January 14, 2002


99-31

Proposed Amendment of 
Subchapter 9.200 of 
the Michigan Court Rules
___________________________


          In response to requests from numerous individuals and
groups, the Court is considering a comprehensive amendment of
subchapter 9.200 of the Michigan Court Rules, which applies to the
judicial discipline system.  It has been more than thirty years
since extensive revisions were made to these rules.  The proposal
that the Court today is publishing for comment addresses many of
the concerns that have been raised.  For example, the proposed
addition of subrule 9.202(G) ensures that members of the Judicial
Tenure Commission staff who are involved in investigating and
prosecuting a matter will have no role at the decisional stage of
the matter.  Other proposed amendments enhance the investigative
capacity of the commission, yet at the same time strengthen the due
process rights of those who are being investigated, e.g., the
commission's subpoena power is clarified and there is a requirement
for earlier notification of those whom the commission is asked to
investigate.

          Some of the recommendations that the Court has received
envision changes that this proposal does not incorporate.  For
instance, there have been requests to "bifurcate" the multiple
roles of the commission by making more drastic structural changes,
and to limit the number of terms that commission members may serve. 
The fact that the published proposal does not contain such
provisions, some of which arguably would require constitutional
amendment, should not be viewed as foreclosing debate on those
issues.  To the contrary, the Court welcomes the  views of all who
wish to address any aspect of the proposal or to suggest
alternatives.  All comments will be carefully considered before the
Court takes final action, and the matter will be placed on the
agenda of a public hearing.  Notice of future public hearings will
be provided by the Court and posted at its website,
www.supremecourt.state.mi.us.  Of course, publication of the
proposal and consideration at a public hearing does not imply
probable adoption of the proposal in its present form or, indeed,
that the Court will adopt any version of the proposal.

          
          [The present language would be amended as indicated below.]

Subchapter 9.200 Judicial Tenure Commission

Rule 9.200 Construction

     An independent and honorable judiciary being indispensable to
justice in our society, subchapter 9.200 shall be construed to
preserve the integrity of the judicial system, to enhance public
confidence, and to protect the public, the courts, and the rights
of the judges who are governed by these rules.


Rule 9.201 Definitions

     As used in this chapter, unless the context or subject matter
otherwise requires

     (1)  "commission" means the Judicial Tenure Commission;

     (2)  "judge" means a person who is serving as a judge
of an appellate or trial court by virtue of election,
appointment, or assignment, or a person who formerly held such
office and is named in a request for investigation with respect to
conduct that occurred during the person's tenure and is related to
the office, or a magistrate or referee [of a court]
appointed or elected under the laws of this state;

     (3)  "respondent" is a judge against whom a complaint has been
filed;

     (4)  "chairperson" is the commission chairperson and includes
the acting chairperson;

     (5)  "master" means one or more judges or former
judges[, active or retired,] appointed by the Supreme
Court [on] at the commission's request to hold
hearings on a complaint against a judge filed by the commission;

     (6)  "examiner" means the executive director or equivalent
staff member or other attorney [one or more attorneys]
appointed by the commission to [gather and] present evidence
[and to act as counsel for the commission] at a hearing
before a master, the commission, or [in proceedings in]
the Supreme Court[, before a master, or before the
commission];

     (7)  "complaint" is a written document filed [by]
at the direction of the commission,[‘s]
[order for] recommending [disciplinary] action
[under this chapter] against a judge[,] and
[which] alleg[es]ing specific charges of
misconduct in office, [or] mental or physical disability,
or some other ground that [which] warrants
commission action under Const 1963, art 6, § 30;

     (8)  "request for investigation [grievance]" is
an allegation of judicial misconduct, [or] physical
or mental disability, or other circumstance [within the
commission's jurisdiction] [which] that the
commission may undertake to investigate under Const 1963, art 6,
§ 30, and MCR 9.207.


Rule 9.202     Judicial Tenure Commission; Organization


(A)  Appointment of Commissioners.  As provided by Const 1963, art
6, § 30, the Judicial Tenure Commission consists of 9 persons.  The
commissioners selected by the judges [are to] shall
be chosen by mail vote conducted by the state court administrator. 
The commissioners selected by the state bar members [must]
shall be chosen by mail vote conducted by the State Bar of
Michigan.  Both mail elections must be conducted in accordance with
nomination and election procedures approved by the Supreme Court. 
Immediately after a commissioner's [election or appointment, the
Governor, the state court administrator, and the State Bar of
Michigan] selection, the selecting authority shall
notify [give notice of the election or appointment
to] the Chief Justice.

(B)  Term of Office.  A commissioner's [holds office for
a] term of office shall be 3 years.  To achieve
staggered terms, [three terms expire annually.  In consecutive
years,] the following terms shall expire in
consecutive years:

     (1)  one of the [an] appointments of the
Governor, the judge of a court of limited jurisdiction, and one
of the [an] attorneys elected by the state bar;

     (2)  the other [an] appointment of the Governor,
the probate judge, and the other [an] attorney
elected by the state bar;

     (3)  the Court of Appeals judge, the circuit judge, and the
judge elected by the state bar.

