in Re Hon Elizabeth Biolette Church , 499 Mich. 936 ( 2016 )

Order Michigan Supreme Court
Lansing, Michigan
May 25, 2016 Robert P. Young, Jr.,
Chief Justice
Stephen J. Markman
Brian K. Zahra
152830 Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
Joan L. Larsen,
In re: Justices
HON. ELIZABETH BIOLETTE CHURCH, SC: 152830
CHIPPEWA COUNTY PROBATE and RFI Nos. 2014-021034;
DISTRICT COURT 2014-021209
BEFORE THE JUDICIAL TENURE COMMISSION
___________________________________________/
The Judicial Tenure Commission has issued a Decision and Recommendation, to
which the respondent, Hon. Elizabeth Biolette Church, Chippewa County Probate and
District Court Judge, consents. It is accompanied by a settlement agreement, in which
the respondent waived her rights and consented to a sanction no greater than a public
censure and a 120-day suspension without pay.
In resolving this matter, we are mindful of the standards set forth in In re Brown,
461 Mich. 1291, 1292-1293 (2000):
Everything else being equal:
(1) misconduct that is part of a pattern or practice is more serious than an
isolated instance of misconduct;
(2) misconduct on the bench is usually more serious than the same
misconduct off the bench;
(3) misconduct that is prejudicial to the actual administration of justice is
more serious than misconduct that is prejudicial only to the appearance of
propriety;
(4) misconduct that does not implicate the actual administration of justice,
or its appearance of impropriety, is less serious than misconduct that does;
(5) misconduct that occurs spontaneously is less serious than misconduct
that is premeditated or deliberated;
(6) misconduct that undermines the ability of the justice system to discover
the truth of what occurred in a legal controversy, or to reach the most just
result in such a case, is more serious than misconduct that merely delays
such discovery;
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(7) misconduct that involves the unequal application of justice on the basis
of such considerations as race, color, ethnic background, gender, or religion
are more serious than breaches of justice that do not disparage the integrity
of the system on the basis of a class of citizenship.
In the present case, those standards are being applied in the context of the
following stipulated findings of fact of the Judicial Tenure Commission, which,
following our de novo review, we adopt as our own:
1. The respondent is, and at all material times was, a judge of the
Chippewa County Probate and District Court in Sault Ste. Marie, Michigan.
2. As a judge, she is subject to all the duties and responsibilities
imposed on judges by this Court, and is subject to the standards for
discipline set forth in MCR 9.104 and MCR 9.205.
3. Over the course of the last several years, respondent reduced
charges, dismissed charges outright, or modified sentences in at least 20
criminal cases, without holding a hearing and where she had no explicit
authority from the prosecutor to do so. Those 91st District Court cases are:
People v Tenecyck (Case No. 13-55757-ST); People v Stebleton (Case No.
13-7804-SI); People v Debolt (Case No. 13-8954-ST); People v Reiswitz
(Case No. 13-8812-SI); People v Hough (Case No. 13-56209-SM); People
v Swiger (Case No. 13-7402-SI); People v Payment (Case No. 14-10642-
01); People v Brand (Case No. 13-9214-SI); People v Parr (Case No. 13-
6874-SI); People v Wiezbenski (Case No. 13-7024-SI); People v Captain
(Case No. 12-6474-SI); People v Gagnon (Case No. 11-53224-SM); People
v Gunckel (Case No. 14-57103-SM); People v Morningstar (Case No. 14-
11943-SM); People v Keesler (Case No. 14-57118-ST); People v Mellea
(Case No. 14-57254-SM); People v Manos (Case No. 14-11974-SI); People
v Hatfield (Case No. 14-12032-SI); People v Dicks (Case No. 14-12080-
SJ); and People v Homminga (Case No. 14-587515-SD).
