appearance of impr opriety by his actions on the bench to be unnecessary where a sp ecific canon addresses his conduct and

31 476 Mich __; __ NW2d __ (Docket No . 127547, decided July 31, 2006).

21such canon has been violated. We hereby order respondent to be publicly censured, with an order to that effect to be issued immediately. Robert P. Young, Jr. Clifford W. Taylor Maura D. Corrigan Stephen J. Markman

22S T A T E O F M I C H I G A N SUPREME COURT

In re Honorable MICHAEL J. HALEY No. 127453 Judge, 86th District Court.

CAVANAGH, J. ( concurring ). I concur in the result reached by Justi ce Kelly in her concurring opinion, namely, that the tickets qualify as ordi nary social hospita lity but that Judge Haley’s acceptance of the tickets in open court gave rise to an appearance of impropriety. 1 Further, even though Judge Ha ley exercised poor judgment on this

1 The majority’s avoidance of the appearance of impropriety standard and Canon 2 can easily be explained. The ma jority uses this cas e as a vehicle to effectuate its own view on ho w Canon 2 is to be interpret ed. It is readily apparent from today’s decision that the majority does not fully embrace the appearance of impropriety standard. Indeed, it is b ecoming increasingly clear that the majority does not believe that the appearance of impropriety standard deserves any meaningful considera tion because the majo rity will simply discover and rely on a more “specific” court rule or canon in a given case, as is ev ident from this case and the individual disqualification statements filed in Adair v Michigan , 474 Mich 1027 (2006). Having been th e target of multiple motions for disqualification, it is understandable that the current majority prefers this approach and characterizes such accusations as “vague, subjective, and increasingly politically directed.” Adair , supra at 1039 (statement by Taylor, C.J., and Mark man, J.). Without question, the majority is entitled to its own view. But I am disappointed that the majority uses this case to transform its own view on the appearance of impropriety standard into new law. Simply stated, this case is not the proper vehicl e by which to make this change, and the majority’s analysis will virtually elim inate Canon 2. This Cour t is currently engaged in a discussion about the proper pr ocedure for judicial disqua lifications, as well as the ethical standards implicated in such a procedure. Further, this Court will soon (continued...)___________________ ______________ occasion, he has an exemplary record and a long history of dis tinguished service. Accordingly, I would have preferred th e Judicial Tenure Commission to have resolved this matter withou t the issuance of a comp laint. But under these particular circumstances, and in light of Const 1963, art 6, § 30 and MCR 9.205, public censure appears to be an appropriate discipline. Michael F. Cavanagh

(...continued) be asking for public comment and input to further this discussion in a more open manner. Accordingly, the majority’s timing in this case could not be worse. If the majority has already made up its mind on the weight afforded to the appearance of impropriety standard, then I fear today’s decision has the potential to undermine this entire process and the public’s trus t. To many, soliciting public comment on a matter on which the majority has issued an opinion just months before will be seen as merely an exercise in futility. Moreover, I find it troubling that the majority elected to use the disqualification statement circulated by Ch ief Justice Taylor and Justice Markman in Adair to set forth new law in this case. Given that th e statement was itself made in response to allegations of appearance of impropriety against the authors, the election to issue that statem ent was highly unusual, an d because the statement was not binding on this Court, I question the rationale behind relying on that statement to effectuate change in this particular case. Rather, I w ould have preferred the current majority to ad dress its preference on how Canon 2 should be interpreted in a more transparent manner and in a more appropriate and public forum; namely, the upcoming public hearing that has been scheduled for this precise purpose.

2S T A T E O F M I C H I G A N SUPREME COURT

In re Honorable MICHAEL J. HALEY, No. 127453 Judge, 86th District Court.

WEAVER, J. ( concurring ). I concur in the majority’s deci sion to adopt the Judicial Tenure Commission’s (JTC’s) recommendation of a public censure for Judge Haley’s acceptance of University of Michigan football tickets from a defense attorney while on the bench, in open court, durin g sentencing, but I strongly disagree with the majority’s reasoning. Every judicial discipline case is important, but the significance of this case goes beyond disciplining an individual ju dge. This case has been used by the majority (Chief Justice Taylor and Justi ces Corrigan, Young, and Markman) as a vehicle to rewrite how the rules of conduc t that govern judges will be applied by questioning and rejecting the applicatio n of the appearance of impropriety standard in Canon 2 of the Co de of Judicial Conduct. The majority (Chief Justice Taylor and Justices Corrigan, Young, and Markman) attempts to distract from the subs tance of the legal issues by persistent mischaracterization of my c oncurrence and motives. The two nonlawyer citizens on the ni ne-member JTC firs t raised the point that Judge Haley’s actions gave the appearance of accepting a bribe:On its appearance the most severe conclusion that can be drawn is a bribe was offered and accepted by a judge during a trial.

Let me make it clear that I do not contend that Judge Haley actually accepted or was even offered a bribe. But to an objective, informed observer, it would appear that Judge Haley was offered and accepted a bribe for favorable treatment. Further, I do not stand alone in disag reeing with the major ity’s rejection of the appearance of impropriety standard se t out in Canon 2(A) of the Code of Judicial Conduct. Justices Cavanagh, Kelly, and I agree that the majority errs in rejecting consideration of and trivializing the appearance of impropriety created by Judge Haley’s conduct under Canon 2(A) of the Code of Judicial Conduct. It is true, as the majority conclude s, that Judge Haley violated Canon 5(C)(4)(c) of the Code of Judicial Cond uct by accepting a gift during a hearing from an attorney rep resenting a criminal defendant. But that is not the only judicial duty that the JTC found that Ju dge Haley’s acceptance of the University of Michigan football tickets while on the bench violated. The JTC based its recommended discip line on its conclusion that Judge Haley’s acceptance of the tickets violated a total of nine judicial duties articulated by the Michigan Constitution, the Michigan Court Rules, and the Michigan Code of Judicial Conduct. Unprecedented and incorrect is the major ity’s holding that consideration of only the one mo st specific violation of judicial duty is appropriate in determining the disc ipline to be imposed.

