MSC 161839 IN RE HON. BRUCE U. MORROW Opinion - Leave Granted - Partial 1/13/2022

In re MORROW
Docket No. 161839. Argued October 6, 2021 (Calendar No. 4). Decided January 13, 2022.
The Judicial Tenure Commission (JTC) filed a formal three-count complaint against Third
Circuit Court Judge Bruce U. Morrow, arising from comments he made to two female prosecutors
during a murder trial. The Michigan Supreme Court appointed retired Judge Betty R. Widgeon as
master, and she issued a scheduling order providing for a virtual hearing. The master found that
in Counts I and II respondent had violated Canons 2(B), 3(A)(3), and 3(A)(14) of the Code of
Judicial Conduct, and in Count III, the master found that respondent had violated Canons 3(A)(3)
and 3(A)(14). The JTC issued a decision and recommendation for discipline on June 14, 2021, in
which it largely agreed with the master’s findings of fact and conclusions of law but found that
respondent had also violated Canon 2(B) by his conduct in Count III. The JTC found that
respondent had committed misconduct in office by violating MCR 9.202(B)(1)(c) (defining
“misconduct in office” to include “persistent failure to treat persons fairly and courteously”) and
MCR 9.202(B)(1)(d) (defining “misconduct in office” to include “treatment of a person unfairly
or discourteously because of the person’s . . . gender”). After determining that the majority of the
factors set forth in In re Brown, 461 Mich 1291 (2000), weighed in favor of a more serious
sanction, the JTC unanimously recommended that respondent be sanctioned with a public censure
and a 12-month suspension without pay. Respondent petitioned the Supreme Court, requesting
that the Court reject or modify the JTC’s recommendation.
In a per curiam opinion joined by Chief Justice M C C ORMACK and Justices V IVIANO ,
BERNSTEIN, C LEMENT, C AVANAGH , and W ELCH, the Supreme Court held:
The JTC correctly found that respondent committed misconduct in office and that public
censure and suspension were appropriate. However, a 6-month rather than the JTC’s
recommended 12-month suspension was proportionate.
1. The allegations in the formal complaint, which respondent generally did not dispute,
were established by a preponderance of the evidence, and the JTC’s conclusions of law were
correct. By using unnecessarily crass and sexual language, respondent did not “promote public
confidence in the integrity and impartiality of the judiciary,” Canon 2(B), nor was he “patient,
dignified, and courteous” to the attorneys, Canon 3(A)(3), nor did he treat them “fairly, with
courtesy and respect” without regard to their gender, Canon 3(A)(14). As to Count III, by guessing
Michigan Supreme Court
Lansing, Michigan
Syllabus Chief Justice:
Bridget M. McCormack
Justices:
Brian K. Zahra
David F. Viviano
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh
Elizabeth M. Welch
This syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
Reporter of Decisions:
Kathryn L. Loomis

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the attorneys’ heights and weights unbidden while eyeing them, not only did respondent fail to be
“patient, dignified and courteous” and to “treat every person fairly, with courtesy and respect” in
violation of Canons 3(A)(3) and 3(A)(14), but he also violated Canon 2(B), which also requires
that “[a] judge treat every person fairly, with courtesy and respect” without regard to their gender.
Respondent committed misconduct in office by violating MCR 9.202(B)(1)(c) and MCR
9.202(B)(1)(d). Respondent’s reliance on In re Hocking, 451 Mich 1 (1996) was misplaced: the
Hocking Court did not hold that judges were entirely immune from discipline for comments said
from the bench, and the concern expressed in Hocking that judges would be found to have
committed judicial misconduct every time they committed an appealable error of law was not at
issue here.
2. The judicial disciplinary system did not violate respondent’s rights under the Due
Process Clause by the JTC’s serving both a prosecutorial and an adjudicative role. Respondent
argued to the contrary by primarily relying on Williams v Pennsylvania, 579 US 1 (2016), in which
a justice on the Pennsylvania Supreme Court participated in a postconviction proceeding involving
a case in which he had previously, in his supervisory role as district attorney, approved the decision
to seek the death penalty. The Williams Court held that the justice’s failure to recuse himself from
the case violated the Due Process Clause. Respondent contends that because Michigan caselaw
on this subject relies primarily on Withrow v Larkin, 421 US 35 (1975), which preceded Williams,
it is no longer good law. However, Williams did not overrule Withrow, and Withrow supports the
conclusion that, generally, an administrative body sharing investigative and adjudicatory roles is
not a due-process violation. This was the case for the JTC, particularly given that the Michigan
Supreme Court instituted some degree of separation between the JTC’s investigatory and
prosecutorial functions versus its adjudicatory functions by requiring the appointment of a master.
While Withrow observed that some special facts and circumstances could render the risk of
unfairness in such a system intolerably high, no such facts or circumstances were apparent in this
case. Furthermore, Withrow was the more applicable precedent because Williams involved a
postconviction proceeding in a criminal case, whereas Withrow involved a professional
administrative scheme such as the one at issue in this case. Even if the differences between the
JTC scheme and the criminal case in Williams were of no import, there would still have been no
due-process violation in this matter. While Williams held that there was an impermissible risk of
actual bias when a judge earlier had significant, personal involvement as a prosecutor in a critical
decision regarding the defendant’s case, respondent did not raise a similar contention regarding
the personal involvement of any particular member of the JTC in his case; he only generally
asserted that the JTC could not play a hybrid role in the judicial disciplinary process. Though the
JTC does play an adjudicatory role, that role is minimized, given that it is the Michigan Supreme
Court that provides a final adjudication and sanctions judges.
3. The Michigan Supreme Court gives considerable deference to the JTC’s
recommendations regarding sanctions; however, that deference is premised on the JTC’s
adequately articulating the bases for its findings and demonstrating that there is a reasonable
relationship between such findings and the recommended discipline. To ensure that equivalent
cases are treated in an equivalent manner and unequivalent cases are treated in a proportionate
manner, the Court considers the seven Brown factors: (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

