In re Simpson

500 Mich. 533

902 N.W.2d 383

IN RE Honorable J. Cedric SIMPSON, Judge, 14A District Court.

Docket No. 150404

Calendar No. 1

Supreme Court of Michigan.

Argued October 6, 2016

Decided July 25, 2017

Paul J. Fischer, Margaret N. S. Rynier, and Glenn J. Page for the Judicial Tenure Commission.

Mogill, Posner & Cohen (by Kenneth M. Mogill and Erica N. Lemanski) for respondent.

Amici Curiae: Erane C. Washington for the Vanzetti M. Hamilton Bar Association.

Mark P. Fancher for the Michigan Chapter of the National Conference of Black Lawyers.

BEFORE THE ENTIRE BENCH (except Wilder, J.)

Viviano, J.

This case is before this Court on the recommendation of the Judicial Tenure Commission (JTC) that respondent, 14A District Court Judge J. Cedric Simpson, be removed from office and ordered to pay $7,565.54 in costs. Respondent has filed a petition requesting that this Court reject or modify the recommendation. After reviewing the record and considering the parties' arguments, we agree with the JTC that respondent committed judicial misconduct and that the imposition of costs is warranted. However, we disagree with the JTC that removal from office is warranted. Instead, we conclude that a nine-month suspension without pay is the appropriate sanction.

I. FACTS

Respondent is a judge of the 14A District Court and therefore subject to the Michigan Code of Judicial Conduct. He has no history of misconduct. At the time relevant to this case, he was an adjunct professor at the Ann Arbor campus of Western Michigan University Cooley Law School. During the 2013 summer term, Crystal Vargas was a student in respondent's Pretrial Skills class. In June 2013, Ms. Vargas sought an internship with respondent in the 14A District Court. Respondent accepted Ms. Vargas, and she started her internship on July 10, 2013. Within days, respondent and Ms. Vargas began communicating with each other by telephone call and text message on a frequent basis. Cellular records indicate that several thousand communications were exchanged between respondent and Ms. Vargas from July 23, 2013, to November 30, 2013. Those communications were exchanged at all times of the day and night and on weekends as well.

On September 7, 2013, respondent and Ms. Vargas exchanged seven phone calls and numerous text messages. This was consistent with their pattern of communication during that summer and fall. On September 8, 2013, respondent and Ms. Vargas exchanged six text messages between 1:25 a.m. and 2:29 a.m., and they exchanged an additional six text messages between 4:20 a.m. and 4:23 a.m. At about the time the latter group of text messages was exchanged, Ms. Vargas was involved in a motor vehicle accident at the intersection of Platt Road and Michigan Avenue, less than two miles from respondent's home. Ms. Vargas called respondent at 4:24 a.m., shortly after the accident.

Within a few minutes, while Ms. Vargas was still on the phone with respondent, Pittsfield Township Police Officer Robert Cole arrived at the scene and began investigating whether Ms. Vargas was under the influence of alcohol. At about 4:30 a.m., as Officer Cole was administering field sobriety tests to Ms. Vargas, respondent arrived at the scene. Respondent approached Officer Cole and identified himself as "Judge Simpson." Officer Cole recognized respondent as a judge, stopped the tests, walked toward respondent, and proceeded to briefly explain that Ms. Vargas had been involved in an accident.¹ Respondent then approached Ms. Vargas without Officer Cole's permission and had a brief conversation with her. Officer Cole informed respondent that Ms. Vargas was okay and that he wanted to determine whether she was fit to drive. Respondent asked, "Well, does she just need a ride or something?" Respondent moved away from the immediate vicinity, and Officer Cole continued with the sobriety tests. Based on the results of the tests, Officer Cole administered a preliminary breath test (PBT) to Ms. Vargas. The PBT indicated that Ms. Vargas had a breath-alcohol content (BAC) of 0.137%, and Officer Cole placed her under arrest.

Afterward, respondent left the scene, and Ms. Vargas was transported to the Pittsfield Township Police Department. Because Officer Cole had never had a judge appear at an investigation scene, he promptly informed his supervisor, Sergeant Henry Fusik, about respondent's appearance. Sergeant Fusik, in turn, informed the Director of Public Safety, Chief Matthew Harshberger, about the situation. Sergeant Fusik instructed Officer Cole to process Ms. Vargas's case as he would any other case. Officer Cole subsequently administered two breathalyzer tests to Ms. Vargas, both of which indicated a BAC of 0.10%.

