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Proposed restrictions on judicial misconduct investigations raise concerns

Brian Turner
Flickr Creative Commons http://michrad.io/1LXrdJM

The Michigan Supreme Court is considering making changes to rules about how complaints against judges are handled. 

And critics say some of the changes would make it harder to go after judges accused of violating the judicial code of conduct.

The Court proposed thechanges for consideration on August 11, 2016, and since then has been accepting written comments from the public. The court held a public hearing on the proposal on January 17, 2017.

Some critics are worried the proposal would effectively bar the Michigan Judicial Tenure Commission from investigating complaints when the alleged violation is more than three years old.  They said misconduct does not always come to light within three years, and current rules already protect judges against stale claims.

Although the proposed rule change would allow the Judicial Tenure Commission to investigate allegations more than three years old "for good cause,"  critics say the provision is too vague. 

"It will be litigated by every judge who is dealing with misconduct that may be older than three years," Glenn Page, interim executive director of the Judicial Tenure Commission, said at the January 2017 public hearing.

The proposal would also allow the Judicial Tenure Commission to consider alleged misconduct that is  more than three years old if it is related to an alleged pattern of conduct--as long as the last episode of the pattern occurs within the last three years.

In a letter to the Court, Judge Pablo Cortes, chair of the Judicial Tenure Commission, wrote, "It is significant that the vast majority of our sister states – thirty-seven of them, not including Michigan, according to our best information – have not instituted a statute of limitations for judicial misconduct."

"While the amount of time that has passed may be relevant in determining whether and to what extent discipline should be imposed, misconduct, no matter when it occurred, is always relevant to a judge's fitness to hold office," wrote Janet K. Welch, executive director of the State Bar of Michigan, in a statement to the Court.

The letters from the State Bar of Michigan and the Judicial Tenure Commission also objected to proposed rule changes that would prevent  a sitting judge from being subject to discipline for professional misconduct committed before becoming a judge. 

In letters to the Court, the Michigan Judges Association and the Michigan District Judges Association both expressed support for the three year statute of limitations as proposed.

Supreme Court spokesman John Nevin declined to comment because the proposal is under consideration.

Nevin said there is no deadline for the Court to reach a decision on the proposed changes.