(C)  Vacancy.

     (1)  A vacancy in the office of a commissioner occurs:

          (a)  when a commissioner resigns or is incapable of
serving as a member of the commission;

          (b)  when a judge who is a member of the commission no
longer holds the office [which he or she] held when
selected;

          (c)  when an attorney selected by state bar members is no
longer [admitted] entitled to practice in the courts
of this state; and

          (d)  when an appointee of the Governor becomes an
attorney [or accepts a judicial position].

     (2)  Vacancies must be filled by selection of a successor in
the same manner required for the selection of [his or her]
the predecessor.  The commissioner selected shall
hold[s] office for the unexpired term of the [his
or her] predecessor. If a commissioner is elected or
appointed to a succeeding term, and a vacancy occurs during the
unexpired term of the commissioner being replaced, the replacement
commissioner shall fill the vacancy and serve the unexpired
term.  Vacancies must be filled within 3 months after the
vacancy occurs.

     (3)  A member may retire by submitting a [his or
her] resignation in writing to the commission, which
must certify the vacancy to the selecting authority.

(D)  Commission Expenses [of Commission and Staff].

     (1)  The commission's budget must be submitted to the Supreme
Court for approval.

     (2)  The commission's expenses must be included in and paid
from the appropriation for the Supreme Court.

     (3)  A commissioner may not receive compensation for [his
or her] services but must be paid [his or her]
reasonable and necessary expenses.

     ([4)   The commission may employ an executive director and
other employees to perform the duties it directs, subject to the
availability of funds under its budget.  Commission employees are
exempt from the operation of Const 1963, art 11, § 5, as are
employees of courts of record.]

(E)  Quorum and Chairperson.

     (1)  The commission [elects] shall elect from
its members a chairperson and a vice-chairperson, each to serve 2
years.  The vice-chairperson shall act[s] as
chairperson when the chairperson is absent.  If both are absent,
the members present may select one among them to act as temporary
chairperson.

     (2)  A quorum for the transaction of business by the
commission is 5.

     (3)  The vote of a majority of the members constitutes the
adoption or rejection of a motion or resolution before the
commission.  The chairperson is entitled to cast a vote as a
commissioner.

(F)  Meetings of Commission.  Meetings must be held at the call of
the chairperson[,] or the executive director, or
upon the written request of 3 commission members.

(G)     Commission Staff.

     (1)     The commission shall employ an executive
director or equivalent person or persons, and such other staff
members as the commission concludes are warranted, to perform the
duties that the commission directs, subject to the
availability of funds under its budget.

     (2)     The executive director or any other staff
person who is involved in the investigation or prosecution of a
judge 

          (a)     shall not be present during the
deliberations of the commission or participate in any other manner
in the decision to file formal charges or to recommend action by
the Supreme Court with regard to that judge, and

          (b)     shall have no ex parte communication
with the commission regarding a formal complaint that the
commission has authorized.

     (3)     Commission employees are exempt from the
operation of Const 1963, art 11, § 5, as are employees of courts of
record.         


Rule 9.203 Judicial Tenure Commission; Powers; Review

(A)  Authority of Commission.  The commission has all the powers
provided for under Const 1963, art 6, § 30, and further powers
provided by Supreme Court rule.  Proceedings before the commission
or a master are governed by these rules.  The commission may adopt
and publish administrative rules for its internal operation and the
administration of its proceedings that do not conflict with this
subchapter and shall submit them to the Supreme Court for
approval.

(B)  Review as an Appellate Court.  The commission may not function
as an appellate court to review the decision[s] of
[the] a court or to exercise superintending or
administrative control of [the] a
court[s],[ except as that review] but may examine
decisions [is] incident to a complaint of
judicial misconduct, disability, or other circumstance that the
commission may undertake to investigate under Const 1963, art 6, §
30, and MCR 9.207.  An erroneous decision by a judge made in
good faith and with due diligence is not judicial misconduct.

(C)  Control of Commission Action.  Proceedings under these rules
are subject to the direct and exclusive superintending control of
the Supreme Court.  No other court has jurisdiction to restrict,
control, or review the orders of the master or the [tenure]
commission.

(D)  Errors and Irregularities.  An investigation or
proceeding[s] under this chapter may not be held invalid by
reason of a nonprejudicial irregularity or for an error not
resulting in a miscarriage of justice.

(E)  Jurisdiction Over Visiting Judges.  Notwithstanding MCR
9.116(B), the Attorney Grievance Commission may take action
immediately [against] with regard to a visiting judge
who currently holds no other judicial office if the allegations
[of misconduct] pertain to professional or personal
activities unrelated to the [respondent's] judge's
activities as a judge.


Rule 9.204 Disqualification of Commission Member or Employee

(A)  Disqualification [F]from Participation.  A judge
who is a member of the commission or of the Supreme Court is
disqualified from participating in that capacity in proceedings
involving the judge's [his or her] own actions
[discipline, suspension, retirement, or removal].