2The timing of the majority’s new approach to JTC cases, and its vigorous rejection of the appearance of impropriety st andard of Canon 2(A) , is noteworthy. Canon 2(A) states in pertinent part: Public confidence in the judici ary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety . [Emphasis added.] Members of the majority ha ve recently been accused of their own appearances of impropriety for their partic ipation in various cases. They have attempted to characterize these accusations as politically and philosophically motivated, but it is alarming that now the majority’s app arent solution to their predicament is to rewrite how the rules that govern th e conduct of judges will be applied. 1

1 There have been a numb er of motions for disqua lification against the justices in the majority based on the justices’ actions. For example: ● On February 20, 2006, the Committee to Re-elect Justi ce Maura Corrigan sent out a fund-raising letter from former Go vernor John Engler stating that “[w]e cannot lower our guard should the Fiegers of the trial bar raise and spend large amounts of money in hopes of altering the election by an 11th hour sneak attack.” This statement was one of the grounds listed in the motion for disqualification filed against Justice Corrigan by the respondent, Geoffrey Fieger, in Grievance Administrator v Fieger, 475 Mich 1211 (2006). ● In a speech at the Republican Party state convention in August 26, 2000, Justice Young said that “Geoffrey Fieger, and his trial lawyer cohorts hate this court. There’s honor in that.” This st atement was one of the grounds listed in the motion for disqualification f iled against Justice Young by the plaintiff’s attorney, Geoffrey Fieger, in Gilbert v DaimlerChrysler Corp, 469 Mich 883 (2003). ● A campaign ad paid for by “Rob ert Young for Justice,” “Stephen Markman for Justice,” and “Clifford Taylor for Jus tice” included the language “No wonder Geoffrey Fieger, Jesse Jackson and the trial lawyers support Robinson, Fitzgerald and Th omas” (who ran against Chief Justice Taylor and Justices Young and Mark man in the 2000 Supreme Court election). This statement was one of the gr ounds listed in the motion for disqualification filed (continued...)

3___________________ ______________ The majority (Chief Justice Taylor and Justices Corrigan, Young, and Markman) seriously errs in rejecting consideration of and trivializing the appearance of impropriety creat ed by Judge Haley’s cond uct under Canon 2(A) of the Code of Judicial Conduct. The majority also errs in its une xplained failure to consider the JTC’s findings of seven additional instances of judicial misconduct.
A While Judge Haley was on the bench, in open cour t, he accepted a gift of two University of Mich igan football tickets, valued at $92, from attorney Richard Benedict, during a criminal hearing in wh ich Mr. Benedict was representing the criminal defendant. Transcripts from th e hearing reveal that Judge Haley planned to sentence the defendant, Mr. Benedict’s client, at a later date. However, after accepting the gift from th e defendant’s attorney, Judge Haley immediately imposed a sentence on the d efendant, stating to Mr. Benedict, “I’ll just sentence her right now and save you the trip back.” Saving Mr. Benedict a “trip back” meant that Mr. Benedict would not have to repeat the time-consuming,
(...continued) against Chief Justi ce Taylor and Justices Young and Markman by the plaintiff’s attorney, Geoffrey Fieger, in Gilbert. ● In Adair v Michigan, 474 Mich 1027 (2006), there was a motion filed asking for the disqualification of Chief Jus tice Taylor and Justi ce Markman. Chief Justice Taylor’s wife and Justice Mark man’s wife are lawyers employed by the state Attorney General’s o ffice. Sharing a household and sharing income with a spouse who was given an at -will job by a public offi cial whose office regularly appears before the Cour t formed the basis for the moti on for disqualification filed against Chief Justice Taylor and Justice Markman in Adair

.

4approximately two-hour round trip from Traverse City to the court in Bellaire for sentencing at a second hearing. The Judicial Tenure Commission (JTC) found that this conduct violated two provisions of the Mich igan Constitution and a relat ed Michigan court rule, two separate Michigan court rules, and five canons of the Code of Judicial Conduct. In light of thes e violations of judicial co nduct, the JTC recommended to this Court that Judge Hale y be publicly censured. The JTC majority highlighted in it s reasons for the recommended sanction that Judge Haley’s acceptance of the tickets created an appearance of impropriety, noting that the appearance of impropriety “goes right to the heart of a fair, impartial, and unbias ed judiciary.” The two nonlawyer, citizen members of the JTC recommended not only a public censure, but also a 30-day suspension without pa y. They emphasized the appearance of impropriety created by Judge Haley’s acceptance of the tickets, and stated: There was no reasonable argum ent or fact presented convincing us the Respon dent [Judge Haley] a ppreciates the severity of his action. It is abundantly cl ear to us, though, that a judge taking a gift from a lawyer with a case before him—while sitting on the bench no less—severely harms th e judiciary and the appearance of propriety. His actions may well ha ve a negative reflection on judges everywhere. The ultimate result is erosion of the public’s respect and confidence in the judiciary and our judicial system. What is most offending is this whole thing took place on the bench of a courtroom that belongs to the people of the state of Michigan. By popular vote the people bestowed on him the honor of serving them. They pu t their confidence and trust in him to render

