Michigan Supreme Court
Lansing, Michigan 48909
Syllabus
Chief Justice
James H. Brickley
Justices
Charles L. Levin
Michael F. Cavanagh
Patricia J. Boyle
Dorothy Comstock Riley
Conrad L. Mallett, Jr.
Elizabeth A. Weaver
This syllabus was prepared by the Reporter of Decisions.
Reporter of Decisions
William F Haggerty
In re Hocking
Docket No. 99750. Argued October 11, 1995 (Calendar No. 8). Decided
March 22, 1996.
Michigan Supreme Court
Lansing, Michigan 48909
Opinion
Chief Justice
James H. Brickley
Justices
Charles L. Levin
Michael F. Cavanagh
Patricia J. Boyle
Dorothy Comstock Riley
Conrad L. Mallett, Jr.
Elizabeth A. Weaver
IN THE MATTER OF
Plaintiff
and
HONORABLE G. MICHAEL HOCKING
Judge, 56th Circuit Court
Charlotte, Michigan
Plaintiff
FOR PUBLICATION
March 22, 1996
v No. 99750
Plaintiff Not Listed
Defendant
Before: The Entire Court
BOYLE, J.
Formal Complaint No. 48 was filed by the Judicial Tenure Commission[1]
against Judge G. Michael Hocking on May 12, 1994, and subsequently
amended on October 6, 1994. The amended complaint alleged that Judge
Hocking engaged in acts of misconduct including improper touching,
abusive courtroom behavior, inappropriate reasoning at sentencing,
abuse of contempt power, abuse of the grievance process, and perjury.
The Honorable Joseph B. Sullivan, the master appointed by this Court on
June 14, 1994, conducted hearings on October 25, 26, 27, 28, and
November 14 and 30. The master's report, issued on December 28, 1994,
concluded that four of the six instances of alleged behavior
constituted misconduct. The master dismissed the charges of improper
touching and perjury, finding that these allegations were not supported
by a preponderance of the evidence.[2] The master further found that
Judge Hocking's reasons for departing from the sentencing guidelines
"showed a certain obvious lack of sensitivity towards the feeling of
women generally," that on two occasions Judge Hocking was rude and
discourteous,[3] and that Judge Hocking's abuse of the grievance
process in two instances constituted "a failure to avoid impropriety
and the appearance of impropriety, in violation of the Code of Judicial
Conduct Canon 2A." While not specifically charged in the complaint, the
master also made an explicit finding that there was no evidence of
gender bias.
Both parties filed objections to the master's report, and oral argument
was held before the commission on March 20, 1995. The commission
adopted the majority of the master's findings and issued its decision
and recommendation of discipline on April 12, 1995.[4] In its report, a
majority[5] of the commission concluded that Judge Hocking was guilty
of misconduct for improper remarks made during sentencing. The
commission unanimously adopted the master's findings that in two
instances Judge Hocking was rude and discourteous toward two attorneys,
and unanimously agreed that Judge Hocking had abused the grievance
process in one instance.[6] The commission also found a "strong
indication of a pattern of gender bias," but refused to make a formal
finding in this regard because gender bias was not an allegation
formally charged in the complaint.
As a result of this misconduct, a majority of the commission
recommended that Judge Hocking be suspended from judicial office for
thirty days without pay.[7]
On May 24, 1995, Judge Hocking petitioned this Court, pursuant to MCR
9.224 and MCR 9.225, to reject or modify the commission's
recommendation, contending that the commission's findings of misconduct
are erroneous.
After review of the record de novo,[8] we conclude that the exchange
with attorney Elaine Sharp violates the Code of Judicial Conduct.
However, while we do not condone Judge Hocking's controversial tone and
courtroom manner in addressing attorney Pamela Maas, or his rationale
regarding defendant Hensick's state of mind, we do not find that this
behavior is judicial misconduct. Nor can we conclude that Judge Hocking
abused the grievance process. The commission recommended that Judge
Hocking be suspended for thirty days without pay for this misconduct.
Having concluded that Judge Hocking was not persistently rude and
discourteous, MCR 9.205(C), that his remarks during sentencing were not
clearly prejudicial to the fair administration of justice, MCR 9.205(C)
and that he did not abuse the grievance process, we find no pattern of
misconduct. Judge Hocking's conduct with respect to Ms. Sharp was
clearly prejudicial to the administration of justice, MCR 9.205(C)(4),
and constitutes misconduct. After reviewing the record in this case and
the discipline this Court has imposed in similar cases of judicial
misconduct, we find suspension an appropriate sanction, although our
conclusions with regard to Judge Hocking's actions do not warrant the
term of suspension recommended.
I
As the cornerstone of our tripartite system of government, the
judiciary has a public trust to both uphold and represent the rule of
law. Those who exercise authority and those who consent to its exercise
have reciprocal obligations. Citizens are bound to observe a certain
line of conduct in exchange for the protections of the law, and judges,
no less than other officers of government, are bound to conduct
themselves with honor and dignity.[9] Thus, the ideal judge is a person
who has by habit and practice achieved self-control and acquired the
virtue of being able to will and act as a just person ought to act.
But as James Madison noted early on, discipline must also come from
within the system.
If men were angels, no
government would be necessary. If angels were to govern men, neither
external nor internal controls on government would be necessary. In
framing a government which is to be administered by men over men, the
great difficulty lies in this: you must first enable the government to
control the governed; and in the next place oblige it to control
itself. A dependence on the people is, no doubt, the primary control on
the government; but experience has taught mankind the necessity of
auxiliary precautions. [The Federalist Papers, No 51 (New York: Mentor-
Penguin Books, 1961), p 322.]