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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; and (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. Because respondent’s comments did not implicate the
unequal application of justice to the defendant in the case being tried, the seventh factor did not
support a more severe sanction, but otherwise, the JTC correctly assessed the other Brown factors
and properly determined that additional factors supported a more severe sanction. Rather than the
JTC’s recommendation of a 12-month suspension, a 6-month suspension was appropriate given
the severity of respondent’s conduct relative to that in other judicial discipline cases such as In re
Iddings, 500 Mich 1026 (2017).
Justice V IVIANO, concurring, agreed in full with the majority opinion but would have held
that the master violated MCR 9.231(B) by not conducting respondent’s hearing in person at a
physical location. He reasoned that the court rule, which requires the master to “set a time and a
place for the hearing,” refers to a physical location, given that no dictionary defines “place” to
include a virtual meeting space, that the rule was adopted at a time when telecommunications
technology was not used to conduct hearings remotely, and that the Michigan Supreme Court’s
adoption of court-rule amendments expressly allowing for remote proceedings in the JTC under
certain conditions implies that such proceedings would not otherwise have been permissible.
However, because this error did not result in a miscarriage of justice, he would have concluded
that the proceedings below were valid under MCR 9.211(D). He agreed that respondent committed
judicial misconduct and that an appropriate sanction was a six-month suspension without pay and
a public censure for the reasons stated in the majority opinion.
Justice BERNSTEIN, concurring, wrote separately only to indicate his continuing concerns
relating to equity and accessibility regarding the use of videoconferencing in these situations. He
noted that the circumstances of this case were unique, having taken place during a global pandemic
before any vaccinations had been developed and made widely available to the general public. He
expressed hope that in the future, given the efficacy and prevalence of vaccinations against
COVID-19, an individual’s preference for in-person proceedings would be honored to the extent
that such proceedings could take place safely.
Justice ZAHRA , concurring in part and dissenting in part, agreed that respondent committed
judicial misconduct and that his challenges to the proceedings were without merit. However, he
strongly disagreed that a lesser six-month suspension was appropriate given respondent’s history
of judicial misconduct, his lack of remorse, and the absence of any assurance that respondent
would conform to the rules of judicial conduct. To avoid the possibility that respondent would
make a mockery of the Supreme Court and its judicial disciplinary proceedings in his remaining
time in office, Justice ZAHRA would have imposed a sanction that would permanently put

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respondent’s judicial career to an end rather than allow him an additional six months of
compensation and prestige of office.
JTC findings affirmed; six-month suspension without pay imposed.

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FILED January 13, 2022
S T A T E O F M I C H I G A N
SUPREME COURT
In re BRUCE U. MORROW, Judge
3rd Circuit Court.
No. 161839
BEFORE THE ENTIRE BENCH
PER CURIAM.
This case comes to the Court on the recommendation of the Judicial Tenure
Commission (JTC) that respondent, Judge Bruce U. Morrow, be suspended for 12 months
without pay. Respondent has filed a petition challenging the form of the proceedings and
requesting that this Court reject or modify the JTC’s recommendation. We are
unpersuaded by respondent’s challenges to the proceedings, and we agree with the JTC’s
conclusion that respondent has committed judicial misconduct. However, we hold that a
lesser suspension is appropriate and impose a six-month suspension without pay as well as
a public censure.
Michigan Supreme Court
Lansing, Michigan
OPINION Chief Justice:
Bridget M. M cCormack
Justices:
Brian K. Zahra
David F. Viviano
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh
Elizabeth M. Welch

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2
I. FACTS
The JTC filed a formal complaint against respondent in August 2020. That
complaint contained three counts of misconduct, all relating to respondent’s comments to
two women prosecutors during a murder trial the year before. Counts I and II alleged that
respondent had used unnecessarily crass and sexual language while discussing the trial and
providing feedback to the prosecutors. Count III alleged that he had a discussion with the
prosecutors wherein he guessed their heights and weights, unbidden, while eyeing them.1
1 Specifically, Count I alleged that during a break in the proceedings, one of the prosecutors
asked respondent for feedback on her direct examination of the medical examiner.
Respondent left the bench to sit close to her and analogized the direct examination to
foreplay and sexual intercourse, with the “climax” being when the medical examiner would
state the cause and manner of death. Count II alleged that while the jury was deliberating
and respondent, the prosecuting attorneys, and the defendant’s attorney were in chambers,
respondent expressed disagreement with the prosecutor’s choice to present evidence that
the defendant’s DNA was on the decedent’s vaginal swab. Respondent exclaimed words
to the effect of, “All it shows is that they fucked!” Respondent and the attorneys also
discussed the defendant’s testimony at trial; the defendant had said that he and the decedent
had had “not normal sex” because the decedent was pregnant and they did not want to hurt
the baby. Respondent and the attorneys proceeded to discuss what that might mean. The
prosecutor posited that it meant something other than intercourse, while respondent
contended that it meant “doggy style” intercourse. Respondent said that the prosecutor’s
erroneous interpretation of the defendant’s testimony was due to her own bias and
inexperience. When discussing the defendant’s testimony that he had been concerned
about having intercourse with the decedent because he did not want her to have a
miscarriage, respondent remarked with words to the effect of, “Does he think his dick is so
big that he would hurt that baby?” Respondent also criticized the prosecutor’s voir dire by
analogizing it to inquiring whether someone is willing to have intercourse on a first date.
Count III alleged that when the jury was excused respondent asked one of the prosecutors
how tall she was and guessed how much she weighed. The other prosecutor volunteered
her height, and respondent attempted to guess her weight. When the prosecutor responded
that he was wrong, respondent replied, “Well, I haven’t assessed your muscle mass yet.”