5justice fairly to all who come before him. His actions violated that trust. On its appearance the most severe conclusion that can be drawn is a bribe was o ffered and accepted by a judg e during a trial. The least is that the judge’s behavior was in appropriate. Either way it was wrong. [Emphasis in original.] B The majority errs in refusing to co nsider whether Judge Haley’s acceptance of football tickets on the bench violated Canon 2(A) of the Code of Judicial Conduct by creating an appearance of impropri ety. The majority concludes that it is “inappropriate” to consider whether Judge Haley created an appearance of impropriety under Canon 2(A). Ante at 1. In so doing, the majority questions and rejects the application of the appearance of impropriety standard. Canon 2(A) provides in full: A Judge Should Avoid Impropr iety and the Appearance of Impropriety in All Activities. A. Public confidence in th e judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of improp riety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on condu ct that might be viewed as burdensome by the ordinary citizen and shou ld do so freely and willingly. Despite the Judicial Tenure Commission (JTC)’s finding that Judge Haley’s acceptance of the tickets fro m a defense attorn ey while on the bench during the sentencing of the defense attorney’s client created an appearance of impropriety, the majority explicitly refuses to consid er whether the judge’s conduct violated

6Canon 2(A) of the Code of Judici al Conduct by creating an appearance of impropriety. The majority misleadingly states that it “decline[s] to creat e an independent ‘appearance of impropriety’ standard to judge respondent’s [Judge Haley’s] behavior when there is an express, controlling judicial canon.” Ante at 14. In purporting to “decline to create” an appearance of impropriety standard, the majority misstates the law governing judicial disciplin ary cases. There is no need

to create an appearance of impropriety standard . That standard already exists as an express, controlling judi cial canon—Canon 2(A) of the Code of Judicial Conduct. The JTC found that the viol ations of Canon 2(A) supported the discipline that it recommended for the judg e. By refusing to consider whether there was an appearance of impropriety, the majority effectivel y dispenses with one of the canons in the Code of Judicial Conduct, Canon 2(A), which states that a judge should avoid the appearance of impropriety in all activities. For the first time in the context of a JTC case, the major ity opines that the Court must rely on the on e most specific violation to the exclusion of any additional violations. A vi olation of one canon has neve r been deemed to subsume a violation of other canons . Any violation of any ca non is its own breach of judicial duty and every se parate violation needs to be determined and recognized in the reasons for the discipline imposed. This issue, whether the Court can refuse to consider a violation of the appearance of impropriety stand ard of Canon 2(A), was not argued or briefed by the parties. Nevertheless, the majo rity uses this case

7to expand upon the foundation laid by Ch ief Justice Taylor and Justice Markman’s statement in Adair v Michigan, 2 where the two justices strongly criticized the appearance of impropriety st andard and declined to di squalify themselves from participating in the case where their own appearance of impr opriety was raised. 3 The majority now relies on Adair to attack the appearance of impropriety standard of Canon 2(A). It is noteworthy that the majo rity now uses the statement
in Adair, in which a party was seeking the disqualification of two justices, to rewrite how the rules governing the conduct of all judges, including the justices of this Court, will now be applied. Moreover, it must be noted that the members of today’s majority (Chief Justice Taylor and Justices Corrigan, Yo ung, and Markman) joined in the creation of a set of required factors for the JTC to apply in judicial discipline cases to ensure that equivalent miscondu ct is treated equivalently. 4 Two of the Brown

2 Adair v Michigan, 474 Mich 1027 (2006).

3 In their January 31 , 2006, statement in Adair, Chief Justice Taylor and Justice Markman explained their decisi ons not to recuse themselves from participating in a case in which the Attorney General was representing a party and the motion for disqualification was based on their spouses’ employment with the office of the Attorney Gen eral. Justices Corrigan and Y oung agreed with the legal reasoning and analysis of the statement. The alleged app earance of impropriety created by sharing household an d income with a spouse who was given an at-will job by a public official whose office regularly appears before the Court was the grounds for the motion for disqualification filed agains t Chief Justice Taylor and Justice Markman in Adair

. 4 See In re Brown, 461 Mich 1291, 1292-1293 (2 000), authored by Justice Markman.

8factors that this Court determined are “relev ant to the level of sanctions” to be imposed include cons ideration of the app earance of impropriety. 5 It is inconsistent and lacks common sense for the majority to require that the JTC consider the appearance of impropriety on the one hand, and then prec lude consideration of the appearance of impropriety on the other. The appearance of improp riety violation here—the appearance that the judge was accepting a bribe—is a most serious threat to the public’s trust and confidence in the judiciary. This appearance of accepting a bribe, putting preference in the legal system on sale, and giving favored treatment in return for a gift is inherently detrimen tal to the legal system.
Let me make it clear again I do not contend that Judge Haley actually accepted or was even o ffered a bribe. But to an objective, informed observer, it would appear that Judge Haley was offered an d accepted a bribe for favorable

treatment. As the JTC found, “[t]he appearance of impropriety in this matter, however, goes right to th e heart of a fair, impartial, and unbiased judiciary.” 6 The public’s confidence in the judiciary is deeply shaken by th e belief that some

5 Id. at 1292.

6 Judicial Tenure Commission Decisi on and Recommendation for Order of Discipline, p 13 (emphasis in original).

9attorneys or litigants are trea ted differently than others on the basis of the gifts offered to a judge.
C In addition to the majority’s stat ed refusal to consider Judge Haley’s appearance of impropriety, in violation of Can on 2(A), the major ity inexplicably fails to address an additional seven instances of misconduct. The Judicial Tenure Commission (JTC) found that Judge Haley’s conduct constituted: (1) misconduct in office as defined by Co nst 1963, art 6, § 30 and MCR 9.205; (2) conduct clearly prejudicial to the administration of justice as defined by Const 1963, art 6, § 30 and M CR 9.205; (3) a failu re to establish, maintain, enforce, and person ally observe high standard s of conduct so that the integrity and independence of the judiciary may be preserved, contrary to Code of Judicial Conduct, Ca non 1; (4) irresponsible or im proper conduct that erodes the public’s confidence in the judiciary in violation of Canon 2(A); (5) conduct involving impropriety and the appearance of impropriet y in violation of Canon 2(A); (6) a failure to conduct oneself at all times in a manner that would enhance the public’s confidence in th e integrity and impartiality of the judiciary, contrary to Canon 2(B); (7) improper acceptance of a gift from a donor whose interests have come, or are likely to come, before the judge, cont rary to Canon 5(C)(4)(c); (8) conduct that exposes the legal profession or the courts to obloquy, contempt, censure, or reproach in viol ation of MCR 9.104(A)(2); and (9) conduct that is