(B)  Disqualification from Representation.  A member or employee of
the [Judicial Tenure] [C]commission may not
represent  

     (1)  a respondent in proceedings before the commission,
including preliminary discussions with employees of the commission
prior to the filing of a request for investigation; or

     (2)  a judge [or former judge] in proceedings before
the Attorney Grievance Commission, or the Attorney Discipline Board
and its hearing panels, as to any matter that was pending before
the Judicial Tenure Commission during the member's or employee's
tenure with the [Judicial Tenure]
[C]commission.


Rule 9.205 Standards of Judicial Conduct

(A)  Responsibility of Judge.  A judge is personally responsible
for the judge's [his or her] own behavior and for the
proper conduct and administration of the court in which the
judge [he or she] presides.

(B)  Grounds for Action [Discipline].  A judge is
subject to censure, suspension with or without pay,
retirement, or removal for conviction of a felony, physical or
mental disability that prevents the performance of judicial
duties, misconduct in office, persistent failure to perform
judicial duties, habitual intemperance, or conduct that is clearly
prejudicial to the administration of justice [as defined by
subrule (C) or because of disability as defined in subrule
(D).]

     (1[C])     Misconduct in office includes, but
is not limited to [A judge is guilty of misconduct in office
if]:

     [(1)]   [the judge is convicted in the United States
of conduct which is punishable as a felony under the laws of
Michigan or federal law;]

     [(2)]   [the judge persistently fails to perform
judicial duties;]

     [(3)]   [the judge is habitually intemperate within
the meaning of Const 1963, art 6, § 30];

     [(4)]   [the judge's conduct is clearly prejudicial
to the administration of justice;] 

     [(5)]   (a)     [the judge is]
persistent[ly] incompeten[t]ce or
neglect[ful] in the timely performance of judicial
duties;

     [(6)]   (b)     [the judge]
persistent[ly fails] failure to treat persons
fairly[, with] and courteously [and
respect]; [or]
                    
     [(7)]   (c)     [the judge]
treat[s]ment of a person unfairly[,] or
discourteously[, or disrespectfully] because of the person's
race, gender, or other protected personal characteristic;

          (d)     misuse of judicial office for personal
advantage or gain, or for the advantage or gain of another; and

          (e)     failure to cooperate with a reasonable
request made by the commission in its investigation of a judge.

     (2)     Conduct in violation of the Code of Judicial
Conduct or the Rules of Professional Conduct may constitute a
ground for action with regard to a judge.

[(D)]   [Disability.  A judge is subject to suspension,
retirement, or removal from office for physical or mental
disability which significantly interferes with the capacity to
perform his or her judicial duties.]

([E)   Code of Judicial Conduct; Rules of Professional
Responsibility.  Conduct in violation of the Code of Judicial
Conduct or rules of professional responsibility, whether the
conduct complained of occurred before or after the respondent
became a judge or was or was not connected with his or her judicial
office, may constitute misconduct in office, conduct that is
clearly prejudicial to the administration of justice, or another
ground for discipline listed in Const 1963, art 6, § 30.  The
question in every case is whether the conduct complained of
constitutes misconduct in office, conduct that is clearly
prejudicial to the administration of justice, or another ground of
discipline listed in Const 1963, art 6, § 30, not whether a
particular canon or disciplinary rule has been violated.  All the
circumstances are to be considered in deciding whether action by
the commission is warranted.]

     (3)    In deciding whether action with regard to a judge is
warranted, the commission shall consider all the circumstances, 
including the age of the allegations and the possibility of unfair
prejudice to the judge because of the staleness of the allegations
or unreasonable delay in pursuing the matter.


Rule 9.206 Service [and Notice]

(A)  [Service] Judge.  When provision is made under
these rules for serving notice of a complaint or other document on
a judge [or respondent], the notice must be made by service
in person or by registered or certified mail to the judge's
[his or her] judicial [business] office or last known
residence.  If an attorney has appeared for a judge
[respondent], notice may be served on the attorney in lieu
of service on the judge [respondent].

(B)  [Notice] Commission.  Service of notice on the
commission must be made by personal delivery
[delivering] or [mailing] by registered or certified
mail to the [commission's] executive director at the
commission's office.


Rule 9.207     [Preliminary] Investigation; Notice

(A)  Request[s] for Investigation. [Unless the commission
chooses to act on its own initiative or at the request of the Chief
Justice or the state court administrator, a] A request
for [action] investigation [by the commission]
of a judge must be made in writing and verified on oath of
the complainant. The commission may also act on its own
initiative or at the request of the Supreme Court, the state court
administrator, or the Attorney Grievance Commission.

(B)  [Preliminary] Investigation. Upon receiving a
request for investigation that is not clearly unfounded or
frivolous, the commission shall direct that an investigation be
conducted to determine whether a complaint should be filed and a
hearing held.  If there is insufficient cause to warrant filing a
complaint, the commission may:

     (1)     dismiss the matter,

     (2)     dismiss the matter with a letter of
explanation or caution that addresses the respondent's conduct,

     (3)     dismiss the matter contingent upon the
satisfaction of conditions imposed by the commission, which may
include a period of monitoring,

     (4)     admonish the respondent, or

   (5)     recommend to the Supreme Court private
censure, with a statement of reasons.