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3
On September 17, 2020, the Court appointed retired Judge Betty R. Widgeon as
master. She issued a scheduling order providing for a virtual hearing.2 The master found
that in Counts I and II respondent had violated Canons 2(B), 3(A)(3), and 3(A)(14) of the
Code of Judicial Conduct; in Count III, the master found that respondent had violated
Canons 3(A)(3) and 3(A)(14). Canon 2(B) provides, in relevant part:
A judge should respect and observe the law. At all times, the conduct
and manner of a judge should promote public confidence in the integrity and
impartiality of the judiciary. Without regard to a person’s . . . gender, . . . a
judge should treat every person fairly, with courtesy and respect.
Canon 3(A)(3) requires that a judge “be patient, dignified, and courteous
to . . . lawyers . . . .” And Canon 3(A)(14) states, in relevant part: “Without regard to a
person’s . . . gender, . . . a judge should treat every person fairly, with courtesy and
respect.”
The JTC issued its decision and recommendation for discipline on June 14, 2021.
It largely agreed with the master’s findings of fact and conclusions of law, but found that
respondent had also violated Canon 2(B) by his conduct in Count III. The JTC found that
respondent had committed misconduct in office by violating MCR 9.202(B)(1)(c)
(defining “misconduct in office” to include “persistent failure to treat persons fairly and
courteously”) and MCR 9.202(B)(1)(d) (defining “misconduct in office” to include
2 Respondent then filed a complaint for superintending control and a motion to expedite
proceedings, contending that the judicial disciplinary process violated his due-process
rights because the JTC serves both a prosecutorial and an adjudicative function. This Court
denied relief. Morrow v Judicial Tenure Comm, 506 Mich 948 (2020). Respondent then
filed a motion requesting that the proceedings be held in person rather than virtually. The
master denied that motion, and respondent consequently filed a second complaint for
superintending control. This Court again denied relief. Morrow v Judicial Tenure Comm,
506 Mich 954 (2020).

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4
“treatment of a person unfairly or discourteously because of the person’s . . . gender”).
After determining that the majority of the factors set forth in In re Brown, 461 Mich 1291,
1292-1293; 625 NW2d 744 (2000), weighed in favor of a more serious sanction, the JTC
unanimously recommended that respondent be sanctioned with a public censure and a 12-
month suspension without pay.
II. ANALYSIS
A. STANDARD OF REVIEW
Though the JTC makes recommendations in judicial tenure cases, this Court alone
ultimately has the authority to sanction judicial officers. Const 1963, art 6, § 30.
Consequently, we review the JTC’s findings and recommendation de novo. In re Servaas,
484 Mich 634, 642; 774 NW2d 46 (2009). The allegations must be supported by a
preponderance of the evidence. Id.
B. FACTUAL FINDINGS AND CONCLUSIONS OF LAW
We agree with the master and the JTC that the allegations in the formal complaint
have been established by a preponderance of the evidence. Indeed, respondent generally
does not dispute the substance of the allegations. We also agree with the JTC’s conclusions
of law. By his unnecessarily crass and sexual language, respondent did not “promote
public confidence in the integrity and impartiality of the judiciary,” Canon 2(B), nor was
he “patient, dignified, and courteous” to the attorneys, Canon 3(A)(3), nor did he treat them
“fairly, with courtesy and respect” without regard to their gender, Canon 3(A)(14). As to
Count III, we agree with the JTC that by guessing the attorneys’ heights and weights
unbidden while eyeing them, not only did respondent fail to be “patient, dignified and

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5
courteous” and to “treat every person fairly, with courtesy and respect” in violation of
Canons 3(A)(3) and 3(A)(14), but he also violated Canon 2(B), which also requires that
“[a] judge treat every person fairly, with courtesy and respect” “[w]ithout regard to a
person’s . . . gender . . . .” Respondent committed misconduct in office by violating MCR
9.202(B)(1)(c) and MCR 9.202(B)(1)(d).
Respondent contends that he did not commit misconduct because in In re Hocking,
451 Mich 1; 546 NW2d 234 (1996), this Court held that inappropriate comments said from
the bench during sentencing did not constitute misconduct. In Hocking, the respondent
explained the downward departure sentence he wished to impose on the defendant by
offering offensive and misogynistic reasons as to why he believed the defendant’s conduct
did not merit a within-guidelines sentence. Id. at 10-11. The respondent also had a very
heated exchange with the prosecutor at that same sentencing hearing. Id. at 7-9. And in
another exchange, in a different case, the respondent challenged an attorney to explain why
a motion was not frivolous, and then sanctioned her without letting her provide an
explanation. Id. at 21-22.
Respondent’s reliance on Hocking is misplaced. First, in Hocking this Court never
stated that judges were entirely immune from discipline for comments said from the bench.
Id. at 12 (“Whether relief on appeal is warranted or not, it does not follow that a judicial
officer is immune from discipline for the manner in which the decision is articulated.”); id.
at 13 (“A judge’s comments are not immune from censure simply because they are based
on facts adduced at trial or events occurring at trial.”). Second, given the facts in Hocking,
specifically the comments at sentencing, the Court was understandably wary that judges
should be found to have committed judicial misconduct every time they commit an

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6
appealable error of law. See id. at 11 (“[G]enerally, a judge is not subject to discipline for
‘appealable errors of law or abuses of discretion[.]’ ”), quoting In re King, 409 Mass 590,
601; 568 NE2d 588 (1991). That concern is not present in the instant case because
respondent’s comments are not an appealable error of law. Therefore, we are unmoved by
respondent’s argument and affirm the JTC’s finding that respondent committed
misconduct.
C. DUE PROCESS
We now turn to respondent’s argument that our judicial disciplinary system violates
his rights under the Due Process Clause because the JTC plays both a prosecutorial and an
adjudicative role. The Due Process Clause of the United States Constitution provides that
“[n]o State shall . . . deprive any person of life, liberty, or property, without due process of
law . . . .” US Const, Am XIV, § 1. Respondent rests his argument primarily on Williams
v Pennsylvania, 579 US 1; 136 S Ct 1899; 195 L Ed 2d 132 (2016). In that case, a justice
on the Pennsylvania Supreme Court participated in a postconviction proceeding involving
a case in which he had previously, in his supervisory role as district attorney, approved the
decision to seek the death penalty. Id. at ___; 136 S Ct at 1903-1905. The United States
Supreme Court held that “under the Due Process Clause there is an impermissible risk of
actual bias when a judge earlier had significant, personal involvement as a prosecutor in a
critical decision regarding the defendant’s case.” Id. at ___; 136 S Ct at 1905. Applying
that standard, the Court held that the justice’s failure to recuse himself from the case
violated the Due Process Clause. Id. at ___; 136 S Ct at 1907. Furthermore, though the
justice’s vote was not decisive, the Court held “that an unconstitutional failure to recuse