10contrary to justice, ethics, honesty, or good morals in violation of MCR 9.104(A)(3). The majority (Chief Justice Taylor and Justices Corrigan, Young, and Markman) premises its acceptance of the recommended discipline on only one of the nine violations cited by the JTC. The majority a pparently concludes that the violation of Canon 5(C)(4 )(c), which specifically involves the improper acceptance of a gift, makes a ll the other violations of the Michigan Constitution, court rules, and canons enumerated by the JTC irrelevant. But the majority’s reliance on one vi olation does not comport with the obligations imposed on judges by the Constitu tion, court rules, and canons. Nor is such reliance consistent with this Court’ s precedent. The sep arate provisions of the Constitution, court rules, and canons ha ve consistently been understood to impose separate obligations and duties up on judges. 7 A violation of a judicial duty is its own separate offense and should co ntinue to be recognized as such.

7 See In re Trudel, 468 Mich 1243 (2003) (The judge engaged in judicial misconduct in violation of Ca nons 1, 2[A], 2[B], 2[C], 3[B][1], 3[B][2], and 3[C].); In re Lawrence, 417 Mich 248; 335 NW2d 456 (1983) (The judge was found to have violated Canons 2, 3[C], and 5[C][1] of the Code of Judicial Conduct.); In re Chrzanowski, 465 Mich 468; 636 NW2d 758 (2001) (The judge was found to have violated Canons 2[A], 2[ C], and 3[B][4] of the Code of Judicial Conduct.); In re Hocking, 451 Mich 1; 546 NW2d 234 (1996) (The judge was found to have violated Canon s 1, 2[A], 2[B], 3[A][3], and 3[A][8] of the Code of Judicial conduct.); In re Del Rio, 400 Mich 665; 256 NW2d 727 (1977) (The judge was found to have violated Canons 1, 2[A], 2[B], an d 3[A][3] of the Code of Judicial conduct.); In re Moore, 464 Mich 98; 626 NW2d 98 (2001) (The judge was found to have violated Canons 1, 2[A] , 2[B], 3[A][3], 3[A][8], 3[A][9], and (continued...)

11___________________ ______________ CONCLUSION I accept the Judicial Tenure Commission (JTC)’s conclusion that Judge Haley was telling the truth when he stated that the gift of the tickets did not influence the sentence imposed on Mr. Bene dict’s client. Further, Judge Haley is to be commended for his leadership and ha rd work in establishing the therapeutic drug courts in the district courts of th e counties of Leelanau , Grand Traverse, and Antrim, which have been of great value to the community and the judicial system. But what occurred on th e bench was wron g and unworthy of both Judge Haley and retired Judge, now practicing attorney, Richard Benedict. Judge Haley’s actions in accepting the tickets on the bench, during a criminal hearing in which Mr. Benedict was representing th e defendant, created an appearance of impropriety that deeply damaged the judicial system. When confronted with Mr. Benedict’s offer of free footba ll tickets during a criminal proceeding, Judge Haley should ha ve simply said, “Mr. Benedict, you are out of order. Please take your seat.” It should be remembered by both judges and attorneys that informality, familiarity, acts of personal friendship, and “Good Ole Boy” activity have no place in a court hearing. Court business is the only busine ss that should be conducted

(...continued) 3[A][10] of the Code of Judicial Conduct.); and In re Seitz, 441 Mich 590; 495 NW2d 559 (1993) (The judge was found to have violated Canons 1, 2[A], 2[B], 3[A][3], 3[A][5], 3[A][9], 3[B][1], and 3[B] [2] of the Code of Judicial Conduct.).

12during a court hearing; th ere should be no impropr iety or appearance of impropriety in the courtroom. The comments of the nonlawyer, c itizen members of the JTC bear repeating: What is most offending is this whole thing took place on the bench of a courtroom that belongs to the people of the state of Michigan. By popular vote the people bestowed on [Judge Haley] the honor of serving them. Th ey put their confidence and trust in him to render justice fairly to all who come before him. His actions violated that trust. On its appearance the most severe conclusion that can be drawn is a bribe was o ffered and accepted by a judg e during a trial. The least is that the judge’s behavior was in appropriate. Either way it was wrong. [8] The people of the state of Michigan have also put their confidence and trust in the members of this Court to uphold the law as written. It is not expected that when the going gets tough, justices who so ardently and frequently claim to be champions of judicial restraint will conve niently change the manner in which the laws governing their own conduct are to be applied. Elizabeth A. Weaver

8 Because of the seriousness of the appearance of impropriety created here, I could agree with the two nonlawyer, citizen members of the JTC that Judge Haley should not merely be publicly ce nsured, but should also be suspended without pay for 30 days. However, the JTC’s recomme ndation of a public censure is reasonable in light of its thorough review of the Brown factors. Therefore, I concur with the majority’s decision to adopt the recommende d public censure.

