Censure of Michigan Judge a Mixed Bag

I am somewhat disturbed by the censure of a Michigan Judge Wade McCree.  I saw the blogosphere flap a while back and decided not to cover the controvery at that time.

The conduct at issue was the Judge sending a photo of him, shirtless, to a female bailiff’s cell phone.

Now the Judge has agreed to the sanction of public censure, according to the Michigan Supreme Court order  which accepted the settlement  (order here, scroll to bottom of page).

Here’s the Huffington Post story.

The agreed-upon language states the Judge was “flippant” during the Commission’s interview, did not treat it seriously.  The flippancy apparently had to do with the Judge saying “there’s no shame to my game.”

Accoring to the order, that “brought shame and obloquy to the judiciary.”

I had to look up “obloquy.”  Merriam Webster’s online dictionary defined it as, “a strongly condemnatory utterance.”  I agree judges should treat official interviews seriously.  But it’s hard to envision how “no shame to my game” was strong condemnatory language against the profession.

Further, the canon implictes judicial speech.  Under that language, isn’t there a risk that judges who say we need “big change” in the courts, or “reform” be subject to sanction?

A number of judicial canons were cited as basis for the McCree censure.

We also adopt the Commission’s conclusion that these facts demonstrate, by a preponderance of the evidence, that respondent breached the standards of judicial conduct in the following ways:

(a) Misconduct in office, as defined by the Michigan Constitution of 1963, as amended, Article 6, Section 30, and MCR 9.205;

(b) Failure to establish, maintain, enforce and personally observe high standards of conduct so that the integrity and independence of the judiciary may be preserved, contrary to the Code of Judicial Conduct, Canon 1;

(c) Irresponsible or improper conduct which erodes public confidence in the judiciary, in violation of the Code of Judicial Conduct, Canon 2A;

(d) Conduct involving impropriety and the appearance of impropriety, in violation of the Code of Judicial Conduct, Canon 2A;

(e) A failure to willingly and freely accept restrictions on conduct, present due to constant public scrutiny, that might be viewed as burdensome on the ordinary citizen, Canon 2A;

(f) Conduct which exposes the legal profession or the courts to obloquy, contempt, censure, or reproach, in violation of MCR 9.104(2); and

(g) A lack of personal responsibility for his own behavior, contrary to MCR 9.205(A).

This case is both interesting and disturbing.  Michigan’s canon that requires judges to “willingly and freely accept restrictions on conduct” is an interesting one.  In Minnesota, judicial canons were amended in December 2008 and continuing on the bench after that date was deemed acceptance of the restrictions.

Obviously, Judge McCree agreed to the language in the settlement agreement.  But I am still troubled by vague rules that require “high standards of conduct so that the integrity and independence of the judiciary may be preserved….”  How can someone conform their conduct when that language is so broad?

Although I am encouraged that the number of formal disciplinary cases nationwide are on the rise, I also want to note that I have noticed a lot of judges now being investigated, charged, or disciplined, are judges of color.  It’s too soon to form a conclusion, but I am going to watch this.  It does not help the overall “integrity” of the system if ethics rules are disproportionately enforced against judges of color.