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7
constitutes structural error even if the judge in question did not cast a deciding vote”
because the justice might have influenced his colleagues. Id. at ___; 136 S Ct at 1909.
Our Court has addressed due-process challenges to our judicial disciplinary scheme
multiple times in the past, and each time, we have upheld the system, including the JTC’s
role, as constitutional. See In re Mikesell, 396 Mich 517; 243 NW2d 86 (1976); In re Del
Rio, 400 Mich 665; 256 NW2d 727 (1977); In re Chrzanowski, 465 Mich 468; 636 NW2d
758 (2001). Respondent contends that our prior caselaw is outdated though because it
relied primarily on Withrow v Larkin, 421 US 35; 95 S Ct 1456; 43 L Ed 2d 712 (1975), a
similar United States Supreme Court case regarding due process that preceded Williams.
Respondent contends that under the newer precedent of Williams, our Court must hold that
our judicial disciplinary system violates the Due Process Clause.
We disagree. It is true that our past cases looked to Withrow in determining the
constitutionality of our judicial disciplinary system. See Mikesell, 396 Mich at 530,
quoting State Bar Grievance Administrator v Baun, 395 Mich 28, 35; 232 NW2d 621
(1975); Del Rio, 400 Mich at 691; Chrzanowski, 465 Mich at 486. That is less than
surprising, given that our cases predated Williams. However, Withrow is still good law.
Williams did not overrule it. And Withrow still strongly supports the constitutionality of
our judicial discipline scheme. As the Withrow Court asserted:
The contention that the combination of investigative and adjudicative
functions necessarily creates an unconstitutional risk of bias in administrative
adjudication has a much more difficult burden of persuasion to carry. It must
overcome a presumption of honesty and integrity in those serving as
adjudicators; and it must convince that, under a realistic appraisal of
psychological tendencies and human weakness, conferring investigative and
adjudicative powers on the same individuals poses such a risk of actual bias

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8
or prejudgment that the practice must be forbidden if the guarantee of due
process is to be adequately implemented. [Withrow, 421 US at 47.]
The Court further explained that both federal and state caselaw “ ‘generally reject[] the
idea that the combination [of] judging [and] investigating functions is a denial of due
process . . . .’ ” Id. at 52, quoting 2 Davis, Administrative Law Treatise (1958), § 13.02,
p 175 (alterations in Withrow). Specifically, past United States Supreme Court cases,
though recognizing the potential problem of combining investigative and adjudicatory
roles, “offer no support for the bald proposition . . . that agency members who participate
in an investigation are disqualified from adjudicating.” Id.
In short, Withrow supports the conclusion that generally an administrative body
sharing investigative and adjudicatory roles is not a due-process violation. We still believe
that to be the case for the JTC. Our Court has instituted some degree of separation between
the JTC’s investigatory and prosecutorial functions versus its adjudicatory functions by
requiring the appointment of a master. Del Rio, 400 Mich at 691. See also MCR 9.231.
While Withrow remarked that there could be such “special facts and circumstances
present . . . that the risk of unfairness is intolerably high” in a particular matter, Withrow,
421 US at 58, we do not see such special facts or circumstances in this case. See Mikesell,
396 Mich at 530, quoting Baun, 395 Mich at 35.
We believe Withrow, rather than Williams, is the more applicable precedent because
the system at issue in Withrow is more analogous to the JTC. Whereas Williams involved
a postconviction proceeding in a criminal case, Williams, 579 US at ___; 136 S Ct at 1903,
Withrow involved a professional administrative scheme, namely the Wisconsin Medical

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Examining Board. Withrow, 421 US at 37. As a body that regulates the conduct of licensed
professionals, the JTC is clearly more akin to the latter.
Even if the differences between the JTC scheme and the criminal case in Williams
were of no import, we would still find no due-process violation here. While Williams held
that there was “an impermissible risk of actual bias when a judge earlier had significant,
personal involvement as a prosecutor in a critical decision regarding the defendant’s case,”
Williams, 579 US at ___; 136 S Ct at 1905, respondent does not raise a similar contention
regarding the personal involvement of any particular member of the JTC in his case. He
only generally asserts that the entire JTC cannot play a hybrid role in the judicial
disciplinary process. Though the JTC does play an adjudicatory role, that role is,
importantly, minimized. We reiterate that it is not the JTC that provides a final adjudication
and sanctions judges; that responsibility belongs only to our Court. Const 1963, art 6, § 30;
Del Rio, 400 Mich at 689; MCR 2.951 and 2.952. Therefore, we do not believe that
respondent’s general allegations about the JTC’s dual roles are enough to “overcome a
presumption of honesty and integrity in those serving as adjudicators,” Withrow, 421 US
at 47, particularly when it is our Court that truly serves as the final adjudicator.
For these reasons, we reaffirm the holdings of our past opinions and hold, once
again, that our judicial disciplinary system, specifically the JTC’s role, does not violate the
Due Process Clause.3
3 Respondent also contends that by holding a virtual hearing, the master violated MCR
9.231(B), which states, in relevant part, “The master shall set a time and a place for the
hearing . . . .” At the time of the hearing, Administrative Order No. 2020-19 was in place.
Our Court had issued that order to provide guidance as to how best to proceed in light of
the COVID-19 pandemic. That order encouraged courts to “continue to expand the use of