The issue before us is whether the record supports the findings of
misconduct with which Judge Hocking is charged, and if so, what level
of discipline that conduct merits. See In re Bennett, 403 Mich 178,
184; 267 NW2d 914 (1978).
II
Three of the instances of misconduct alleged by the commission arise
directly or indirectly from Judge Hocking's reasons for departing from
the sentencing guidelines during the sentencing of Timothy Hensick
after conviction for criminal sexual conduct in People v Hensick,
Livington Circuit Court, File No. 91-6537-FC. Although these
proceedings do not involve the merits of the Hensick case, because the
only issues before us are those relating to the recommended discipline
of Judge Hocking, some background is necessary to assess the propriety
of Judge Hocking's conduct and comments.
In Hensick, the criminal sexual conduct charges arose from allegations
of oral and digital penetration committed by an attorney with a female
client he was representing in divorce proceedings. Between 1:00 and
2:00 a.m. on April 29, 1990, Mr. Hensick called his client and arranged
to meet with her at her apartment a short time later. After he arrived,
there were two instances of fellatio and Hensick penetrated her
digitally. Hensick claimed the sex was consensual and that they parted
amicably. His client, however, filed charges claiming that the contact
was involuntary.
The element of force or coercion was vigorously disputed by the parties
at trial. There was no evidence of physical blows or use of a weapon,
or any allegations by the complainant that Hensick used verbal threats
to compel her to yield to his advances. Although there was testimony
that the complainant herself admitted that Hensick had not threatened
her and that perhaps Hensick did not know how she felt, at trial she
testified that she was too frightened to resist participating in the
aforementioned acts.
The jury accepted the complainant's version of the incident, finding
sufficient evidence of coercion to convict Hensick of three counts of
first-degree criminal sexual conduct.[10] At sentencing, Judge Hocking
denied a defense motion for a directed verdict, finding that there was
sufficient evidence regarding each element of the crime. He went on to
observe, however, that this was the weakest criminal case he had ever
seen stating, "had I tried this case without a jury, I would have
acquitted the Defendant . . . ." As Judge Hocking began to pronounce
sentence, it was apparent that he intended to deviate significantly
downward from the sentencing guidelines because he felt the guidelines
did not adequately deal with the facts of the case. Shortly after he
began his lengthy explanation of why he thought the guidelines were
inapplicable, assistant prosecuting attorney Pamela Maas rose to her
feet and attempted to argue that the scoring of the guidelines was not
at issue because Hensick did not contest the scoring. Judge Hocking
angrily ordered Ms. Maas to sit down stating that she could appeal if
she did not like what he had to say.
As suddenly as the outburst arose, his demeanor returned to normal and
he proceeded to explain why he believed this Court's opinion in People
v Milbourn, 435 Mich 630; 461 NW2d 1 (1990), required him to depart
from the sentencing guidelines.
This background sets the stage for the following misconduct charges.[11]
III
Two allegations of misconduct arose directly from the Hensick
sentencing: first, that Judge Hocking's justifications for departing
from the guidelines were blatantly improper and sexist; second, that
Judge Hocking was impermissibly rude during the colloquy with assistant
prosecutor Maas.
Judge Hocking was clearly in absolute disagreement with the jury
verdict finding the defendant guilty of three counts of first-degree
criminal sexual conduct.[12] The jury reached its decision on the basis
of sufficient evidence to prove every element of the crime, however,
and Judge Hocking knew the sentencing guidelines required him to impose
a prison term of ten to twenty-five years or to provide adequate
justification for deviating downward. Therefore, to justify his
significant downward departure,[13] Judge Hocking apparently felt he
had to sequentially eliminate all conceivable grounds for why the
sentence should not be higher.
In discussing why a lower sentence was appropriate, Judge Hocking moved
through approximately a dozen numbered reasons to depart from the
guidelines. He repeatedly stated that his principal basis for his
sentencing analysis was People v Milbourn, supra. Having argued
Milbourn before this Court, Judge Hocking believed this Court's opinion
in that case required that he deviate from the guidelines if he felt
the guidelines did not address the facts of the case.
Two of the twelve reasons given to justify the sentence imposed became
the focus of national media attention. In considering where the facts
of this case fell on the continuum of criminal sexual conduct cases,
Judge Hocking stated:
A mitigating factor,
although minor, is evidence that the Defendant helped the victim up off
the floor after the occurrence. Another mitigating factor--that the
victim told a spouse- abuse agency the sex was not forced but
resistance--her resistance was worn down by the Defendant's persistent
request.
Judge Hocking also used language that was interpreted to mean that a
lesser sentence was appropriate because "the victim asked for it." In
addressing what he felt was the defendant's lack of culpability, as
compared to other offenses and offenders, he stated:
[T]he fact that the victim
agreed to the Defendant's 2:00 a.m., Sunday morning visit is a
mitigating circumstance, again with regard to the presence of an evil
state of mind on behalf of the Defendant. This is not a perfect world,
but as common sense tells me that when a man calls a woman at 2:00 a.m.
and says he wants to come over and talk and he's--that's accepted, a
reasonable person, whether you want to shake your head or not, Ms.
Maas, I haven't been living in a shell. A reasonable person understands
that means certain things. They may be wrong.
* * *
In this regard, I do not
find any credible evidence that the victim consented to the Defendant's
visit for professional reasons. The jury could believe whatever they
want.