4. Over the course of the last several years, respondent dismissed at
least 32 ticket cases without holding a hearing and where she had no
explicit authority from the prosecutor to do so. Those 91st District Court
cases are: People v Smith Family Sanitation (Case No. 12-4859-SI);
People v Beland (Case No. 12-4891-SI); People v Huyck (Case No. 12-
4889-ST); People v Greene (Case No. 12-4978-SI); People v Heikkinen
(Case Nos. 12-4916-OI, 12-4917-OI, and 12-4918-OI); People v Mitchell
(Case No. 12-5089-OI); People v Karakas (Case No. 12-51 04-SI); People
v Bagwan, (Case No. 12-5452-SI); People v Eggart (Case Nos. 12-5651-SI
& 12-5652-SI); People v Rogers (Case No. 12-5690-SI); People v Fox
Excavating (Case No. 12-5714-SI); People v McLeod (Case No. 12-5786-
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SI); People v Reynoso (Case No. 12-5795-SI); People v Nietling (Case No.
12-5800-SI); People v Heather Goudge (Case No. 12-5855-SI); People v
Bertram (Case No. 12-5914-SI); People v Schuster (Case No. 12-5919-SI);
People v Hiatt (Case No. 12-5926-SI); People v Mongene (Case No. 12-
6015-SI); People v Akers (Case No. 12-6090-SI); People v Parr (Case No.
12-6117-SI); People v Cardiff (Case No. 12-6221-01); People v McEwen
(Case No. 12-6250-SI); People v Miller (Case No. 12-6349-SI); People v
Johnston (Case No. 12-6411-SI); People v Bosley (Case No. 12-6439-SI);
People v Saluja (Case No. 12-6443-OI); People v Morley (Case No. 12-
6446-OI); People v Schwiderson (Case No. 12-6492-SI); People v Poth
(Case No. 12-6653-OI); People v Dumback (Case No. 12-6597-SI); and
People v Shuman (Case No. 13-7084-SM).
5. In the matters referred to above, respondent engaged in ex parte
communications by considering substantive matters relevant to the merits
of the pending proceedings, without the knowledge or consent of the
prosecuting attorney.
6. Respondent also engaged in ex parte contacts as follows:
(a) People v Betlam (50th Circuit Case No. 13-001221-FC)
i. This matter was before respondent on January 16, 2014 for
a bench trial.
ii. Before the trial started, respondent, accompanied by
defense counsel Jennifer France, went to the holding cell where Mr.
Betlam was being held by the Chippewa County Sheriff’s
Department.
iii. Respondent met there with Mr. Betlam, in the presence of
Ms. France, but without the knowledge of the prosecuting attorney.
iv. Respondent never told the prosecutor of her ex parte
meeting with the defendant, Mr. Betlam, nor did she ever make a
record of the event.
(b) People v Ferraro
i. Respondent was assigned to preside over People v Ferraro,
91st District Case Nos.:
(1) 15-58203-SM (filed on or around April 27, 2015,
charging the defendant with domestic violence, contrary to
MCL 750.812) and
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(2) 15-58285-SM (filed on or around May 28, 2015,
charging defendant with domestic violence, 2nd offense,
contrary to MCL 750.812, and 4th-degree child abuse,
contrary to MCL 750.136b[7]).
ii. On April 28, 2015, respondent disqualified herself on her
own motion in Case No. 15-58203-SM, and on June 3, 2015 she did
so in Case No. 15-58285-SM, indicating in both matters that she
believed that her continued assignment would create an appearance
of impropriety.
iii. Respondent added the following on the disqualification
order in Case No. 15-58203-SM: “DEFENDANT IS THE SON OF
BLDG MAINTENANCE MAN WHO IS PART OF ONGOING
JTC INVESTIGATION.” [sic]
iv. The State Court Administrative Office (SCAO) assigned
Judge Beth Gibson of the 92nd District Court to preside over Case
No. 15-58203-SM on May 1, 2015 and over Case No. 15-58285-SM
on June 8, 2015.
v. On June 12, 2015, Mr. Ferraro pleaded guilty to one charge
of domestic violence (Case No. 15-58203-SM) and one charge of
domestic violence-second offense (Case No. 15-58285-SM); the
child abuse charge was dismissed without prejudice.
vi. In Case No. 15-58203-SM, Judge Gibson sentenced Mr.
Ferraro to 93 days in jail, with 17 days credit and the remaining 76
days suspended. Judge Gibson also imposed $500 in fines and costs
and placed Mr. Ferraro on 12 months of probation.
vii. In Case No. 15-58285-SM, Judge Gibson placed Mr.