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D. PROPORTIONALITY OF RECOMMENDED SANCTION
The JTC recommends that this Court suspend respondent for 12 months without
pay. Though this Court does give “considerable deference” to the JTC’s recommendations
regarding sanctions, that deference “is a function of the JTC adequately articulating the
bases for its findings and demonstrating that there is a reasonable relationship between
such findings and the recommended discipline.” Brown, 461 Mich at 1292. Our Court
aims to “respond[] to equivalent cases in an equivalent manner and to unequivalent cases
in a proportionate manner.” Id.
To that end, in Brown we set forth seven factors that guide sanction decisions in
Michigan:
[E]verything 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;
remote participation technology (video or telephone) as much as possible to reduce any
backlog and to dispose of new cases efficiently and safely.” AO 2020-19, 505 Mich xcviii,
xcix (2020). Even assuming, without deciding, that the court rule was violated, we are not
convinced that such a violation would entitle respondent to a new hearing held in person,
particularly when respondent largely admitted to the allegations against him and was able
to thoroughly examine and cross-examine witnesses during the hearing. MCR 9.211(D)
(“An investigation or proceeding under this subchapter may not be held invalid by reason
of a nonprejudicial irregularity or for an error not resulting in a miscarriage of justice.”).

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11
(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;
(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. [Id. at 1292-
1293.]
The JTC reasoned that all the factors except for the third and sixth weighed in favor
of a more severe sanction.4 We generally agree with that analysis. However, we also
believe that the seventh factor—whether the misconduct involves the unequal application
4 As to the first factor, the JTC reasoned that there was a pattern or practice of misconduct
because, in 2004, the State Court Administrative Office had sent respondent a letter
warning him not to have personal conversations with coworkers and to refrain from
hugging them. That conduct resulted in an admonishment from the JTC in 2005. There
was also evidence that respondent made inappropriate remarks to female prosecutors in
2018 and 2019.
Respondent contends that the JTC should not have considered uncharged conduct.
But the JTC is obliged to consider prior discipline when making its recommendation. MCR
9.244(B)(1) (“The commission’s report must include a list of all respondent’s prior
disciplinary actions under MCR 9.223(A)(2)-(5) or MCR 9.224 and must include an
acknowledgement that the commission has included its consideration of any prior
discipline in the commission’s recommended action.”). And we have upheld the
consideration of evidence that a respondent judge had received admonitions and censures.
See, e.g., In re Moore, 464 Mich 98, 117 & n 16; 626 NW2d 374 (2001).
Respondent cites In re Simpson, 500 Mich 533; 902 NW2d 383 (2017), to argue
otherwise, but Simpson involved uncharged misconduct that never formed the basis for any
disciplinary action. Thus, to the extent the JTC in this case considered other formal
discipline, the JTC acted appropriately. We need not determine whether the JTC erred by
considering other uncharged misconduct that did not form the basis for official discipline
because even if such conduct is excluded, we would conclude that a six-month suspension
is appropriate.

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of justice—does not weigh in favor of a more severe sanction. We do not disagree with
the JTC that respondent treated the prosecutors differently because of their gender.
However, just as the JTC reasoned that respondent’s conduct was not prejudicial to the
actual administration of justice under the third factor, because respondent’s comments did
not implicate the unequal application of justice to the defendant in the case being tried, we
do not believe the seventh factor supports a more severe sanction. Nevertheless, outside
of that disagreement, we agree with the JTC’s assessment of the other Brown factors, as
well as its reasoning that additional factors (namely, respondent’s conduct in response to
the disciplinary proceedings, the effect of his conduct on the public’s respect for the
judiciary, and his years of experience) support a more severe sanction.
Despite our general agreement with the JTC’s assessment of the Brown factors, we
believe that rather than the JTC’s recommendation of a 12-month suspension, a 6-month
suspension is appropriate given the severity of respondent’s conduct relative to that in other
judicial discipline cases.5 For comparison, in In re Iddings, 500 Mich 1026; 897 NW2d
169 (2017), the respondent sexually harassed his secretary for approximately three years.
5 Though the partial dissent characterizes this Court’s imposition of a 6-month rather than
12-month suspension as “reduc[ing]” the sanction imposed, post at 4, we are not reducing
any sanction. The JTC only recommends a sanction, which our Court may accept or reject;
but the JTC did not previously impose a suspension of any length. Moreover, while we
would impose a 12-month suspension if we believed that to be proportionate to
respondent’s misconduct, we take issue with the partial dissent’s advocating a 12-month
suspension as, effectively, a removal from office. See post at 1 (saying that a one-year
suspension would “effectively remove[] respondent from the bench for the balance of his
judicial career”); post at 4 (“The Court’s sanction should permanently put to an end
respondent’s judicial career.”). If removal from office were an appropriate sanction that
the Court wished to impose, we should clearly impose that sanction rather than trying to
accomplish the same aim by way of a purported temporary suspension.

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13
Id. at 1027. He was censured and suspended for six months, and the JTC also imposed
disciplinary provisions consisting of mandatory counseling. Id. at 1030. While
respondent’s behavior is certainly unacceptable, we do not believe his inappropriate
comments over the course of one trial merit twice the suspension imposed for years of
sexual harassment.6 Indeed, respondent’s conduct would generally merit a considerably
lesser sanction if considered alone; however, this is not the first disciplinary proceeding in
which respondent has been the subject. See In re Morrow, 496 Mich 291, 308; 854 NW2d
89 (2014) (imposing a 60-day suspension on respondent for various misconduct in relation
to several cases). Additionally, the respondent in Iddings had self-reported to the JTC
(albeit after an Equal Employment Opportunity Commission investigation), was
remorseful, and cooperated with the investigation. Iddings, 500 Mich at 1029. Those
factors are not present in the instant case. Respondent did not self-report to the JTC, he
has not acknowledged the highly inappropriate nature of his conduct, and he has not
expressed remorse. Taking into account the severity of the behavior at issue as well as
these other factors, we believe that public censure and a six-month suspension is an
appropriate sanction.7
6 Whereas the partial dissent fails to contend with Iddings, we believe it is important to
compare the gravity of the specific misconduct in the instant case with that in past cases.
Iddings involved misconduct similar to that at issue here, and accordingly it should be a
guidepost in our sanction determination.
7 We are unpersuaded by respondent’s argument that his misconduct is not so bad as that
in In re Gorcyca, 500 Mich 588; 902 NW2d 828 (2017), in which we ordered only public
censure. Id. at 631. The respondent in that case had an excellent past record, and though
she made comments to children involved in a divorce proceeding that were inappropriate,
that she lost her temper was somewhat understandable given the lengthy and contentious
nature of that proceeding and the lack of cooperation among the participants. Id. at 595-