The commission adopted the master's conclusion that "statements of that
nature[[14]] hold the court up to ridicule in violation of the
standards of judicial conduct."
In reviewing Judge Hocking's comments, we note that, generally, a judge
is not subject to discipline for "appealable errors of law or abuses of
discretion," In re King, 409 Mass 590, 601; 568 NE2d 588 (1991), and
"[j]udicial error alone is not a sufficient basis upon which to found
violations of the Code of Judicial Conduct . . . ." In re Elliston, 789
SW2d 469, 477 (Mo, 1990). However, as the commission notes, the
justification for departure--the act of judicial discretion--is not at
issue in this case. Judge Hocking is not subject to discipline for his
decision to depart downward on the basis of the facts of the case.
Relief for unjustified departure, if warranted, is available through
appeal. Whether relief on appeal is warranted or not, it does not
follow that a judicial officer is immune from discipline for the manner
in which the decision is articulated.
It is clear, however, that every graceless, distasteful, or bungled
attempt to communicate the reason for a judge's decision cannot serve
as the basis for judicial discipline. We are committed to eradicating
sexual stereotypes, but we cannot ignore the cost of censoring inept
expressions of opinion. The commission's contention that Judge
Hocking's comments were "rife with remarks revealing his frustration
with the jury verdict and his sympathy for the defendant" illustrates
the problem.
Judge Hocking was obviously straining to find ground to justify a
reduced sentence. However, disagreement with a jury verdict is not
improper, and sympathy for a defendant a judge believes to have been
wrongfully convicted is not inappropriate. The rationale for a severe
sentence would inevitably have a negative effect on those who disagree
with the verdict, and "sympathetic" remarks would have a negative
effect on those who believed the verdict was correct. In short, we
would discourage honest explanation of the rationale for tailoring
sentences to the offender and the offense were we to define misconduct
from the perspective of the person most sensitive to such remarks.[15]
Similarly, both the trial judge's responsibility to find facts in a
bench trial and to control proceedings would be substantially
compromised if, absent discriminatory animus or a pattern of behavior,
remarks--critical or disapproving of counsel, the parties, or their
cases--constituted misconduct in office.
A judge's comments are not immune from censure simply because they are
based on facts adduced at trial or events occurring at trial. However,
where a judge is stating an opinion drawn from his knowledge of the
proceedings, the threshold for a finding of misconduct must be flexible
enough to accommodate the imperatives of the system.[16] A judge's mode
of articulating a basis for decision may exhibit such a degree of
antagonism or other offensive conduct that a single incident would
indicate that impartial judgment is not reasonably possible. In that
event, the judge has prejudiced the administration of justice because
the conduct undermines public confidence in the impartiality of justice.
We conclude that the line between insensitive comment[17] and conduct
that is clearly prejudicial to the administration of justice requires
us to assess the communication of judicial opinion from an objective
perspective. Comment based on knowledge acquired during a proceeding is
misconduct when it is so clearly unacceptable that it displays an
unfavorable predisposition indicating an inability to impartially
determine the facts. See Liteky v United States, 510 US 540, 551; 114 S
Ct 1147; 127 L Ed 2d 474 (1994), or when, in combination with other
conduct violative of MCR 9.205, it is clearly prejudicial to the fair
administration of justice. Reviewing the statements from this
perspective in the context in which they were made, we find that Judge
Hocking's attempt to explain his view of the defendant's lack of
malevolent purpose does not constitute misconduct.
Judge Hocking's statements were motivated by his intent to comply with
Milbourn, on the basis of evidence he had heard at trial. They were not
explicitly abusive,[18] nor do they evidence persistent misconduct. The
comments were tasteless and undoubtedly offensive to the sensibilities
of many citizens. They do not display a mindset unable to render fair
judgment.
IV
The second charge of misconduct arising from the Hensick sentencing
relates to the exchange between Judge Hocking and assistant prosecuting
attorney Maas.
The sentencing proceeded in proper form. Ms. Maas argued first and
urged that the sentence should be that recommended by the probation
department; defense counsel then spoke and requested that the court
deviate from the sentencing guidelines. After defense counsel's
argument, Ms. Maas addressed the court a second time and objected to
any deviation from the guidelines. Each party apparently spoke as long
as they wished and neither was interrupted by the court.
When allocution had been completed, Judge Hocking began the formal
pronouncement of sentence. Although the parties had scored the
guidelines identically, it was immediately apparent that Judge Hocking
had decided to lower the scoring. As he began to explain his
justification for a lower score, Ms. Maas rose to her feet. Judge
Hocking ordered Ms. Maas to sit down stating that it was his turn to
speak and that Maas had a right to appeal anything she considered
improper. The following colloquy ensued at this point:
Ms. Maas: Your Honor, if I can just indicate: the
Guidelines were not contested by Mr. McIntyre, and I had case law which
I could present . . .
The Court: I have . . .
Mr. McIntyre: . . . to the Court.
The Court: . . . already told you that the Milbourne
[sic]—sit down. I'm talking, and I'm not done. And you're not going to
interrupt me. If you don't like what I say, appeal.
Ms. Maas: Your Honor, I just feel that it is my duty
to bring before the Court . . .
The Court: Fine.
Ms. Maas: . . . additional case law . . .
The Court: Bring it.
Mr. McIntyre: . . . on the specific issue that . . .
The Court: You bring it.
Ms. Maas: . . . his Court raised before and . . .
The Court: You bring it.