     If a request for investigation is filed less than 90 days
before an election in which the respondent is a candidate, and the
request is not dismissed forthwith as clearly unfounded or
frivolous, the commission shall postpone its investigation until
after the election unless two-thirds of the commission members
determine that the public interest and the interests of justice
require otherwise.

     [(1)   On receiving a verified statement, found on
examination and inquiry to be neither unfounded nor frivolous,
alleging facts indicating that a judge is guilty of misconduct in
office or suffers from physical or mental disability;
]
     [(2)   on receiving] [a request for investigation
from the Attorney Grievance Commission; or]

     [(3)   on request of the Chief Justice or the state court
administrator, the commission must conduct a preliminary
investigation to determine whether a complaint is to be filed and
a hearing held.  The commission may, on its own initiative and
without receiving a statement, make inquiry and a preliminary
investigation with respect to whether a judge is guilty of
misconduct in office or is physically or mentally
disabled]

(C)  Notice to Judge.  

     (1)     Request for investigation.  The commission
must promptly give written notice to the judge who is the subject
of a request for investigation unless the commission determines
that the request is clearly unfounded or frivolous,[] or
that the interests of justice require that notice be postponed. 
The purpose of the notice is to afford the judge an opportunity to
apprise the commission, in writing within 28 days, of such matters
as the judge may choose, including information about the factual
aspects of the allegations and other relevant comments.  The notice
shall specify the allegations and may include the date of the
conduct, the location where the conduct occurred, and the name of
the case or identification of the court proceeding relating to the
conduct.

     (2)    If the judge is not notified under subrule (C)(1),
the commission must provide such written notice
b[B]efore filing a complaint or taking action under
subrule (B)(2)-(5). [recommending an order of private
censure, the] [commission must give written notice to the
judge of the nature of the charges being made and afford]
The notice shall provide the judge an opportunity to present
in writing, within 28 days, any matters the judge chooses for
consideration by the commission.

     (3)     The commission shall hold a hearing if the
judge so requests in response to notice of the commission's
decision to proceed under subrules (B)(2)-(5).

     (4)     On final disposition of a request for
investigation without the filing of a complaint, the commission
shall give written notice of the disposition to the judge who was
the subject of the request.  The commission also shall provide
notice to the complainant that the matter has been resolved without
the filing of a complaint.

     (D)  [Resolution of Investigation.  If the preliminary
     examination does not disclose sufficient cause to warrant
     filing a complaint, the commission may:]

     [(1)   dismiss the investigation;]

     [(2)   admonish the respondent; or] 

     [(3)   recommend to the Supreme Court private censure, with
a statement of reasons in support of its recommendation.]

     [The commission must promptly notify the judge of its
decision to use one of these alternatives.]

[(E)]   [Admonition; Order of Private Censure.  An
admonition or order of private censure is confidential.  If the
judge requests a hearing on the recommendation of private censure,
the Supreme Court shall remand the case to the commission for a
hearing.
]
[(F)]   [Notice of Disposition of Grievance.  On final
disposition of a grievance, the commission shall give written
notice of the disposition to the complainant and may advise the
judge charged with misconduct or disability.

]([G]D)  Physical or Mental Examination.  In the course
of an investigation [of judicial misconduct or of mental or
physical disability of a judge], the commission may request the
judge to submit to a physical or mental examination.  Failure of
the judge to submit to the examination [is] may
constitute judicial misconduct.  MCR 2.311(B) is applicable to
the examination.


Rule [9.213] 9.208   Evidence
                                                  
(A)  Taking of Evidence During Preliminary [Inquiry]
Investigation.  Before filing a complaint, the commission may
take evidence before it or [before] an individual member of
the commission, or before the executive director or other
member of the [its] staff for purposes of the
[its] preliminary [inquiry] investigation.

(B)  Cooperation With Investigation.  A judge, clerk, court
employee, member of the bar, or other officer of [the]
a court must comply with a reasonable request made by the
commission [for aid] in its investigation [of a
judge].

(C)  Discovery.  

   (1)     Pretrial or discovery proceedings are not
permitted, except as follows:

          (a)     At least 21 days before a scheduled
hearing,

               (i)  the parties shall provide to one another, in
writing, the names and addresses of all persons whom they intend to
call at the hearing, and a copy of all statements and affidavits
given by those persons; and

               (ii)   the commission shall provide all
exculpatory material to the respondent.

                    [(1)   Within 14 days after the answer to the complaint is
               filed, the commission shall, on the respondent's
               written demand, make available for inspection or
               copying by the respondent documentary evidence in
               the commission's possession that is to be introduced
               as evidence at the hearing;] 

     [(2)]   [Within the same time, the commission shall
give the respondent written notification of the name and address of
any person to be called as a witness.]  