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14
III. CONCLUSION
For these reasons, we agree with the JTC that respondent committed misconduct in
office and that public censure and suspension are appropriate. However, we believe a 6-
month rather than a 12-month suspension is proportionate. Therefore, we modify the JTC’s
recommendation and order that the Honorable Bruce U. Morrow, Judge of the 3rd Circuit
Court, be suspended without pay for six months, effective 21 days from the issuance of this
opinion.
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh
Elizabeth M. Welch
596, 598 (recounting that there were 100 pleadings and 40 hearings held in the case and
that the children had refused to participate in parenting time with their father). Those
factors are not present in the instant case. Rather, we believe respondent’s comments and
past record merit a greater sanction.

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S T A T E O F M I C H I G A N
SUPREME COURT
In re BRUCE U. MORROW, Judge
3rd Circuit Court.
No. 161839
V IVIANO , J. (concurring).
I concur in full with the majority opinion, including its findings of misconduct and
the sanction it imposes on respondent. I write separately to explain why I believe it was
error for the master to conduct respondent’s proceeding remotely rather than in person,
even though this error does not render the proceedings below invalid.
I. FACTS AND PROCEDURAL HISTORY
After the Judicial Tenure Commission (JTC) filed its formal complaint, we
appointed retired Judge Betty R. Widgeon as master. On September 28, 2020, the master
issued a scheduling order that stated, in relevant part:
1. The hearing will be held virtually, via the ZOOM and live-streamed
on YouTube.
2. The following dates are scheduled for the hearing: November 13,
23, 24, 2020, and December 7, and 15, 2020. Counsel will confer to agree
to a daily starting time between 9:00 and 9:30 am and a daily ending time
between 4:30 and 5:00 pm with a daily lunch break.
Respondent filed a motion to hold the hearing in person, arguing that MCR 9.231(B)
required the master to set a physical location for his hearing. He also argued that the master
should protect his confrontation rights because the record in the JTC matter could be
admitted in a future attorney-discipline proceeding against him. The master denied

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respondent’s motion in an order issued October 21, 2020. The master did not construe
MCR 9.231(B) as requiring an in-person hearing. The master was also unpersuaded that
the possibility of future attorney-discipline proceedings, in which the record from the JTC
proceedings might be admitted, required her to hold an in-person hearing. Respondent
filed a complaint for superintending control, requesting that the Court direct the master to
set a time and place for an in-person hearing. This Court denied relief. Morrow v Judicial
Tenure Comm, 506 Mich 954 (2020). After this Court denied respondent’s request for
superintending control, proceedings continued below, and hearings were held virtually in
November and December 2020, as scheduled.
In his objections to the master’s report, respondent maintained his argument that the
virtual hearings the master held did not comply with MCR 9.231(B). The JTC concluded
in its decision and recommendation that the master had the discretion to choose whether to
hold the hearing by remote video and that the master properly exercised her discretion to
proceed via remote hearing in this case. Respondent challenged that conclusion in his
petition to reject or modify the JTC’s recommendation. Respondent contends that the
remote proceedings before the JTC are invalid because the court rules, specifically MCR
9.231(B), required the master to designate a physical place for his hearing. He also argues
that he was harmed by the lack of an in-person hearing.
II. ANALYSIS
A. PROPER INTERPRETATION OF MCR 9.231(B)
When we interpret a provision of the court rules, the same principles that govern the
interpretation of statutes apply. People v Comer, 500 Mich 278, 287; 901 NW2d 553
(2017). Thus, we begin with the court rule’s plain language, examining the court rule as a

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3
whole and reading individual words and phrases in the context of the entire scheme of the
relevant court rules. Id. When the court rule’s language is unambiguous, we must enforce
it as written. Id. If a word is undefined, it is proper to consult a dictionary to aid in the
proper interpretation of the court rule. People v Duncan, 494 Mich 713, 723; 835 NW2d
399 (2013). Finally, MCR 9.200 provides the following instructions for how the court
rules governing the JTC are to be interpreted:
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 in that system, and to
protect the public, the courts, and the rights of the judges who are governed
by these rules in the most expeditious manner that is practicable and fair.
At issue is MCR 9.231(B), which establishes a number of duties assigned to the
master, one of which is that “[t]he master shall set a time and a place for the hearing and
shall notify the respondent and the examiner at least 28 days in advance.” The word
“place,” respondent contends, refers to a physical location.
Our court rules do not define the word “place,” and this Court has never interpreted
the word as it is used in MCR 9.231(B). Although MCR 9.231 was adopted in 2019 as
part of a broader update and modernization of the court rules governing judicial
disciplinary proceedings, the relevant phrase—“shall set a time and a place for the
hearing”—has remained essentially unchanged since GCR 1963, 932 initially established
court rules governing the JTC in 1969.1 Based on the context in which it appears, “place”
1 GCR 1963, 932.10(a) stated, in relevant part, “Upon the filing of an answer or upon
expiration of the time for its filing, the commission shall set a time and place of hearing
before itself or before a master and shall give notice of such hearing to the respondent . . . .”
381 Mich xc (1969) (emphasis added). When the Michigan Court Rules were revised in
1985, MCR 9.210(B) required that the master, rather than the JTC, “set a time and place