13________________ _______________ S T A T E O F M I C H I G A N
SUPREME COURT

In re Honorable MICHAEL J. HALEY Judge, 86th District Court. No. 127453

KELLY, J. ( concurring ). This appeal is from the recomme ndation of the Judicial Tenure Commission (JTC) that we publicly censure respondent 86th District Court Judge Michael J. Haley. After ha ving the benefit of full br iefing and oral argument of counsel, I agree with the JT C’s recommendation to publicly censure Judge Haley. However, my reasons are different from th ose of the majority and the JTC.
F ACTUAL B ACKGROUND On October 14, 2003, after Judge Hale y accepted a defendant’s guilty plea, the defendant’s attorney, Ri chard L. Benedict, asked p ermission of the judge to approach the bench. When Judge Haley granted the re quest, both Benedict and the prosecutor approached the judge. Benedict placed on the bench two tickets to an upcoming University of Michigan Wolverines footba ll game and slid them toward the judge. The following co nversation ensued: Benedict : You got to promise to go. The Court : It’s a week from Saturday? Benedict : No, Saturday.The Court : This Saturday, Hmm, I could go. Benedict : Promise? The Court : I promise to go? I’ve got to make a phone call. Today’s Tuesday, where are you tomorrow? Benedict : The office. No, I’m in Kalkaska. If you want it, take it. The Court : Okay. If there’s anybody else that— Benedict : When you said you were in terested, I indicated that I still have to ask another. If you can’t go somebody’s got to go. The Court : I’ll make sure somebody goes and that you get paid. Benedict : I don’t need to get paid. The Court : Okay. All right. Benedict : I need to make sure there are two people sitting in the seats. Then, although Judge Haley had previo usly stated on the record that he would sentence Benedict’s cl ient on November 6, 2003, he proceeded to sentence the defendant immediately. He later indicat ed that he had deci ded to sentence the defendant on the spot in the in terest of judicial economy.
P ROCEEDINGS B ELOW These events and Judge Haley’s response s to the JTC investigation of them led the JTC to file a formal two-count complaint against the judge alleging: (I) “Impropriety and/or the App earance of Impropriety” and (II) “Misrepresentation/Lack of Candor.” Count II was later dismissed.

2The complaint alleged that Judge Ha ley’s conduct on October 14, 2003, constituted:

a. Misconduct in office as d efined by Michigan Constitution 1963, Article VI, § 30 as ame nded, MCR 9.205, as amended; b. Conduct clearly prejudicial to the administration of justice as defined by the Michigan Cons titution 1963, Article VI, §30 as amended, MCR 9.205, as amended;

c. Failure to observe high sta ndards of conduct so that the integrity and independence of the judiciary may be preserved, contrary to the Code of J udicial Conduct, Canon 1; d. Irresponsible or improper conduct which erodes public confidence in the judiciary, in vi olation of the Co de of Judicial Conduct, Canon 2A;

e. Conduct involving impropriety and the appearance of impropriety, which erodes public confidence in the judiciary, in violation of the code of Judicial Conduct, Canon 2A; f. Failure to conduct oneself at all times in a manner which would enhance the public’s conf idence in the in tegrity of the judiciary, contrary to the Code of Judicial Conduct, Canon 2B;
g. Allowing family, social, or other relationships to influence judicial conduct or judgme nt, contrary to Canon 2C; h. Improper acceptance of a gift from a donor whose interests have come or are likely to come b efore the court, contrary to Canon 5C(4(c)[sic]; i. Conduct in violation of rel evant portions of MCR 9.104 in that such conduct is: prejudicial to the administration of justice, contrary to MCR 9.104(1); exposes the legal profession or courts to obloquy, contempt, cens ure or reproach, cont rary to MCR 9.104(2); contrary to justice, ethics, honest y or good morals, in violation of MCR 9.104(A)(3); and violates the st andards or rules of professional responsibility adopted by the Sup reme Court, contrary to MCR 9.104(4).

3This Court appointed reti red Circuit Court Judge Casper O. Grathwohl to act as master in this case. After heari ng the evidence and rev iewing the facts, Judge Grathwohl conc luded that, while res pondent’s actions were improper, they did not constitute judicial misconduct. The examiner, who conducted the pro ceeding on behalf of the JTC, objected to the master’s finding that respondent’s conduct did not constitute judicial misconduct. The JTC heard oral argument on the objection, found judicial misconduct, and issued a recommendatio n and order of discipline. In making its recommendation, the JT C applied the factors stated in In re
Brown , 461 Mich 1291, 1292-1 293 (2000). It listed all relevant factors and applied the facts of the case to them. Mindful of this Court’s desire for proportionality, the JTC also consid ered other case holdings involving the acceptance of gifts made in this st ate and in other jurisdictions. All nine members of the JTC disag reed with the master and found that Judge Haley had indeed committed judici al misconduct. Seven of the nine recommended public censure. The two me mbers who concurred in part and dissented in part would have publicly censured the judge and suspended him without pay for 30 days.
I SSUES ON A PPEAL On appeal, Judge Haley argues that this Court should reject the JTC’s recommendation. He asserts th at the finding that acceptan ce of the football tickets constitutes misconduct was erroneous. He argues that the Code of Judicial

4Conduct, Canon 5(C)(4)(b), permits the gift of footba ll tickets as an “ordinary social hospitality.” He asserts also th at the JTC erred in concluding that his conduct gave the appearance of impropriety. Finally, he argues that the recommended sanction of public censure is in appropriate in light of the facts of the case. In another argument, Judg e Haley claims that combining the judicial and prosecutorial functions of the JTC in one body violates due pr ocess. This Court recently decided this issue in In re Chrzanowski, 465 Mich 468; 636 NW2d 758 (2001). I agree with the majority that combinin g the investigative and adjudicative functions of the JTC into one body does not offend due process. No persuasive reason has been given to revisit that decision today.
R ELEVANT S TANDARDS The power to discipline a Mi chigan judge lies exclusiv ely in this Court, and the Court exercises it on the reco mmendation of the JTC. Const 1963, art 6, § 30. This Court reviews the JTC’s factual findings and disciplinary recommendations de novo. In re Hathaway , 464 Mich 672, 684; 6 30 NW2d 850 (2001). The appropriate standard of proof is a preponderance of the evidence. In re Noecker, 472 Mich 1, 8; 691 NW2d 440 (2005).
T HE S OCIAL H OSPITALITY E XCEPTION TO C ANON 5(C) Judge Haley argues that, under the C ode of Judicial Conduct, Canon 5(C)(4)(b), his act of accepting the footba ll tickets cannot constitute misconduct.