Ms. Maas: . . . I've been denied my opportunity
before this Court to raise it.
The Court: Overruled. Sit down. The Milbourne case
makes it very clear that whether you say anything or whether he says
anything, it's my job to fashion a sentence that is proportionate, and
it's my job to talk and to make comments, suggestions, about the
Michigan Sentencing Guidelines, and I'm going to do that, whether you
like it or not.
The commission unanimously concurred with the master's finding, that
"[u]nfortunately, in this instance, as well as in another,[[19]]
courtesy was lost and rudeness took over."
We agree, and Judge Hocking does not dispute,[20] that he clearly lost
his temper in this exchange and that he should have handled the
interruption in a less acrimonious manner. As we have observed,
however, every angry retort or act of discourtesy during the course of
a proceeding does not amount to judicial misconduct. The facts of each
instance must be evaluated separately, and a judge is only subject to
discipline when the comment amounts to "conduct that is clearly
prejudicial to the administration of justice . . . ." MCR 9.205(E).
Having reviewed the videotape of the Hensick sentencing, we find that
the exchange with Ms. Maas was not clearly prejudicial to the
administration of justice. Ms. Maas was given two opportunities to
fully advise the court of her views on the sentence. Obviously
distressed by the direction she saw the judge was taking, she
interrupted the pronouncement of sentence. Lapses in decorum sometimes
occur when attorneys are startled by a judge's action, and Ms. Maas'
reaction is understandable. However, the interruption of sentencing was
clearly a breach of the unwritten rules of courtroom etiquette, and
Judge Hocking's reaction, while overly strong, is also understandable.
Having been given an unlimited opportunity to present her views, Ms.
Maas breached courtroom convention by interrupting the judge during the
one portion of a criminal trial when by tradition and custom a judge
speaks without interruption.
V
The third charge of misconduct involves conduct occurring outside a
judicial proceeding that followed the Hensick trial. The amended
complaint alleged that Judge Hocking filed an unwarranted grievance
against attorney Bonnie Miller to retaliate for the request for
investigation she had filed with the commission on behalf of the
Livingston Area Council Against Spouse Abuse (LACASA). The request for
investigation was signed by all LACASA board members, and the cover
letter was signed by Ms. Miller. The complaint arose from Judge
Hocking's handling of the Hensick sentencing.
A great deal of controversy erupted in the immediate wake of the
Hensick sentencing. Judge Hocking's justifications for departing
downward were cited in the local and national media as evidence that he
was grossly deficient in gender sensitivity. Ms. Miller was a vocal
critic of Judge Hocking's comments, and an interview with her appeared
in a tabloid called the Weekly World News.[21] The World News article
contained quotes from Ms. Miller that suggested that Judge Hocking
imposed a lenient sentence because he had attended law school with the
defendant's brother and that Judge Hocking delayed ruling on the motion
for a new trial in an attempt to dissuade the victim from testifying at
a subsequent trial.
Asserting that the article was defamatory, Judge Hocking filed a
request for investigation with the Attorney Grievance Commission. The
commission notified Ms. Miller of the request for an investigation and
asked that Miller file an answer. In her response, Ms. Miller explained
that while she had spoken with a reporter about the case, the reporter
mischaracterized her statements and inaccurately quoted her comments
out of context. After reviewing Ms. Miller's response and investigating
the matter further, the commission dismissed the grievance.
The master concluded, and the Judicial Tenure Commission accepted and
adopted the master's conclusion, that Judge Hocking filed the grievance
against Ms. Miller in retaliation for her role in filing the LACASA
grievance. The commission quoted the master's finding that "'certainly
there was no basis to file such a grievance; and filing such a
grievance constitutes a failure to avoid impropriety and the appearance
of impropriety, in violation of the Code of Judicial Conduct, Canon
2(A).'"[22] We disagree.
A request for investigation with the Attorney Grievance Commission is a
proper response to arguably defamatory statements made by attorneys.
Direct response by the judge in the media is itself problematic.
Regardless of the merits of the dispute, a media war of words may erode
public confidence in the judiciary. Further, depending on the context
and substance of a public response, the judge may expose himself to
charges of ethical violations. See Canon 3A(6).[23]
The preponderance of the evidence does not support the conclusion that
Judge Hocking filed the grievance for retaliatory purposes. The
Judicial Tenure Commission found that the record "indicates that
Respondent filed the grievance . . . simply to 'get even' with Ms.
Miller . . . ." We find no record basis for the finding that the
respondent filed the grievance to get even. To the contrary, if, as the
record indicates, Judge Hocking believed that Ms. Miller recklessly
made defamatory statements against him, Rule 8.3(a)[24] of the Michigan
Rules of Professional Conduct imposed on him a duty to report Ms.
Miller's conduct to the Attorney Grievance Commission.
We decline to endorse the commission's implicit rationale that unless
the commission finds independent justification for a grievance, the
grievance was filed for retaliatory purposes. There may be situations
in which the filing of a grievance is so patently frivolous as to
evidence ill will on the part of the complainant. The record in this
case does not present such a situation. The Attorney Grievance
Commission did not treat the grievance as insufficient or patently
frivolous,[25] but instead conducted an investigation. Although the
commission eventually dismissed the grievance because Ms. Miller denied
the context of the statements cited in the Weekly World News article,
if Ms. Miller had acknowledged that the article was accurate, it is
possible that the commission would have found grounds for discipline.
There being no record evidence that the grievance was filed to "get
even,"[26] or any basis for an inference that it was so motivated, we
find no misconduct.