          (b)     The [commission] parties
shall give supplemental notice to [the respondent] one
another within 5 days after any additional witness has been
identified and at least 10 days before a scheduled
hearing[;].

     ([3]2)     A deposition may be taken of a witness
who is living outside the state or who is physically
unable to attend [the] a hearing[;].

     ([4]3)     The commission or the master
may order a prehearing conference [held  before the master]
to obtain admissions or otherwise narrow the issues presented by the
pleadings.

     If a [the commission] party fails to
comply with subrules (C)(1) or (2), the master may, on motion and
showing of material prejudice as a result of the failure, impose one
or more of the sanctions set forth in MCR 2.313(B)(2)(a)-(c).


Rule [9.208  Complaint] 9.209   Pleadings

     The complaint and answer are the only pleadings allowed.
(A)     Complaint.

     (1[A])     Filing; Service. [If, after the
preliminary investigation has been completed, the commission
concludes that a complaint will be filed, the case must be entered
in a docket to be kept for that purpose.  The complaint must be
filed in the commission's office, to become a public record, and a
copy must promptly be served on the respondent.] A complaint
may not be filed before the completion of a preliminary
investigation.  Upon concluding that there is sufficient evidence
to warrant the filing of a complaint, the commission shall direct
the executive director or equivalent staff members to do the
following:

          (a)     enter the complaint in the commission
docket, which is a public record;

          (b)     retain the complaint in the commission
office; and

          (c)     promptly serve a copy of the complaint
on the respondent. 

     ([B]2)     Form of Complaint.  A complaint must
be entitled:

     "Complaint Against ____________, Judge.  No.  ___________."

     A complaint must be in form similar to a complaint filed in a
civil action in the circuit court.


[Rule 9.209] (B)     Answer.

[(A)]   (1)     Filing.  Within 14 days after service
of the complaint, the respondent must file with the commission the
original and 9 copies of an answer verified by the respondent.  

     (2)    Form.  The answer must be in form similar to an
answer in a civil action in the circuit court, and must contain a
full and fair disclosure of all facts and circumstances pertaining
to the allegations regarding the respondent['s alleged
misconduct or physical or mental disability].  Wilful
concealment, misrepresentation, or failure to file an answer and
disclosure are additional grounds for disciplinary action under the
complaint.

  (3)   Affirmative defenses, including the defense of
laches, must be asserted in the answer or they will not be
considered.

[(B)   No Other Pleadings Allowed.  The complaint and answer are
the only pleadings.]


Rule 9.210     [Setting for] Notice of Public
Hearing; [and] Appointment of Master and
Examiners

(A)  Notice of Public Hearing. Upon [On] the
filing of a complaint, the commission must set a time and a
place of hearing before [it] the commission and
[give notice of the hearing to] notify the respondent
at least 21 days in advance [before the date set], or
[direct] request in writing that the Supreme Court appoint
a master to hold the hearing.  Such a request must be accompanied
by a copy of the complaint. [that the hearing be held before
a master to be appointed by the Supreme Court].

(B)  Appointment of Master.  

     (1)     If the commission requests that the Supreme
Court appoint a master to conduct the hearing, the [directs
that the hearing be held before a master to be appointed by the
Supreme Court, the commission must file an ex parte written request
to the Supreme Court to appoint a master for that purpose,
accompanied by a copy of the complaint. The Supreme] Court
shall do so [must,] within a reasonable period
[14 days after receipt of the request, appoint a master to
conduct the hearing]. The Court shall maintain a list of
qualified judges and former judges for this purpose.

     (2)     The master shall set a time and place for the
hearing and shall notify [give notice of the hearing
to] the respondent and [to] the examiner at least
2[1]8 days in advance [before the date
set].  The master shall rule on all motions and other procedural
matters incident to the complaint, answer, and hearing, except
that rulings on dispositive motions shall not be announced until the
conclusion of the hearing [subject to review by the
commission after the filing of the master's report].

(C)  Appointment of Examiners.  The executive director shall act as
the examiner in [every] a case in which a formal
complaint is filed, [except] unless [that] the
commission [may] appoints another attorney
[additional associate examiners in individual cases] to
act as examiner.


Rule 9.211     Public Hearing

(A)  Procedure. [At the time and place set for hearing, the
commission or the master shall proceed with a] The public
hearing[, which] must conform as nearly as possible to the
rules of procedure and evidence governing the trial of civil actions
in the circuit court.  The hearing must be held whether or not the
respondent has filed an answer or appears at the hearing.  The
examiner shall present the evidence in support of the charges set
forth in the complaint, and at all times shall have the burden
of proving the allegations by a preponderance of the evidence. 
A respondent is entitled to be represented by an attorney.  Any
employee, officer or agent of the [judge's]
respondent's court, law enforcement officer, public officer
or employee, or attorney who testifies as a witness in the hearing,
whether called by the examiner or by the judge, is subject to
cross-examination by either party as an opposite party under MCL
600.2161[; MSA 27A.2161].