5He asserts that the tickets were nothing more than a form of ordinary social hospitality. Canon 5(C)(4) creates the category of social hospitality. It provides an exception from the prohibition regarding gift s. It states in relevant part: Neither a judge nor a family me mber residing in the judge’s household should accept a gift, bequ est, favor, or loan from anyone except as follows: * * * (b) A judge or a family me mber residing in the judge’s household may accept ordinary soci al hospitality; a gift, bequest, favor, or loan . . . . The Michigan Code of Judicial Conduc t does not define “ordinary social hospitality,” nor has this Court defined it in case law. Other courts have developed tests to determin e when a gift may be c onsidered ordinary social hospitality. California and Illinois courts have set out such tests. California defines a gift that qualifies as ordinary social hospitality as “[a] type of social event or othe r gift which is so common among people in the judge's community that no reasonable person would believe that (1) the donor was in tending to or would obtain any advantage or (2) the donee would believe that the donor intended to obtain any advantage.” [ Adams v Comm on Judicial Performance , 10 Cal 4th 866, 880; 42 Cal Rp rt 2d 606; 897 P2d 544 (1995), quoting California Judges Ass’n, J udicial Ethics Com, Opinion No 43 (1994), p 4, published in Roth man, California Judicial Conduct Handbook.] The California Supreme Court in Adams emphasized that, in deciding whether something qualifies as social hospitality, the fo cus should be on “the reasonable

6perceptions of an objective observer, rather th an the motive or intent on the part of the judge.” Adams, supra at 880. The Illinois Supreme Court in In re Corboy , 1 defined “social hospitality” as “routine amenities, favors, and courtesi es, which are normally exchanged between friends and acquaintances, and whic h would not create an appearance of impropriety to a reasonable, objective obser ver.” The court emphasized that the test is objective, the touchs tone being a “careful considera tion of social custom.” Id . The court in Corboy stated that such an ev aluation should include the following factors: (1) The monetary value of the gift, (2) the relationship, if any, between the judge and the donor/lender lawyer, (3) the social practices and cu stoms associated with gifts and loans, and (4) the particular circumstances surrounding the gifts and loans. [ Id. at 43.] I am persuaded that the Corboy test is in conformity with the language of Canon 5(C)(4)(b). It exp resses the same meaning of “ordinary social hospitality” as is found in sta ndard dictionaries. 2 Therefore, I would adopt the test.

1 124 Ill2d 29, 42; 528 NE2d 694 (1988).

2 Random House Webster’s College Dictionary (1997) defi nes “ordinary” as “customary; usual; normal.” It defines “social” as “characterized by friendly companionship or relations.” And it defines “hospitality” as “the friendly reception and treatment of guests and strangers.”

7The JTC weighed the Corboy factors and concluded th at the gift of football tickets did not qualify as “ordinary social hospitality.” My application of the factors yields the following findings. Th e monetary value of the two tickets was $92. I agree that their value is within the rang e of what an ordi nary person would find reasonable. Therefore, this factor should be weighed in favor of Judge Haley. The JTC placed great emphasis on the fact that the relationship between Judge Haley and Benedict did not amount to a friendship. These individuals did not frequent each ot her’s homes or engage in activities toge ther outside the world of legal practitioners. I agree that they di d not have a social friendship. But, I disagree with the JTC that the only “social relationshi p” for purposes of Canon 5(C)(4)(b) is a friendship. Nothing in the canon precludes a findi ng that a professional relationship can occasion the giving of gi fts that qualify as ordinary social hospitality. A judge and an attorney do no t need to be friends for a gift to qualify as ordinary social hospitality. Corboy specifically states that an acquaintance relationship is sufficient. Corboy, supra at 42. I believe that a purely professional acquaintanceship may also give rise to a situation where an a ttorney may give a judge a gift acceptable under Canon 5(C)(4)(b). There was testimony in this case that Judge Haley and Benedict have known each other fo r many years. It app ears from the record th at they were in one another’s company at least two or three times a week fo r a period of 17 or 18

8years. This supports a finding that a long professional relationship existed between them and surely qualified them as acquaintances. The JTC found and the testimony esta blished that Benedict had never before given Judge Haley football tickets. The JTC used this fact to find that there was no “social practice” of gift-giving betwee n the two. I disag ree with the JTC’s interpretation of social practices as used in Corboy . The term ”social practice” has a broader meaning than simp ly past social activities. It encompa sses the local practices and customs associ ated with gift-giving. Corboy, supra at 43. Therefore the question is not only whet her Benedict ever ga ve football tickets to Judge Haley before, but whether persons similarly s ituated give event tickets as gifts. It is quite common for one person to offer another an extra ticket to a game, show, or concert. This is es pecially true if the donor ho lds season tickets and cannot attend a particular even t. The facts of this case show that Benedict holds season tickets to University of Michigan f ootball games. The fact s also show that it is common for Benedict to offer tickets to court employees. Benedict is a former judge of the court in which Judg e Haley presides and has maintained a relationship with various court employees. I find that this factor should be weighe d in favor of Judge Haley because of actual social practice. Season ticke tholders commonly offer tickets to acquaintances when they can not attend an event themselv es, as occurred here. The JTC found that the circumstances surrounding the gift, the fact that the gift was made to the judge while on the bench, weigh against finding that it is