VI
The final charge of misconduct relates to Judge Hocking's behavior in
the postjudgment custody proceedings in McPherson v McPherson, Eaton
Circuit Court, File No. 82-409-DM. The amended complaint alleged that
Judge Hocking was intemperate and abusive with respect to attorney
Elaine Sharp and that he abused his contempt power.
Ms. Sharp represented the father in the proceedings and appeared before
Judge Hocking on December 5, 1991, to challenge the court's previous
ruling terminating joint custody. Speaking in a harsh tone, Judge
Hocking quickly informed Ms. Sharp that he perceived the motion before
the court as simply a disguised second motion for rehearing. He
demanded to know in what way the motion was new. As Ms. Sharp attempted
to argue the merits of the motion, Judge Hocking quickly interrupted
her, ruled that the motion was nothing more than a motion for
reconsideration, and awarded costs and attorney fees as punishment for
filing a frivolous motion. The following excerpt illustrates the
caustic and abusive exchange between Judge Hocking and Ms. Sharp:
The Court: I'm not going to
get into the merits. I want you to tell me why this motion to
reinstitute joint custody is nothing more than an attempt to rehash an
order that's already been entered which was based on an evidentiary
hearing. You can call it an apple if you want, but it was an
evidentiary hearing. . . .
Ms. Sharp: All right, fine.
Then tell me where the evidence was of 7.22(3)(A)? [MCL 722.23(a); MSA
25.312(3)(a).] Did you consider the love, affection, emotional ties of
the parent and child?
The Court: All right, that's
enough. Your motion to reinstitute joint custody is denied. It is
nothing more than a motion for reconsideration. The filing of the
motion the Court finds to be frivolous and without legal merit, and the
Court awards costs and attorney fees in the form of sanctions against
the attorney for the Defendant and the Defendant. If you present . . .
Ms. Sharp: Upon what legal
basis? Would the Court kindly articulate?
The Court: Yes, I will, MCL
600.2591 [MSA 27A.2591].
Ms. Sharp: No, not for the
costs but for the frivolous motion.
The Court: If you don't like
my ruling, ma'am, the Court of Appeals awaits you.
Ms. Sharp: Okay, could we
have an order denying custody. I've got an order here denying custody .
. .
The Court: The only order
I'm going to sign right now is an order for sanctions, costs, and . . .
Ms. Sharp: Are . . .
The Court: Don't interrupt
me.
Ms. Sharp: Don't interrupt
me.
The Court: Let's do it this
way. That's warning number one.
Ms. Sharp: Are you denying
it?
The Court: Warning number
one. You get three, and then you're in contempt.
Ms. Sharp: All right, the
Court's denying it?
The Court: All right, that's
two.
Ms. Sharp: Court's denying
it?
The Court: Yes, the Court's
denying it.
Ms. Sharp: The Court is
denying . . .
The Court: The Court denied
your motion.
Ms. Sharp: To reinstitute
joint custody?
The Court: Yes, ma'am.
Ms. Sharp: The Court denied
it?
The Court: The Court denied
it.
Ms. Sharp: Without
convincing evidence?
The Court: Ma'am, I don't
know what planet you're from.
Ms. Sharp: And I don't know
what--you're from.
The Court: You're in
contempt of court, and your fine is $250.
Ms. Sharp: You know it.
The Court: And you will be
taken into custody, and you'll serve five days in the county jail . . .
Ms. Sharp: Fine.
The Court: . . . until you
pay.
Ms. Sharp: Fine, then give
me the newspaper reporter and give me my court attorney now.
The Court: You've got it,
ma'am.
Ms. Sharp: Because you're on
another planet. You're out of whack. You are totally, totally . . .
The Court: Take her out.
Ms. Sharp: Go and get the
motion for--motion filed. I want the record still on, please. Let the
record reflect that counsel is objecting, that there is no basis for
contempt, that counsel is immediately demanding court and defense
counsel and calling the newspapers.
The master concluded, and the commission affirmed, that Judge Hocking
"behaved irresponsibly and injudiciously, diminishing public confidence
in the judiciary in violation of CJC, Canon 2(A) and (B)." Neither the
master nor the commission concluded that Judge Hocking abused his
contempt authority. We agree with this conclusion.
After reviewing the audiotape of the McPherson hearing, it is readily
apparent that Judge Hocking's behavior was shockingly injudicious.
Unlike the exchange with Ms. Maas in Hensick, we find that Judge
Hocking instigated a confrontational exchange with Ms. Sharp by
challenging her to tell him why her motion was not the frivolous action
he clearly had predetermined it was, made caustic comments in an
abusive tone, and personally attacked Ms. Sharp, conduct that is
clearly prejudicial to the administration of justice in violation of
the Code of Judicial Conduct. Unlike the exchange with Ms. Maas, in
which Judge Hocking was abrupt and briefly abrasive, the entire
exchange with Ms. Sharp illustrates a total lack of self-control and an
antagonistic mind-set predisposed to unfavorable disposition.
Attorney Sharp acted improperly in arguing the merits of the motion
when she had been instructed not to do so and in continuing to argue
after the court had ruled. Fortunately, such behavior is rare, but a
judge has undoubted authority to control runaway behavior up to and
including contempt. To hold that a trial judge may not express strong
displeasure or even anger, would ignore the reality that the potential
for such reactions induces a level of civility in the process, without
which the system literally could not function.
However, in this incident, in which Judge Hocking also admits he was
rude and discourteous, we find misconduct prejudicial to the
administration of justice. We adopt the master's findings and affirm
the commission's conclusions.