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4
is relevantly defined as “a building or locality used for a special purpose <a ~ of
amusement>[.]” Webster’s New Collegiate Dictionary (1973).2 This definition is apt
because the rule requires the master to select a location to be used for a particular purpose,
i.e., “for the hearing.” That the rule is referring to a physical location seems obvious on its
face (even more so in light of the history discussed below), but that conclusion is obvious
even before we leave the dictionary—I could not locate a single definition of “place” in
any dictionary that includes as one of its many meanings (or examples) a virtual meeting
space.
for the hearing . . . .” This provision was moved to MCR 9.210(B)(2) and changed to “set
a time and a place for the hearing” in our rewrite of the JTC rules in 2003. 467 Mich clii
(2003) (emphasis added). The provision was moved to MCR 9.231(B) in 2019 but
otherwise remained the same. 503 Mich cclxi (2019).
2 See also Lexico, Place <https://www.lexico.com/en/definition/place> (accessed January
6, 2022) [https://perma.cc/H6FP-N8GC] (“A building or area used for a specified purpose
or activity.”); Dictionary.com, Place, def 17 <https://www.dictionary.com/browse/place>
(accessed January 6, 2022) [https://perma.cc/4YB9-WGRD] (“[A] building, space,
location, etc., set apart or used for a specific purpose: A nightclub is a place of
entertainment. You are encouraged to dress modestly in places of worship.”). The JTC
believes a different definition of “place” supports its view, one that defines the term as
“space in general: time and place.” Dictionary.com, Place, def 2
<https://www.dictionary.com/browse/place> (accessed January 6, 2022)
[https://perma.cc/4YB9-WGRD]. But, other than the superficial appeal of having an
example with language similar to the term’s usage in MCR 9.231(B), that definition has no
application here. For one thing, by its use of “a place,” the court rule obviously refers to a
particular meeting place. This would be true even if I were to agree with the JTC that the
meeting place could be virtual—it would make no sense to identify as a “place for the
hearing” any “space in general” on the Internet, regardless of its uniform resource locator
(URL), Internet protocol (IP) address, or website domain. Either way, this definition is at
such a level of generality as to be meaningless here—which is proven by any attempt to
plug the definition into the rule (i.e., “[t]he master shall set a time and [space in general]
for the hearing”).

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5
The historical context of the rule supports this conclusion. At the time GCR 1963,
932.10 was adopted, the relevant sense of “place” would have been a physical location,
since the judiciary in Michigan was not using telecommunications technology for hearings
at that time. See DeFoor & Sechen, Telephone Hearings in Florida, 38 U Miami L Rev
593, 597-598 (1984) (discussing the history of telephone hearings in courts); Poulin,
Criminal Justice and Videoconferencing Technology: The Remote Defendant, 78 Tulane L
Rev 1089, 1094-1095 & n 8 (2004) (discussing the history of videoconferencing in courts);
Clark, Symposium: The Use of Video in the Courtroom, 1975 BYU L Rev 327, 328-329
(1975) (explaining that the federal judiciary did not start experimenting with video
technology until 1970). Indeed, in the analogous context of general litigation, courthouses
have historically served as important public spaces that convey a sense of community
identity, legal authority, legitimacy, and decorum. Resnik & Curtis, Representing Justice:
Invention, Controversy, and Rights in City-States and Democratic Courtrooms (New
Haven: Yale University Press, 2011), pp 135-136, 303, 339, 342-344.3 Some of the same
considerations apply in the present context. Like trials and other court processes, the
master’s hearing is public. MCR 9.233. Additionally, JTC disciplinary actions involve
allegations of misconduct by judicial officers and, consequently, are serious matters in this
3 Even those currently advocating for more robust use of technology acknowledge the
“everyday impression of a court” as “very much a place,” meaning a “physical courtroom.”
Susskind, Online Courts and the Future of Justice (Oxford University Press, 2019), p 57.
The author notes that members of the legal profession, “emotionally and
psychologically, . . . often find it hard to imagine serious judicial work being carried out
anywhere other than in a physical courtroom.” Id.

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6
state’s civic life. Thus, the meaning conveyed by the term “place” at the time of its
adoption was that the parties would be directed to go to a physical location for the hearing.
Providing further support for this interpretation (if any is needed) is the fact that, on
two occasions, this Court has taken affirmative steps to expressly allow for remote
proceedings in the JTC. The first such change occurred when the Court rewrote the JTC
court rules in 2019. We added a provision to MCR 9.210 expressly allowing for meetings
by telephone or teleconference if no public hearing is scheduled to be held: “Regular
meetings at which no public hearing is scheduled may be held in person, by telephone, or
by teleconference, provided that the telephone or teleconference method is a secure
connection.” MCR 9.210(F)(4). Under the canon of expressio unius est exclusio alterius,
“[t]he expression of one thing implies the exclusion of others . . . .” Scalia & Garner,
Reading Law: The Interpretation of Legal Texts (St. Paul: Thomson/West, 2012), p 107.
The implication from MCR 9.210(F)(4) is that JTC meetings at which a public hearing is
scheduled may not be held by telephone or teleconference. Although this court rule is not
applicable to the hearing at issue in this case, it shows that we have acknowledged the
JTC’s general lack of authority to hold remote proceedings by expressly allowing remote
proceedings under certain conditions. Yet a public hearing before a master is not among
the JTC proceedings that we indicated may be held remotely.
The second change was made in response to the COVID-19 pandemic. The Court
amended MCR 9.221(C) to allow a subpoena issued under MCR 9.221 to “require a party
or witness to appear by telephone, by two-way interactive video technology, or by other