Ferraro on 24 months of probation and imposed $750 in fines and
costs.
viii. In both cases, Judge Gibson continued a no-contact order
against Mr. Ferraro regarding the victim.
ix. On July 8, 2015, charges were filed against the same Mr.
Ferraro in Case No. 15-58414-FY, alleging that he had used a
computer to commit a crime, contrary to MCL 752.796 and
752.797(3)(d), as well as aggravated stalking, contrary to MCL
750.411i, and malicious use of telecommunications services,
contrary to MCL 750.540e.
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x. The charges against Mr. Ferraro in Case No. 15-58414-FY
were filed while he was still on probation in Case Nos. 15-58203-
SM and 15-58285-SM.
xi. Respondent disqualified herself on her own motion from
Case No. 15-58414-FY on July 8, 2015, indicating that she believed
that her continued assignment would create an appearance of
impropriety.
xii. Respondent added the following on the disqualification
order in Case No. 15-58414-FY: “Defendant has had two very
recent cases that Judge Church has recused on as well.” [sic] The
two cases referred to were Case Nos. 15-58203-SM and 15-58285-
SM.
xiii. SCAO assigned Judge Beth Gibson of the 92nd District
Court to preside over Case No. 15-58414-FY on July 9, 2015.
xiv. Respondent sent two texts to Judge Gibson regarding
Case No. 15-58414-FY.
xv. On July 7, 2015, at 5:15 p.m., respondent texted Judge
Gibson:
“I am group texting both Judge Gibson in [sic] John Feroni I
have been contacted by MSP regarding Carmen Ferraro they
will be submitting report to the Circuit C [sic]ourt [sic] to the
prosecutor and to you John for probation violation. Acid [sic]
a report be sent all three and I told him that Judge Gibson will
hear the matter
“It was trooper Bitnar”
xvi. On July 16, 2015, at 4:52 p.m., respondent texted Judge
Gibson:
“I could really use that boy on community service so hurry
and send the Ferraro kid”
7. In People v Martinez (91st District Case No. 14-57336-EX),
respondent declined to appoint a translator for the defendant when she
should have.
The standards set forth in Brown are also being applied to the Judicial Tenure
Commission legal conclusions to which the respondent stipulated and which we adopt as
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our own. The Commission concludes, and we agree, that the respondent’s conduct
constitutes:
(a) Misconduct in office, as defined by the Michigan Constitution of
1963, as amended, Article 6, Section 30 and MCR 9.205;
(b) Conduct clearly prejudicial to the administration of justice, as
defined by the Michigan Constitution of 1963, as amended, Article 6,
Section 30, and MCR 9.205(B);
(c) Conduct involving impropriety and the appearance of
impropriety, in violation of the Code of Judicial Conduct, Canon 2A;
(d) Failure to be faithful to the law and maintain professional
competence in it, contrary to Code of Judicial Conduct Canon 3A(1);
(e) Participation in ex parte communications, and consideration of
them outside the presence of all parties concerning pending or impending
proceedings, in violation of Code of Judicial Conduct Canon 3A(4); and
(f) A failure to adopt the usual and accepted methods of doing
justice, in violation of Code of Judicial Conduct Canon 3A(9).
After review of the Judicial Tenure Commission’s decision and recommendation,
the settlement agreement, the standards set forth in Brown, and the above findings and
conclusions, we ORDER that the Honorable Elizabeth Biolette Church be publicly
censured and suspended without pay for 120 days. Were we to apply the Brown factors
in the first instance, we may have reached an alternate result. However, in light of
respondent’s disclosed serious and debilitating medical condition, in addition to her
acceptance of responsibility, the unique circumstances of this case warrant our deference
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to the Judicial Tenure Commission’s recommended sanction. During the period of
suspension, Judge Church shall not enter any courthouse in Chippewa County or initiate
communication with the staff of any courthouse in Chippewa County unless she has a
personal matter pending in any of those courts and then only to the extent that any other
member of the public would have access to the court or the court staff. This order stands
as our public censure.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
May 25, 2016
s0518
Clerk