Judicial discipline; Conditional suspension; In re Probert; Liability for costs, fees, & expenses; MCR 9.202(B); Judicial Tenure Commission (JTC)

In an order, the court adopted in part the JTC’s recommendations while rejecting as moot its recommendation that respondent be removed from office given that he no longer held judicial office as of 1/1/21. It conditionally suspended him without pay for a period of six years, to become effective only if he “regains judicial office during that period.” It also found him liable for costs, fees, and expenses incurred by the JTC in prosecuting the complaint. The court’s order was based on misconduct alleged in the amended complaint, including that he (1) “pled no contest to a crime in 2016 and later made false statements about whether he had done so”; (2) “took several types of funds that belonged to Lapeer County and improperly handled them by depositing them in his and his family’s personal bank accounts and by failing to keep any records related to those funds” (the court declined to formally adopt the JTC’s conclusion that this constituted embezzlement); (3) “improperly failed to disclose his relationships with” three attorneys when he presided over cases in which they appeared or to disqualify himself from the cases; and (4) “testified falsely that he was unaware of Lapeer County’s policy regarding public contracts and that he gave the entire payment for a” money order to a county prosecutor’s office employee. The court adopted the JTC’s factual findings “and conclusions of law to the extent they” were consistent with this order, and the JTC’s “analysis of the appropriate sanction. The cumulative effect and pervasiveness of respondent’s misconduct convinces this Court that respondent should not hold judicial office.” It ordered the JTC to submit an itemized bill of costs.

Concurring, Justice Cavanagh (joined by Justice Clement) agreed with the majority’s findings of fact and conclusion of misconduct, and agreed that, assuming the court “has the authority to impose a conditional suspension on one who is no longer a judge,” a six-year conditional suspension without pay was “a proportionate sanction” here. She wrote separately to express doubts as to Probert’s conclusion that the court “may discipline a former judge who is no longer serving his or her term in office.”