In a recent judicial discipline case, the Michigan Supreme Court rejected a judge’s argument that part of her conduct was protected by the First Amendment, as 2 other courts did for other judges’ speech earlier this year. See Judges’ weekends, living rooms, and free speech.
As found by the Judicial Tenure Commission in its report and recommendation, under a performance-improvement plan imposed by the Chief Judge of her district, the judge was required to report when she got to work. The Court found that, “purportedly” to comply with that requirement, the judge sent “ominous Bible verses” to the Chief Judge and court administrators when she arrived at the courthouse. For example, the judge sent emails to her supervisors and colleagues that stated:
- “Sovereign Lord, my strong deliverer, you shield my head in the day of battle. Do not grant the wicked their desires, Lord; do not let their plans succeed. Those who surround me proudly rear their heads; may the mischief of their lips engulf them. May burning coals fall on them; may they be thrown into fire, into miry pits, never to rise. Psalm 140:7-10.”
- “But the cowardly, the unbelieving, the vile, the murderers, the sexually immoral, those who practice magic arts, the idolaters and all liars – they will be consigned to the fiery lake of burning sulfur. This is the second death. Revelation 21:8.”
When a court administrator asked her to stop sending these messages, the judge replied in an email: “You brood of vipers, how can you who are evil say anything good?”
The judge argued that she was exercising her rights to free speech and religion when she sent the Bible verses. Rejecting that argument, the Court explained:
The Bible verses quoted by respondent were, in the context of respondent’s e-mails, clearly intended to be insulting, discourteous, disrespectful, and menacing toward the recipients. The e-mails also reflect a failure to demonstrate the professionalism demanded of judges.
The right of free speech generally entitles a person to, among other things, protection from government persecution based on speech. . . . The goal of disciplinary proceedings is not punitive; rather, it is to “restore and maintain the dignity and impartiality of the judiciary and to protect the public.” . . . Freedom of speech is not the freedom from all consequences for one’s actions. Moreover, a “judge must . . . accept restrictions on conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.” . . . The First Amendment does not provide government employees carte blanche to engage in conduct that amounts to “insubordination” that “interfere[s] with working relationships.” . . . This type of conduct is certainly beyond the pale for a member of our judiciary. Respondent’s refusal to simply convey that she had arrived at work as required by the Chief Judge’s order amounted to insubordination and clearly interfered with multiple working relationships.
The Court concluded that sending the emails was part of the judge’s obstruction of court administration that also included her failure to comply with the performance plan and her intentional refusal to follow the Chief Judge’s orders.
In addition, the Court found that the judge committed misconduct by:
- Abusing her contempt powers in 2 summary eviction proceedings by failing to hold proper hearings, forcing parties to pay illegal sanctions in civil actions, and unlawfully jailing a process server for civil contempt;
- Summarily dismissing or adjourning cases because a party had used a process server that she believed was dishonest without making factual findings that process had not been served, and, when the Chief Judge admonished her to stop dismissing cases, “pretextually dismiss[ing] cases, misapplying the law to get to the result she wanted—not the result that was just or required;”
- Intentionally disconnecting the videorecording equipment in her courtroom, purposefully failing to maintain a record of proceedings in her courtroom for weeks, using her personal cell phone to record proceedings, and lying to the Commission about disconnecting the equipment; and
- Parking in a handicap loading zone at a gym, blocking in another car, placing an “official business” placard in her vehicle window that said, “this vehicle shall not be cited or impounded under penalty of law,” and flashing her judge’s badge when a police officer arrived.
In aggravation, the Court found that the judge committed much of the misconduct while she was “on the bench,” noting that “whether something occurs ‘on the bench’ is not literal, but rather depends on whether the conduct occurs in that person’s capacity as a judge. . . .” The Court concluded: “Respondent engaged in repeated, deliberate misconduct that besmirched the judiciary’s reputation and prejudiced the administration of justice. The nature and pervasiveness of respondent’s misconduct requires the highest condemnation and harshest sanction.”
Because the judge’s term ended at the end of 2023, the Court rejected as moot the Commission’s recommendation that she be removed from office. (As the Court noted, the judge had been taken off the 2022 ballot because she incorrectly stated on her affidavit of identity that she had paid all outstanding late filing fees under the state campaign finance act.) Instead, the Court imposed a “conditional” 6-year suspension without pay that will only take effect if the now-former judge is elected or appointed to the bench within 6 years; if that happens, she will be suspended without pay until 6 years after the date of the discipline decision. In re Davis (Michigan Supreme Court June 23, 2023).