VII
Finally, while not charged as a separate allegation in the complaint,
the master made an explicit finding that Judge Hocking's actions did
not illustrate gender bias. The commission found "a strong indication
of gender bias in Respondent's conduct, but since the complaint did not
formally charge a pattern of gender bias, we [the Commission] make no
findings in this regard."
Although evidence of gender bias certainly would be grounds for
discipline,[27] we cannot conclude that the record in this case
establishes such prejudice. The fact that attorneys Maas and Sharp are
both women and both happen to have been the object of respondent's
anger does not evidence a discriminatory pattern. We strongly suspect
that had the attorneys in these situations been male, Judge Hocking
would have reacted in the same fashion. Thus, because the complaint did
not charge, and the evidence does not establish, gender bias, we agree
that such a conclusion is inappropriate.
VIII
In assessing the appropriate sanction in judicial disciplinary
proceedings, our primary charge is to fashion a penalty that maintains
the honor and the integrity of the judiciary, deters similar conduct,
and furthers the administration of justice. See In re Seitz, 441 Mich
590, 624; 495 NW2d 559 (1993).
The purpose of judicial discipline is to protect the
court system and the public it serves from unacceptable judicial
behavior. The discipline to be imposed, then, is to be determined by
the extent of the protection needed, based upon the seriousness of the
judge's misconduct and the likelihood that it would recur. [In re
Disciplinary Proceedings Against Gorenstein, 147 Wis 2d 861, 873; 434
NW2d 603 (1989).]
We must carefully maintain the distinction between protection and
punishment. In disciplining Judge Hocking it is not our intention to
obstruct any judge's ability to exercise judicial discretion or freedom
of thought and expression, as long as such exercise does not blemish
the fair administration of justice.
Although we do not condone Judge Hocking's intemperate language in
addressing Ms. Maas during the sentencing proceeding, or his inept
expression of his reasons for finding mitigating circumstances in the
Hensick incident, we find that these comments, individually or in
combination, do not constitute judicial misconduct. Nor can we conclude
that the request for investigation filed against Ms. Miller constitutes
misconduct.
The scathing attack on Ms. Sharp during the McPherson hearing clearly
constitutes misconduct in violation of Canons 1,[28] 2A,[29] 2B,[30]
3A(3),[31] 3A(8)[32] of the Code of Judicial Conduct and was clearly
prejudicial to the administration of justice. MCR 9.205(E).
Conclusion
Judges demand respect for and responsibility to the law. But respect
for those who are officers of the law, on whose shoulders the consent
of the governed ultimately rests, cannot be simply commanded.
Judges must be examples of responsible behavior. The process of
self-mastery through which a judge strives to approach the judicial
ideal requires us to exercise the power we are given over others by
seeing ourselves as those who must trust us do. If the mirror we hold
before us reflects a person who uses authority as an experiment in the
use of power or as displacement for personal disappointment,
introspection is necessary and correction is essential.
"[T]he respect due . . . judicial officers"[33] has been earned by the
men and women who, for more than two-hundred years, have borne with
honor and dignity the burden of bringing order to civic life in the
courtrooms of our republic. Respect for the judiciary is a legacy that
each generation of judges must nurture and foster in turn.
On the basis of our review of the record, we conclude that Judge
Hocking's conduct in the Sharp incident merits the censure of a brief
suspension. Judge Hocking is suspended without pay for three days
effective the day following the date of issuance of the Court's
judgment order.
Patricia J. Boyle
James H. Brickley
Dorothy Comstock Riley
Conrad L. Mallett, Jr.
Elizabeth A. Weaver
1 The Judicial Tenure Commission was created by Const 1963, art 6,
§ 30(1), which states:
A judicial tenure commission is established
consisting of nine persons selected for three-year terms as follows:
Four members shall be judges elected by the judges of the courts in
which they serve; one shall be a court of appeals judge, one a circuit
judge, one a probate judge and one a judge of a court of limited
jurisdiction. Three shall be members of the state bar who shall be
elected by the members of the state bar of whom one shall be a judge
and two shall not be judges. Two shall be appointed by the governor;
the members appointed by the governor shall not be judges, retired
judges or members of the state bar. Terms shall be staggered as
provided by rule of the supreme court. Vacancies shall be filled by the
appointing power.
2 The commission agreed that the charges of unconsented touching and
perjury were not proven by a preponderance of the evidence. After
reviewing the charges and the record, we also agree that these
allegations have not been proven. Thus, these counts will not be
discussed further.
3 Although the master concluded that Judge Hocking had not abused his
contempt authority, he did find that Judge Hocking was rude and
discourteous in addressing two different attorneys in two separate
cases.
4 Specifically the commission found:
(1) Respondent violated the
high standards of conduct necessary to preserve the integrity of the
judiciary in violation of Canon 1 of the Code of Judicial Conduct.
(2) Respondent eroded and
discouraged public confidence in the integrity and impartiality of the
judiciary by his irresponsible and improper conduct and manner, and his
failure to avoid impropriety or appearance of impropriety, in violation
of Canons 2A and 2B of the Code of Judicial Conduct.
(3) Respondent's rude and
unprofessional conduct towards attorneys appearing before him violated
Canon 3A(3) of the Code of Judicial Conduct.
(4) Respondent failed to
avoid a controversial manner or tone when addressing counsel, and
failed to avoid interruptions of counsel in their arguments, in
violation of Canon 3A(8).