(B)  Failure to Appear.  The respondent's failure to answer or to
appear at the hearing may not, standing alone, be taken as evidence
of the truth of the facts alleged to constitute grounds for
commission action.  The respondent's failure to answer, to testify
in his or her own behalf, or to submit to a medical examination
requested by the commission or the master, may be considered
as an evidentiary fact, unless it appears that the failure was due
to circumstances unrelated to the facts in issue at the hearing.

(C)  Record.  The proceedings at the hearing must be recorded by
stenographic or mechanical means [a voice recorder or by
a stenographer designated by the commission or master].

(D)  Rulings.  When the hearing is before the commission, at least
5 members must be present while the hearing is in active progress. 
Procedural and other interlocutory rulings must be made by the
chairperson, and are taken as consented to by the other members of
the commission unless a member calls for a vote, [and then]
in which event a ruling must be made by a majority vote of
those present.


Rule 9.212     [Issuance, Service, and Return of] Subpoenas

     [At the request of the commission, the master, the examiner,
the respondent, or the respondent's attorney, subpoenas for the
attendance of witnesses and the production of documents before the
commission or master may be issued out of the circuit court in the
county in which the hearing is to be held, in like manner and with
like effect as in civil proceedings.  Before the filing of a
complaint, the entitlement of the case may not disclose the name of
the judge under investigation.]

(A)     Issuance of Subpoenas

     (1)     Before the filing of a complaint, the
commission may issue subpoenas for the attendance of witnesses to
provide statements or produce documents or other tangible evidence
exclusively for consideration by the commission and its staff during
the preliminary investigation. Before the filing of a complaint, the
entitlement appearing on the subpoena shall not disclose the name
of a judge under investigation.

     (2)     After the filing of a complaint, the
commission may issue subpoenas either to secure evidence for testing
before the hearing or for the attendance of witnesses and the
production of documents or other tangible evidence at the
hearing.

(B) Sanctions for Contempt; Disobedience by
Respondent.

     (1)     Contempt proceedings against a nonparty for
failure to obey a subpoena issued pursuant to this rule may be
brought pursuant to MCR 2.506(E) in the circuit court for the county
in which the individual resides, where the individual is found,
where the contempt occurred, or where the hearing is to be held.

     (2)     If a respondent disobeys a subpoena or other
lawful order of the commission or the master, whether before or
during the hearing, the commission or the master may order such
sanctions as are just, including, but not limited to, those set
forth in MCR 2.313(B)(2)(a)-(e).


Rule 9.21[4]3   Amendments to Complaint or Answer

     The master, before the conclusion of the hearing, or the
commission, before its determination, may allow or require
amendments to the complaint or answer.  The complaint may be amended
to conform to the proofs or to set forth additional facts, whether
occurring before or after the commencement of the hearing.  If an
amendment is made, the respondent must be given reasonable time to
answer the amendment and to prepare and present [his or her]
a defense against the matters charged in the amendment.


Rule 9.21[5]4   Report of Master

     Within 2[8]1 days after [the] a
transcript of the proceedings is provided, [conclusion of the
hearing before a master,] the master shall prepare and transmit
to the commission in duplicate a report [which must]
that contains a brief statement of the proceedings and
findings of fact and conclusions of law with respect to the issues
presented by the complaint and answer.  The report must be
accompanied by two copies of the transcript of the proceedings
before the master.  On receiving the report and transcript, the
commission must promptly send a copy of each to the respondent.


Rule 9.21[6]5 Objections to Report of Master

     Within [14] 28 days after a copy of the master's
report and transcript is mailed to the respondent, the examiner or
the respondent may file with the commission an original and 9 copies
of a statement of objections to the report of the master, along with
a supporting brief.  A copy of a statement and brief must be served
on the opposite party, who shall have 14 days to respond.


Rule 9.21[7]6   Appearance Before Commission

     When the master files the report, the commission shall
[must] set a date for hearing objections to the report.  The
respondent and the examiner must file written briefs at least 7 days
before the hearing date. The briefs must include a discussion of
possible sanctions.  Both may present oral argument at the
hearing.


Rule 9.21[8]7  Extension of Time

     The commission or its chairperson may extend for periods not
to exceed 28 days the time for filing an answer, for the
commencement of a hearing before the commission, for the filing of
the master's report, and for filing a statement of objections to the
report of a master.  A master may similarly extend the time for the
commencement of a hearing [before him or her].


Rule 9.21[9]8   Hearing Additional Evidence

     The commission may order a hearing, before itself or the
master, for the taking of additional evidence at any time while the
complaint is pending before it.  The order must set the time and
place of hearing and indicate the matters about which evidence is
to be taken.  A copy of the order must be sent to the respondent at
least 14 days before the hearing.


Rule 9.2[20]19  Interim Suspension

(A)  Petition.  

     (1)     After a complaint is filed, t[T]he
commission may petition the Supreme Court for an order suspending
a judge from acting as a judge until final adjudication of
the [a] complaint.

     (2)     In extraordinary circumstances, the
commission may petition the Supreme Court for an order suspending
a judge from acting as a judge in response to a request for
investigation, pending a decision by the commission regarding the
filing of a complaint.