9“ordinary social hospitality.” I agree. Th ere is nothing ordinary about the location of the gift-giving here. A judge’s acceptance of a gift while on the bench, even from a close friend, is improper. This factor should be we ighed against Judge Haley. In summary, my application of the Corboy factors to this case leads to a conclusion different from that reach ed by the JTC. Three factors weigh in favor of finding that the gift of the tickets wa s acceptable under Canon 5(C)(4)(b). The fourth factor, regarding the circumstances of the gift-giving, do es not. However, because a professional relationship existed, the gift was valued at under $100, and it is common practice to give such gifts, I would find that th e tickets qualify as “ordinary social hospitality.” The majority holds that “social hosp itality requires a social context.” Ante at 13. It concludes that the gift of th e tickets was improper because the exchange took place in a judicial context. Id. I disagree with this approach to determining whether a gift qualifies as “ordinary social hospitality.” It is my interpretation of the canon th at the focus should be on the gift itself, not on the situation surrounding the gift-giving. The pi votal fact that leads the majority to find that th e gift of the tickets was improper is that the gift-giving took place in Judge Haley’s courtroom. This suggests that, if it had taken place outside the courtroom, the gi ft would not have violated any of the judicial canons. I believe that the circumstances surroundi ng the gift are best evaluated under the “appearance of impropriety” standard set fo rth in Canon 2. I do not believe that

10the location of the gift -giving alone determin es whether the gift is “ordinary social hospitality.”
T HE A PPEARANCE OF I MPROPRIETY Judge Haley argues that the JTC erred in finding that his acceptance of the gift gave the appearance of impropriety. Canon 1 of the Code of J udicial Conduct provides: A Judge Should Uphold the Inte grity and Independence of the Judiciary An independent and honorable j udiciary is indispensable to justice in our society. A judge sh ould participate in establishing, maintaining, and enforcing, and 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. The provisions of this code should be construed and applied to further those objectives. Canon 2 of the Code of Judicial Conduct provides, in part: A Judge Should Avoid Impropr iety and the Appearance of Impropriety in All Activities A. Public confidence in th e judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of improp riety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on condu ct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly. B. A judge should respect and obs erve the law. At all times, the conduct and manner of a j udge should promote public confidence in the inte grity and impartiality of the judiciary. Judge Haley argues that the JTC used the wrong standard for determining whether there was an appearance of impropriety. He argue s that this Court should

11apply the standard set forth in Fredonia Broadcastin g Corp v RCA Corp, 569 F2d 251 (CA 5, 1978). There, the court applied a “layman’s st andard.” The court held that the appearance of impropr iety standard sh ould not be defi ned by using the perceptions of judges or la wyers, but by usin g the perceptions of nonprofessional people. Id. at 256. The JTC contends that the co rrect test is expressed in In Re Johnstone , 2 P3d 1226 (Alas, 2000). The court in Johnstone held that the test is an objective one: whether a reasonable person would believe that an impropriety is afoot. There are no Michigan cases on point co ncerning the applicable test for determining when an appearan ce of impropriety has arise n. I agree with the JTC that the correct test is th e objective reasonable person test, one commonly used in the law to determine the va lidity of a person’s conduct. 3 Therefore, the question is whether J udge Haley’s conduct would have appeared improper to a reasonable person ob jectively viewing the transaction. Judge Haley argues that no evidence was presented showing that his conduct brought disrespect on the judi ciary or had any significance to the general public. However, I note that his own witness, Ronald Jolly, a T raverse City radio talk show host, testified that it was not ap propriate for the judge to take the tickets

3 The reasonable person st andard appears most often in areas of law pertaining to the evaluation of human conduct, specifically , torts and criminal law. See Prosser & Keeton, Torts (5th ed), § 32, 31 Mich igan Law & Practice, 2d, Torts, § 34, and People v Pouncey , 437 Mich 382, 389; 4 71 NW2d 346 (1991).

12while on the bench. Others testified th at the community was confused about the transaction. The judge himself testified that he realizes in hindsight that it is improper for a judge to accep t a gift from any litigant or attorney while on the bench. I would find that there was an appearan ce of impropriety here. It was increased by the fact that, immediately after accepting the tickets, the judge changed his mind about when to senten ce Benedict’s client. To a casual reasonable observer, this suggests that the ti ckets had some influence on the judge. Even though in fact that may not have been true, a reasonabl e observer could well have concluded otherw ise. This appearance of impr oper influence violated Canon 2 of the Michigan Code of Judicial conduct. Judges must be conscious of their ac tions and be ever mindful that conduct proper in one location may be improper in another. Although taking the football tickets as a gift was not misconduct under Canon 5(C)(4)(b), it gave the appearance of impropriety when it occurred on the bench during court proceedings. In fact, I cannot think of a situati on in which it woul d be appropriate for a judge to accept a gift, “social hospi tality” or not, during a regular court proceeding. Therefore, I conclude that th e JTC met its burden of proof to show that Judge Haley’s conduct created the appearance of impr opriety in violation of
Canon 2. The majority holds that it is improper to sanction a judge under Canon 2 if a sanction is appropriate under a different court rule or canon which is more

13specific. 4 In the past, this Court has consis tently found a violation of Canon 2 in cases where there was also a vi olation of a direct court ru le or canon. See e.g., In re Gilbert , 469 Mich 1224; 668 NW2d 892 (2003); In re Chrzanowski , 465 Mich 468; 636 NW2d 758 (2001); In re Moore , 464 Mich 98; 626 NW2d 374 (2001); In
re Ferrara , 458 Mich 350; 582 NW2d 817 (1998); In re Hocking , 451 Mich 1; 546 NW2d 234 (1996); In re Seitz , 441 Mich 590; 495 NW2d 559 (1993). I see no reason, nor has the majority given a reas on, to depart in this case from this Court’s past treatment of Canon 2. In its opinion, the major ity loses sight of the si gnificance of Canon 2 and sadly weakens it. It rend ers Canon 2 inapplicable to conduct that, although permissible under a specific canon, with out question gives the appearance of impropriety. In the past, one of the fu nctions of Canon 2 was to remind judges that with great power comes great re sponsibility. Benign acts performed by judges are not always perceive d as benign by others. But the majority’s ruling reduces the service performe d by Canon 2 of fostering an atmosphere of trust and respect by those whose legal problem s come before Mi chigan courts.