(5) Respondent engaged in
conduct clearly prejudicial to the administration of justice by making
improper comments insulting to the female victims during sentencing of
a convicted rapist which suggested that the victim invited the sexual
assault when she allowed the defendant, her divorce attorney, to come
over in the early hours of the morning after he told her he needed to
speak with her.
5 Three commissioners dissented from this finding.
6 The commission declined to find misconduct with respect to the
grievance Judge Hocking filed against attorney Elaine Sharp. After
reviewing the record, we agree with the commission that "the complaint
did not charge Respondent with filing a retaliatory or bad faith
grievance against Ms. Sharp, and that contemptuous conduct by an
attorney could be a legitimate basis for the filing of a request for
investigation of attorney misconduct by a judge."
7 Two commissioners filed a dissent in respect to the sanction and
concluded that the proper level of discipline in this case would be
public censure.
8 In assessing the propriety of a judge's actions we review the record
de novo. In re Somers, 384 Mich 320; 182 NW2d 341 (1971).
9 The law is a silent magistrate and a magistrate a speaking law.
McNeil, ed, 2 Calvin, Institute of the Christian Religion
(Philadelphia, The Westminster Press, 1960), Book IV, p 1502.
10 MCL 750.520b; MSA 28.788(2).
11 The sentencing proceedings in this case were videotaped, and the
Court has reviewed this tape extensively in evaluating the charges of
misconduct.
12 During the sentencing proceedings, he made the following statements:
There's no--let there be no
question about the fact that had I tried this case without a jury, I
would have acquitted the Defendant, that's not the test for this motion.
* * *
One factor I have to
consider is that this was the weakest criminal case that resulted in a
conviction that I've ever seen, and I've been an attorney for 15 years,
14 of which I was a Prosecuting Attorney.
* * *
Another issue, which is the
crux of my granting an appeal bond, is the severity of the weakness of
the Prosecution's case; that is, if this Court sat without a jury and
did its duty, it was clear that the Prosecution failed to prove the
case beyond a reasonable doubt. I would have acquitted this Defendant.
13 Judge Hocking imposed concurrent sentences of eighteen months to ten
years in prison for each of the three counts.
14 The master found and the commission agreed that these statements
were "bizarre" and "showed a certain obvious lack of sensitivity
towards the feeling of women generally . . . ."
15 MCR 9.205(C)(6), (7). In re Del Rio, 400 Mich 665, 717-718; 256 NW2d
727 (1977).
16 As Justice Scalia recently noted in Liteky v United States, 510 US
540, 555-556; 114 S Ct 1147; 127 L Ed 2d 474 (1994) "expressions of
impatience, dissatisfaction, annoyance, and even anger, that are within
the bounds of what imperfect men and women, even after having been
confirmed as federal judges, sometimes display" do not establish bias
or partiality. "A judge's ordinary efforts at courtroom
administration--even a stern and short- tempered judge's ordinary
efforts at courtroom administration--remain immune."
17 We emphasize that these remarks did not involve injecting extraneous
matters into the proceedings, or explicitly demeaning remarks, In re
Probert, 411 Mich 210, 235; 308 NW2d 773 (1981), nor did they involve
abusive language or an abusive manner, In re Bennett, supra.
18 In Probert, n 17 supra at 236, we found misconduct in a pattern of
misconduct which included the respondent's "demeaning, sarcastic
remarks about the defendant's admitted homosexuality [which] made it
obvious that Judge Probert sentenced him not for what he did, but for
what he was."
Evidence of antagonism could, because of a protected characteristic,
implicate several sections of MCR 9.205.
19 The other instance is the exchange between Judge Hocking and
attorney Elaine Sharp that we address beginning on page 21.
20 Judge Hocking admits that he lost his temper but contends that it is
only misconduct if the judge persistently fails to treat persons with
respect and courtesy. See MCR 9.205(E).
21 The reporter did not acknowledge that he worked for the Weekly World
News but, rather, misled Ms. Miller by claiming to work for the West
Palm Beach Florida News, a paper that does not exist.
22 See n 24.
23 Canon 3A(6) states:
A judge should abstain from public comment about a
pending or impending proceeding in any court, and should require a
similar abstention on the part of court personnel subject to the
judge's direction and control. This subsection does not prohibit a
judge from making public statements in the course of official duties or
from explaining for public information the procedures of the court or
the judge's holdings or actions.
24 Rule 8.3(a) states:
A lawyer having knowledge that another lawyer has
committed a significant violation of the Rules of Professional Conduct
that raises a substantial question as to that lawyer's honesty,
trustworthiness, or fitness as a lawyer shall inform the Attorney
Grievance Commission.
25 MCR 9.112(C)(1)(a).
26 By concluding that Judge Hocking did not file the request for
investigation for improper purposes, we do not reach the question
whether MCR 9.125 provides absolute immunity from disciplinary
proceedings as well as from civil suit.
27 See Canon 2B:
A judge should respect and observe the law. At all
times, the conduct and manner of a judge should promote public
confidence in the integrity and impartiality of the judiciary. Without
regard to a person's race, gender, or other protected personal
characteristic, a judge should treat every person fairly, with courtesy
and respect.
28 Canon 1 states:
An independent and honorable judiciary is
indispensable to justice in our society. A judge should 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 judge should always
be aware that the judicial system is for the benefit of the litigant
and the public, not the judiciary. The provision of this code should be
construed and applied to further those objectives.