     Whenever a petition for interim suspension is granted, the
processing of the case shall be expedited in the commission and the
Supreme Court.

(B)  Contents; Affidavit or Transcript.  The petition must
[allege facts supported] be accompanied by a
sworn affidavit or court transcript, and state facts in support
of the allegations and the assertion [indicating that the
judge is guilty of misconduct in office as defined in MCR 9.205(C)
or (E) or suffers from physical or mental disability as defined in
MCR 9.205(D) and] that immediate suspension is necessary for the
proper administration of justice.

(C)  Service; Answer.  A copy of the petition and supporting
documents must be served on the respondent who may file an answer
to the petition within 14 days after service of the petition.  The
commission must be served with a copy of the answer.


Rule 9.22[1]0   Commission Decision

(A)  Majority Decision.  

     (1)    The affirmative vote of 5 commission members who
have considered the report of the master and any
objections, and who were present at an oral hearing provided
for in MCR 9.216[7,] or[,] have read the
transcript of that hearing [if the hearing was before the
commission without a master, the affirmative vote of 5 commission
members who were present when the evidence was taken,] is
required for a recommendation of [discipline, removal,
retirement, or suspension of] action with regard to a
judge. 

     (2)     If the hearing was held without a master, the
affirmative vote of 5 commission members who were present when the
evidence was taken is required for such a recommendation. 
[Absent 5 votes, the commission must enter an order of dismissal
of the complaint.]  A commissioner may file a written dissent.

     (3)     It is not necessary that a majority agree on
the specific conduct that warrants a recommendation of action with
regard to a judge, or on the specific action that is warranted, only
that there was some conduct that warrants such a recommendation.

(B)  Record of Decision.  

     (1)     The commission must make written findings of
fact and conclusions of law along with its recommendations for
action with respect to the issues of fact and law in the
proceedings, but may adopt the findings of the master, in whole or
in part, by reference.

     (2)     The commission shall undertake to ensure that
the action it is recommending in individual cases is reasonably
proportionate to the conduct of the respondent, and reasonably
equivalent to the action that has been taken previously in
equivalent cases.

(C)  [Discipline] Action With Respondent's
Consent.  With the [respondent's] consent of the
respondent and the commission, the Supreme Court may impose
a sanction or take other action [enter an order of
discipline, suspension, retirement, or removal] at any stage of
the proceedings under these rules.


Rule 9.22[2]1   Confidentiality; Disclosure
[and Privilege of Proceedings]

(A)  Before Complaint.  Before a complaint is filed, a member of the
commission or its staff may not disclose the existence or contents
of the investigation, testimony taken, or papers filed in it, but
the commission may at any time make public statements as to matters
pending before it, only on its determination by a majority vote that
it is in the public interest to do so, limited to the fact
that[:]

     (1)  there is an investigation pending, or

     (2)  the investigation is complete and [that] there is
insufficient evidence for the commission to file a complaint.

(B)  After Filing of Complaint.  After the complaint is filed, the
proceedings are available for public inspection and must be
conducted in open public hearings.

(C)  Consent of Judge.  On the written consent of [the] a
judge [against whom a grievance has been filed or] who is
being investigated, the commission may disclose matters relating to
[it] the investigation, notwithstanding the
prohibitions against disclosure set forth in this rule.

(D)  Disclosure to State Court Administrator.

     (1)  The commission may refer to the state court administrator
[grievances] requests for investigation and other
communications received by the commission concerning the conduct of
a judge if, [which] in the opinion of the commission,
the communications are properly within the scope of the
duties of the [court] administrator[,].  The
commission [and] may provide the [court]
administrator with files, records, investigations, and reports of
the commission relating to the matter.  Such a referral
[to the court administrator] does not preclude action by the
commission [where] if the judge's conduct is of such
a nature as to constitute grounds for action by the commission, or
[which] cannot be adequately resolved or corrected by action
of the [court] administrator.

     (2)  The commission may disclose to the [state court]
administrator, upon [his or her] request, the
substance of files and records of the commission concerning a former
judge who has been or may be assigned judicial duties by the
[state court] administrator; a copy of the information
disclosed must be furnished to the judge.

(E)  Disclosure to Attorney Grievance Commission.  Notwithstanding
the prohibition against disclosure in this rule, the commission
shall disclose information concerning allegations regarding a
judge [misconduct] to the Attorney Grievance Commission,
upon request.  Absent a request, the commission may make such
disclosure to the Attorney Grievance Commission. In the event of
a dispute concerning the release of information, the Attorney
Grievance Commission may petition the Supreme Court for an order of
disclosure, and the Judicial Tenure Commission may file a
response.


Rule 9.222   Record Retention                      

     The commission shall develop a record-retention policy,
which shall include a description of the materials that are to be
stored, a list of the time for which specific materials must be
maintained, and procedures for the disposal of records.