On September 10, 2013, the day before the police department issued a warrant request to Pittsfield Township Attorney Victor Lillich, Mr. Lillich received a telephone call from respondent. According to Mr. Lillich, respondent told him during the telephone conversation that Ms. Vargas was his intern and a "good kid" who was in a "pretty bad relationship." Respondent also told Mr. Lillich that Ms. Vargas "would be the one who would probably be doing some of the work" on an upcoming mediation case with which Mr. Lillich was involved. In addition, respondent observed that there was a discrepancy between the PBT and the breathalyzer results. Mr. Lillich responded that the discrepancy "would not be a big concern" in his decision to issue charges. Respondent requested, and Mr. Lillich agreed to provide him with, a copy of the police report.

On September 15, 2013, Mr. Lillich e-mailed the police report to respondent. In the e-mail, Mr. Lillich advised respondent that the case presented "nothing out of the ordinary" beyond the discrepancy between the PBT and the breathalyzer results, and Mr. Lillich stated that he "would be authorizing an OWI 1st" charge against Ms. Vargas.²

On September 17, 2013, respondent again called Mr. Lillich. According to Mr. Lillich, the "conversation was primarily about" criminal defense attorneys. In particular, Mr. Lillich explained that he and respondent discussed the names of "good defense attorneys" that Ms. Vargas could retain. Additionally, Mr. Lillich agreed to "sit" on the case until Ms. Vargas retained an attorney.

In October 2013, Chief Harshberger sent an e-mail to Mr. Lillich inquiring about the status of the Vargas case. Mr. Lillich replied that he was "sitting on" the case "out of respect and defference [sic] to Judge Simpson." A few days later, however, Mr. Lillich returned the case to the Pittsfield Township Police Department as "denied," with a notation to refer the case to the county prosecutor. The return document indicated that Mr. Lillich disqualified himself from the case "to avoid any inference of impropriety" because respondent had contacted him regarding "his intern, Crystal Vargas."³

The JTC investigated respondent for his conduct related to the Vargas case. On November 12, 2014, the JTC filed a formal complaint against respondent, alleging that he had committed the following three counts of misconduct: (1) interfering with a police investigation, (2) interfering with a prosecution, and (3) making misrepresentations to the JTC. On December 17, 2014, this Court appointed the Honorable Peter Houk to serve as master. The master conducted a three-day hearing and then issued his report on April 28, 2015, finding that each of the three counts of misconduct was proved by a preponderance of the evidence.

On September 1, 2015, the JTC issued its decision and recommendation for discipline. The JTC found by a preponderance of the evidence that respondent interfered with a police investigation, interfered with a prosecution, and made intentional misrepresentations or misleading statements to the JTC. Further, the JTC concluded that the misconduct constituted "misconduct in office" and "conduct ... clearly prejudicial to the administration of justice," Const. 1963, art. 6, § 30 (2),⁴ and that respondent violated the Michigan Code of Judicial Conduct Canons 1,⁵ 2(A),⁶ and 2(B),⁷ as well as MCR 9.104(1), (2), (3), and (4).⁸ In determining the appropriate recommended sanction, the JTC assessed the factors set forth in In re Brown⁹ and concluded that the misconduct implicated four of the seven Brown factors and thus "a more severe sanction" was warranted. The JTC then concluded "that removal from office [was] an appropriate and proportional sanction for Respondent's misconduct." In addition, the JTC requested the imposition of costs in the amount of $7,565.54 because "Respondent made intentional misrepresentations or misleading statements to the [JTC] in his answer to the formal complaint, and during his testimony at the public hearing."¹⁰

Thereafter, respondent filed a petition in this Court to reject or modify the JTC's decision and recommendation. In addition, respondent filed a motion to remand to the JTC for further proceedings based on allegedly exculpatory information that was disclosed as a result of a Freedom of Information Act (FOIA) request to the Pittsfield Township Department of Public Safety. Respondent claimed that the FOIA request revealed significant exculpatory evidence concerning the first two counts of the complaint that had been disclosed to the JTC examiner but not to respondent.¹¹ We remanded the case to the JTC. The JTC, in turn, remanded the case to the master for a determination of whether the evidence would alter his findings, how the nondisclosure occurred, and the reasons for the nondisclosure. After conducting a two-day hearing, the master concluded that the evidence did not alter his previous findings. In addition, the JTC concluded that the evidence did not affect its decision and recommendation.¹² Respondent's petition to modify or reject the JTC's decision and recommendation is now before this Court.

II. STANDARD OF REVIEW

"Judicial tenure cases come to this Court on recommendation of the JTC, but the authority to discipline judicial officers...