The Michigan Supreme Court has issued its ruling on pending disciplinary action against District Judge Thomas Gilbert of Grand Traverse County, who made the strategic error of smoking marijuana at a Rolling Stones concert in Detroit. This ruling is notable, not for the sanction or the offense, but for the revelation of what appears to be bitter infighting among the Justices.
The offense was not contested. Judge Gilbert admitted that he had partaken of the weed at the location specified in the complaint. The issue was the level of punishment that was warranted.
In this state, the Judicial Tenure Commission is charged with developing the facts underlying a complaint against a judge, and recommending action to the Supreme Court. The Court may accept, modify, or reject the discipline recommended. If the judge is willing to enter into a consent agreement with the JTC rather than contest the charge, he can do so but retains the right to withdraw from the consent agreement if the Court is not willing to accept the terms. (This is a new development since the amendment of MCR 9.225. Under the previous version of the rule, a judge who agreed to a consent order in lieu of contesting the charge could not withdraw his consent even if the Court was not willing to accept the JTC's agreement on the sanction.)
A quick resume of the developments is as follows:
- In April 2003, the Court rejected the first proposed consent agreement by a 5-2 vote, finding the proposed sanction of a 90-day suspension without pay, with credit for 28 days spent in drug rehabilitation program, insufficient. Four of the Justices, a majority, ordered the case returned to the JTC for a stronger sanction, without specifying what that sanction should be. The fifth Justice, Weaver, dissented from that decision, voting that the judge be removed from office. She wanted her dissent reported, but the remaining Justices voted to keep the Court's ruling, and Weaver's dissent, confidential.
- In September 2003, the Court again addressed the case after it was resubmitted by the JTC with no essential change in its recommendation. This time, the Court, by a 6-2 vote, ruled that the judge should be suspended for six months, without pay, and without credit for the 28 days spent in treatment. Weaver again dissented, voting for outright removal, and again the ruling and her dissent were kept confidential by the Court.
Under the rule, the judge had a period of 14 days within which to withdraw his consent. In this case, Judge Gilbert did not do so. Thus, on September 25, the Court's order became final, and it was then publicly announced. It was only then that Weaver's two dissents and two contrasting opinions from her colleagues came to light.
Weaver's vote for outright removal reflects her outrage at the hypocrisy of a District Judge sentencing defendants for marijuana violations in cases coming before him while indulging in the same vice himself, and at the judge's apparent unwillingness to admit the scope of his violation of trust, as manifested by his attempt in public to portray this episode as a one-time event, while having privately admitted to the JTC and the Court that he continued to use marijuana "twice per year" since becoming a judge. It was no doubt also influenced somewhat by the fact that the judge in question serves in her home base, Leelenau County.
Weaver's dissent, and the sharp exchange between her and Justices Taylor and Young, was based on her characterization of the Court's confidentiality orders as a "suppression" of the Court's action and her dissents. Weaver takes the position that the court rule requires that the Court act on the JTC's recommendation, and that its action in doing so must be public. She pointed out that the rule provides that
The Supreme Court shall review the record of the proceedings and file a written opinion and judgment, which may accept or reject the recommendations of the commission, or modify the recommendations by imposing a greater, lesser, or entirely different sanction.
She further declared:
The current court rules do provide that if the Judicial Tenure Commission does not file a formal complaint, its members and staff “may not disclose the existence or contents” of a judicial disciplinary investigation. But that confidentiality provision does not apply to the decisions of the Supreme Court. Thus, on April 14 and September 11, 2003, when each justice decided whether to accept, reject, or modify the recommended discipline, those decisions should not have been secreted from the public.
The requirement of a written opinion and judgment, in her view, precludes any effort to keep the decision confidential at any point in the proceedings.
Taylor and Young, by contrast, noted that the parties to the consent agreement expected that it would remain confidential until the order became final under the rule. Young, in particular, accused Weaver of attempting to mislead the public about the confidentiality issue by accusing the majority of "suppressing" the rulings and her dissent. He commented:
Until this case, our dissenting colleague has respected the confidentiality of this process and has seen no need to publish to the world her final judgment on the matter until the normal process had concluded. Consequently, I am shocked that our colleague has suggested that her fellow justices have engaged in a “cover up” when our suppression orders were necessary to prevent her from issuing a public denunciation of Judge Gilbert before the process outlined in our rules had been completed.
Even a judge who has failed to live up to the responsibilities of office is entitled to a fair process. Justice Weaver stands alone in her position that she is entitled to publish her conclusions in a case before the Court itself has acted. In Michigan, an accused still has a right to a trial before an execution, not the other way around.
In like manner, Taylor commented:
. . . It must not be forgotten that this settlement and consent process involving Judge Gilbert, the Judicial Tenure Commission, and this Court, was understood by all to be entered into on the condition of confidentiality.
I thought we could not violate that understanding. Nor do I understand why it would have been a good idea to be public throughout. The reason is that this process, which has resulted in Judge Gilbert’s acceptance of the recommended discipline, could have required the Judicial Tenure Commission to adjudicate this matter had Judge Gilbert rejected the recommended discipline. Had the commission done so, it would have eventually made a discipline recommendation to this Court. If our views had been published, that would undoubtedly prejudice the commission proceedings and, importantly, be unfair to Judge Gilbert.
I do not pretend to know which position is more meritorious. It is well understood in this state that Justice Weaver does not stand on the same ground as the rest of her "conservative" colleagues do, and that there is sometimes some friction between them arising from that fact. For this one Justice, who has served for many years on this Court, to stand alone against the remaining Justices on this rather important though somewhat publicly obscure point of procedure is, to put it mildly, quite remarkable.
Update 10-5-03 -- The Traverse City Record Eagle reports that State Senator Michelle McManus is considering invoking a seldom-used provision of the Michigan Constitution which permits the ouster of a sitting judge by a 2/3 vote of both houses of the Legislature.
(The reference to "the other Gilbert" pertains to the Court's recent order denying Geoffrey Fieger's motion to recuse five of the Justices from hearing his client's appeal, discussed here recently. That case, coincidentally enough, was Gilbert v. Daimler-Chrysler.)
11:43:00 PM 
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