29 Canon 2A states:
Public confidence in the judiciary is eroded by
irresponsible or improper conduct by judges. A judge must avoid all
impropriety and appearance of impropriety. A judge must expect to be
the subject of constant public scrutiny. A judge must therefore accept
restrictions on conduct that might be viewed as burdensome by the
ordinary citizen and should do so freely and willingly.
30 See n 27.
31 Canon 3A(3) states:
A judge should be patient, dignified, and courteous
to litigants, jurors, witnesses, lawyers, and others with whom the
judge deals in an official capacity, and should require similar conduct
of lawyers, and of staff, court officials, and others subject to the
judge's direction and control.
32 Canon 3A(8) in pertinent part states:
Conversation between the judge and counsel in court
is often necessary, but the judge should be studious to avoid
controversies that are apt to obscure the merits of the dispute between
litigants and lead to its unjust disposition. In addressing counsel,
litigants, or witnesses, the judge should avoid a controversial manner
or tone.
A judge should avoid interruptions of counsel in
their arguments except to clarify their positions, and should not be
tempted to the unnecessary display of learning or a premature judgment.
33 Oath on Admission to the Bar. SBR 15, § 3.
S T A T E O F M I C H I G A N
SUPREME COURT
IN RE:
HONORABLE G. MICHAEL HOCKING,
Judge, 56th Circuit
Court
No. 99750
BEFORE THE JUDICIAL TENURE
COMMISSION
________________________________________
BEFORE THE ENTIRE BENCH
CAVANAGH, J. (concurring in part and dissenting in part).
I agree with much of the majority's analysis and expressly concur with
parts I, II, III, IV, V, and VII. However, I would hold that Judge
Hocking is not guilty of any judicial misconduct and would dismiss this
case.
I agree with the majority that Judge Hocking is not guilty of any
judicial misconduct with respect to the People v Hensick, Livington
Circuit Court, File No. 91-6537-FC, sentencing proceeding. However, I
cannot agree with the majority's conclusion with respect to Judge
Hocking's conduct during the McPherson v McPherson, Eaton Circuit
Court, File No. 82-409-DM, proceeding. After listening to the audiotape
of the hearing, it becomes clear from the exchange with Ms. Sharp that
Judge Hocking had read her motion before taking the bench. As the
majority notes, "Judge Hocking quickly informed Ms. Sharp that he
perceived the motion before the court as simply a disguised second
motion for rehearing." Slip op at 21. I disagree with the majority's
interpretation that Judge Hocking "instigated a confrontational
exchange with Ms. Sharp . . . ." Id. at 24. Instead of answering Judge
Hocking's question about what was "new" in this motion, Ms. Sharp
continued to argue the merits. It was after her refusal to answer his
question by continuing to argue the merits that Judge Hocking denied
her motion. At that point, I find that Ms. Sharp's behavior became
"shockingly" unprofessional.
Ideally, a judge should not instigate or engage in confrontational
behavior or react to such behavior—no matter how provoked. Yet, every
attorney who regularly appears before the judges of our state—judges
who are forced to operate with limited resources and under great
pressure from the docket—will immediately recognize that outbursts like
Judge Hocking's are far from infrequent. Most judges wrestle with their
self-control, and all hear motions they are predisposed against and
antagonistic toward. I join the majority in wishing we could populate
our courtrooms with judges devoid of temper and full of angelic
patience. But if such perfect creatures exist, their planetary origin
is truly unknown.
This practical observation means the Court either says today what it
does not mean, or will not do tomorrow what it says today. Inevitably,
the interpretation of today's new standard pressed on Judge Hocking
will never be applied so stringently again. If it were, our docket
would be clogged with similar cases. Judge Hocking will have been
censured under a standard designed uniquely for him, a result so
contrary to our role as judges that perhaps this holding itself is
prejudicial to the administration of justice, although not clearly so.
Despite our lofty expectations, some judges from time to time will
stumble. From the record before me, I see evidence that Judge Hocking
lost his temper only once at one attorney who was herself discourteous
and contemptuous. If Judge Hocking regularly behaved this way,
routinely raising his voice at advocates and closing his mind to their
arguments, the administration of justice would indeed be in jeopardy.
This isolated incident, although cause for concern, poses no such
threat. The majority properly dismisses the allegation of misconduct
during the Hensick proceedings because of its isolated nature. I would
urge the same reasoning be applied to place the incident with Ms. Sharp
in its proper perspective.
Judges play a central role in our system of justice and therefore are
appropriately held to exceptionally high standards of conduct. I would
emphasize that Judge Hocking's behavior should not be excused. Judges
should struggle to maintain their temperament and view the cases before
them unobscured by passion. When violations of this standard are
drastic or repeated, we should not hesitate to censure them. But, we do
the judiciary a disservice when we condemn human failings as judicial
misconduct.
An isolated incident of rudeness should be identified, privately
reprimanded, and hopefully prevented from recurring. Such an incident
is not, however, "clearly prejudicial to the administration of
justice," MCR 9.205(C)(4), and should not be the subject of any
suspension from the state's highest court.
Therefore, I would reject the recommendation of the Judicial Tenure
Commission.
Michael F. Cavanagh
Charles L. Levin
In re Hocking
Willingham & CotŠ, P.C. (by John L. CotŠ and Steven
A. Mitchell) [333 Albert Ave., Suite 500, P.O. Box 1070, East Lansing,
MI 48826], for the respondent.
Joseph F. Regnier, Examiner, and Anna Marie Noeske, Staff Attorney [211
West Fort Street, Suite 1410, Detroit, MI 48226], for the Judicial
Tenure Commission.
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