Rule 9.223     Certification to Supreme Court

(A)  Filing and Service of Documents by Commission.  Within 21 days
after entering an order recommending [the discipline, removal,
retirement, or suspension of] action with regard to a
respondent, the commission must

     (1)  file in the Supreme Court:

          (a)  the original record arranged in chronological order
and indexed and certified;

          (b)  24 copies of the order;

          (c)  24 copies of an appendix; and
                                                       
          (d)  a proof of service on the respondent;

     (2)  serve the respondent with:
                  
          (a)  notice of the filing under MCR 9.223(A)(1);

          (b)  2 copies of the order and appendix;

          (c)  2 copies of the index to the original record; and

          (d)  a copy of a portion of the original record not
submitted by or previously furnished to the respondent.

(B)  Contents of Appendix.  The appendix must include, in
chronological order:[,]

     (1)  an index;

     (2)  all pleadings, including those filed with a master;

     (3)  all orders, including those issued by a master;

     (4)  all reports, findings of fact, and conclusions of law made
by the commission or a master; and

     (5)  other material necessary to fairly judge the issues.

The appendix need not be printed.


Rule 9.224     Review by Supreme Court

(A)  Petition by Respondent.  Within 28 days after being served, a
respondent may file in the Supreme Court 24 copies of

     (1)  a petition to reject or modify the commission's
recommendation[;], which [the petition] must:

          (a)  be based on the record,

          (b)  specify the grounds relied on,

          (c)  be verified, and

          (d)  include a brief in support; and

     (2)  an appendix presenting portions of the record not included
in the commission's appendix [which] that the
respondent believes necessary to fairly judge the issues.  The
appendix need not be printed.

     The respondent must serve the commission with 3 copies of the
petition and 2 copies of the appendix and file proof of that
service.

(B)  Brief of Commission.  Within 21 days after respondent's
petition is served, the commission must file

     (1)  24 copies of a brief supporting its finding, and

     (2)  proof that the respondent was served with 2 copies of the
brief.

(C)  Review in Absence of Petition by Respondent.  If the respondent
does not file a petition, the Supreme Court [shall]
will review the commission's recommendation on the record
filed.  The Supreme Court may order that briefs be filed or
arguments be presented.

(D)  Form of Briefs.  A brief filed under this subrule is to be
similar to a brief in an appeal to the Supreme Court, except that
a brief may be typewritten.

(E)  Additional Evidence.  The Supreme Court may, if cause is shown,
order that further evidence be taken and added to the original
record.

(F)  Submission.  The clerk will place the case on a session
calendar under MCR 7.312.  Oral argument may be requested.


Rule 9.225     Decision by Supreme Court

     The Supreme Court shall review the record of the proceedings
and [shall] 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 [direct censure, removal, retirement,
suspension, or other disciplinary action, or reject or modify the
recommendations of the commission]. When appropriate, the
Court may remand the matter to the commission for further
proceedings, findings, or explication.  If the respondent and the
commission have consented to a course of action under subrule
9.220(C) and the Court determines to impose a greater, lesser, or
entirely different sanction, the respondent shall be afforded the
opportunity to withdraw the consent and the matter shall be remanded
to the commission for further proceedings.


Rule 9.226     Motion for Rehearing

     Unless the Supreme Court directs otherwise, the
[The] respondent may file a motion for rehearing within 14
days after the filing of the decision. [However, ]If
the Supreme Court directs in the decision that a motion for
rehearing may not be filed, the decision is final on filing.


Rule 9.227     Immunity

     A person is absolutely immune from suit for statements and
communications transmitted solely to the [Judicial Tenure
C]commission or [the commission staff] its
employees, or given in an investigation or proceeding on
[alleged misconduct] allegations regarding a judge,
and no civil action predicated upon the statements or communications
may be instituted against a complainant, a witness, or their
counsel.  Members of the [Judicial Tenure C]commission
and their [counsel and staff] employees, masters, and
examiners are absolutely immune from suit for all conduct in the
course of their official duties.


Rule 9.228  Ethics Materials and Programs

     The commission shall work with other groups and
organizations, including the State Bar of Michigan, to develop
educational materials and programs that are designed to help judges
maintain an awareness and understanding of their ethical
obligations.
                                                  

  Staff Comment:  The proposed amendment of subchapter 9.200
of the Michigan Court Rules is a response to recommendations from
numerous individuals, associations, and the Judicial Tenure
Commission concerning Michigan's judicial discipline system.  The
proposal encapsulates in formal rules several unwritten practices
of the commission that separate the investigative and prosecutorial
functions of its staff from the commission's decision-making
function.  Other proposed rules strengthen due process rights by
providing respondent judges with earlier and fuller notice, and
sharpen the commission's investigative tools.


The staff comment is published only for the benefit of the bench and
bar and is not an authoritative construction by the Court.  
          _____________________________________________


     A copy of this order will be given to the secretary of the
State Bar and to the State Court Administrator so that they can make
the notifications specified in MCR 1.201.  Comments on this proposal
may be sent to the Supreme Court clerk in writing or electronically
by May 1, 2002.  P.O. Box 30052, Lansing, MI 48909, or
MSC_clerk@jud.state.mi.us.  When filing a comment, please refer to
file 99-31.