4 In support of its holding, the ma jority refers to statements in Adair v Michigan, 474 Mich 1027, 1039, 1051, 1053 (2006 ) (Taylor, C.J., and Markman, J.), (Corrigan, J., concurring with Tayl or, C.J., and Markman, J.) and (Young, J., concurring with Taylor, C.J., and Markman, J.). Adair involved a motion for recusal brought against Chief Justice Taylor and Justice Markman. As in this case, there was no adversari al briefing or oral argum ent on the application of Canon 2.

14It seems obvious to me that the Code of Judicial Conduct must not only foster behavior but it must occasionally punish judges’ acts that appear improper to the reasonable observer. That includes acts that comp ly with a particular canon but create an impermissible appearance of im propriety under the circumstances in which they are committed . The case before us provides an example of such an act. The responsibilities of a judge extend not only to the business of the courts in its technical sense, but to the role of the judge in an institutional sense. Judges must not stigmatize the judicial system by the appearance of impropriety. Gray,
A voiding the appearance of impropri ety: With great power comes great responsibility, 28 U Ark Little Rock L Rev 63, 66 (Fall, 2005). It has been aptly observed that: The appearance of impropriety standard does not unfairly assume that judges lack integrity, but the alt ernative of asking the public simply to trust that ju dges are upright despite appearances ignores the public’s suspicions abou t public officials in general as well as judges, suspicions that un fortunately have been confirmed and aggravated by s candal after scandal, some of which have involved judges. A reasonable leve l of cynicism by members of the public is justified; it would be naive and foolish for citizens to blindly trust any public official, and it would imprudent for judges to assume, assert, or act as if th ey should be exempt from that skepticism. [Id. at 66-67.] The case of In re Ellender 5 illustrates how a judge’s conduct may be innocent, yet appear improper. In that matter, the Louisiana Supreme Court considered whether a white judge's Halloween costume consisting of black face

5 889 So 2d 225 (La, 2004).

15paint, a fake Afro wig, and an orange prison jumpsuit created an appearance of bias. Id. at 227. The judge wore th e costume at a party held at a restaurant. Five or six patrons who were not party guests w ere present, the resta urant being open to the public. The restaurant staff, includ ing an African-American employee, were also present. Id. Someone who saw the judge in costume compla ined to a local newspaper. The paper ran an article entitled “Local Judge's Masquerade Sparks Racial
Concerns.” Id. The story was picked up by local broadcast media, the Cable News Network, and two television st ations in New Orleans. Id. The Judiciary Commission received complaints from th e National Association for the Advancement of Colored People, and the judge’s colleagues. Id. at 228. The district attorney’s office reviewed the judge’s criminal case rulings and found no race-based disparity in his sentencing. Id. at 232. However, the Louisiana Supreme Court and the Judici ary Commission agreed that the judge's conduct “called into question his ability to be fair and impartial tow ards AfricanAmericans who appear before his court as defendants in criminal proceedings, as well as towards any African -American litigant or atto rney in any proceeding before him, thereby creating th e appearance of impropriety.” Id. at 229. Both the court and the co mmission agreed that the ju dge did not intend to embarrass African-Americans. But the court concluded that “his behavior exhibits his failure to appreciate the effects of his actions on the community as a whole.” Id. at 233.

16In years past, such conduct in Michig an would have been held to violate Canon 2 and would have su bjected the judge to discipline. However, I now question whether, under the majority’s interpretation of Canon 2 here and in Adair , the judge in In re Ellender would be disciplined in this state for creating an appearance of impropriety. Like Ju stice Cavanagh, I question whether the majority’s analysis has left a nything remaining of Canon 2.
A PPROPRIATE D ISCIPLINE This Court’s primary concern in det ermining an appropriate sanction for judicial misconduct is to restore and main tain the dignity and impartiality of the legal system and to protect the public. In re Noecker, supra at 12-13, quoting In
re Ferrara , 458 Mich 350, 372; 58 2 NW2d 817 (1998). In In Re Brown, 6 this Court listed several factors th at should be considered in deciding an appropriate sanction for a judge: (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 usually more serious than the same misconduct off the bench; (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; (4) misconduct that does not implicate the actual administration of justice, or its appearance of impropriety, is less serious than misconduct that does;

6 Supra at 1292-1293.

17(5) misconduct that occurs spon taneously 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 controversy, 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 cons iderations as race, color, ethnic background, gender, or religion a re more serious th an breaches of justice that do not disp arage the integrity of th e system on the basis of a class of citizenship. Central to my decision about the appr opriate sanction in this case is my conclusion that the ju dge’s conduct adversely affected the appearance of impartiality of the court. It is crucial to the functioning of the judiciary that the courts be fair and impartial and that the public perceive them that way. Judge Haley’s acceptance of the tickets in open court made it appear that Benedict had an influence on the judge that was favorable to him and was not shared by others. The courts of this state can contin ue to operate as a suitable forum for dispute resolution only as long as the public believes th at they are unbiased and fair. Conduct like responden t’s undermines the public’s belief in the ability of the courts to function impartially. Because the misconduct was spontaneous, not premeditated or deliberated, I conclude that a public censure is sufficient.
C ONCLUSION I would hold that the gift of the football tickets was ordinary social hospitality within the meani ng of Canon 5(C)(4)(b) of the Michigan Code of

18Judicial Conduct. But the location of the gift-giving toge ther with its timing constituted an appearance of impropriety fo r which the sanction of public censure is warranted. A judge must scrupulously observe the canons of judicial ethics when accepting gifts, and under no circu mstances should a judge accept a gift while on the bench adjudicating a proceeding. For the reasons stated above I concur with the majority’s decision to publicly censure Judge Haley. Marilyn Kelly

19