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7
remote participation tools.” MSC Administrative Order, 507 Mich ___ (July 26, 2021).4
But if remote hearings had been authorized by MCR 9.200 et seq. before this amendment,
the JTC would have already possessed the authority to require a witness to appear via a
remote participation tool.5
I would interpret MCR 9.231(B) as requiring the master to set a physical location
for respondent’s hearing. I believe the master erred by issuing the scheduling order
providing for a virtual hearing and by denying respondent’s motion to hold his hearing in
person.
B. EFFECT OF NONCOMPLIANCE WITH THE COURT RULES ON THE
VALIDITY OF THE PROCEEDINGS
Noncompliance with MCR 9.231(B) does not automatically render the proceedings
invalid. MCR 9.211(D), which addresses errors and irregularities in JTC proceedings,
states, “An investigation or proceeding under this subchapter may not be held invalid by
reason of a nonprejudicial irregularity or for an error not resulting in a miscarriage of
justice.” MCR 9.211(D) functions similarly to our criminal harmless-error statute, MCL
4 These amendments were made after respondent’s hearing occurred.
5 The changes to MCR 9.221(C) relate only to subpoenas; no changes were made to MCR
9.231(B) or MCR 9.210(F)(4). Thus, even under the current rules, a master is still required
to set a place for a hearing. For similar reasons, the JTC’s reliance on Administrative Order
No. 2020-19, which this Court issued in response to the COVID-19 pandemic, is
misplaced. The only effect that administrative order had on JTC proceedings was to allow
a subpoena to require a party or witness to appear remotely. The administrative order
required courts to continue using remote participation technology as much as possible, but
the JTC is not a court; therefore, the administrative order did not allow the master to appear
remotely, nor did it allow the master to require respondent to appear remotely to observe
the testimony of other witnesses.

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8
769.26, except in the judicial discipline context. See 6 Longhofer, Michigan Court Rules
Practice, Text (7th ed), § 9211.3, p 774.
Although the remote nature of the hearing meant that the master, respondent, and
respondent’s attorneys were unable to observe the body language of witnesses or verify
that witnesses were not referring to materials or other individuals in the room for guidance,
respondent has not demonstrated any miscarriage of justice that resulted from his hearing
being held remotely. He was not deprived of the ability to put on a defense, and he was
able to—and in fact did—examine and cross-examine witnesses. See MCR 9.233(A)
(“The public hearing must conform as nearly as possible to the rules of procedure and
evidence governing the trial of civil actions in the circuit court.”). Most significantly,
nearly all the pertinent facts in this case were undisputed. Under these circumstances,
holding respondent’s hearing remotely did not result in a miscarriage of justice.
III. CONCLUSION
For these reasons, I would hold that the master violated MCR 9.231(B) by not
conducting respondent’s hearing in person at a physical location. But because this error
did not result in a miscarriage of justice, I would also hold that the proceedings below were
valid. MCR 9.211(D). Finally, for the reasons stated in the Court’s opinion, I agree with
the JTC’s conclusion that respondent committed judicial misconduct and that an
appropriate sanction is a six-month suspension without pay and a public censure.
David F. Viviano

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S T A T E O F M I C H I G A N
SUPREME COURT
In re BRUCE U. MORROW, Judge
3rd Circuit Court.
No. 161839
BERNSTEIN , J. (concurring).
I write separately only to indicate my continuing concern about the use of
videoconferencing in these situations going forward. The circumstances of this case are
unique, as the proceedings took place during a global pandemic; importantly, the
proceedings took place before any vaccinations had been developed and made widely
available to the general public. Accordingly, I concur with the majority. However, I
continue to have many equity and accessibility concerns about videoconferencing. See
MSC Administrative Order, 507 Mich ___, ___ (July 26, 2021) (V IVIANO and
BERNSTEIN , JJ., concurring in part and dissenting in part). Given the efficacy and
prevalence of vaccinations against COVID-19, to the extent that in-person proceedings can
take place safely in the future, I hope that an individual’s preference for in-person
proceedings will be honored.
Richard H. Bernstein

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S T A T E O F M I C H I G A N
SUPREME COURT
In re BRUCE U. MORROW, Judge
3rd Circuit Court.
No. 161839
Z AHRA , J. (concurring in part and dissenting in part).
I agree with the Court that the Judicial Tenure Commission (JTC) properly
concluded that respondent has committed judicial misconduct and that his challenges to
the proceedings are without merit. Over the course of a criminal trial, respondent, under
the guise of offering trial practice tips to the two young female prosecutors, repeatedly
steered several conversations toward irrelevant, highly charged sexual commentaries and
analogies that exceeded the bounds of appropriate professional interactions. Like the JTC,
I conclude that respondent’s behavior was not pedagogical but instead establishes a
deliberate pattern of conduct pursued for the purpose of sexually harassing two young
female lawyers in his captive audience. The JTC seeks imposition of a one-year
suspension, a suspension that effectively removes respondent from the bench for the
balance of his judicial career. I would impose the suspension sought by the JTC.
I strongly disagree with my colleagues that a lesser six-month suspension is
appropriate. The Court makes clear this is not the first disciplinary proceeding in which
respondent’s inappropriate courtroom behavior has been the subject of discipline.
Respondent is a frequent flyer before the JTC and has failed to demonstrate that he has
learned anything from his previous encounters. And as his judicial career winds to a close,

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2
respondent appears to be all the more determined to thumb his nose at the criminal justice
system he purports to serve, defying with impunity the commands of the law and the Code
of Judicial Conduct.1 As explained in the JTC’s decision and recommendation, respondent
“had been confronted and educated by both the [State Court Administrative Office
(SCAO)] and the [JTC] about misconduct that is similar to conduct he committed in this
case.”2 He has since been suspended for other misconduct involving several instances of
1 The JTC filed a supplemental brief indicating it has completed investigating a separate
case that was dismissed with an admonition. MCR 9.244(B)(1) provides: “The list of
previous disciplinary actions shall be submitted under seal and will be retained in a
nonpublic manner. Disclosure of any prior disciplinary action will occur only if the
information is relevant to any recommendation or imposed sanction.” The information in
the JTC’s supplemental brief is, in my view, highly relevant to the imposed sanction
because it demonstrates that respondent will continue to deliberately disregard the law and
fail to behave as a judge during the balance of his judicial career.
In that matter, respondent refused to issue a deadlocked-jury instruction and instead
told the jury that “sometimes beyond a reasonable doubt is actually and can be beyond all
doubt.” One need not attend law school to know this is not an accurate statement of the
law. Respondent appeared determined to direct the jury to an acquittal, as he later charged
them that “[s]ometimes beyond a reasonable doubt really, in some instances, depending
upon, depends on beyond all doubt.” He also instructed the jury, contrary to the law, that
“you will hear people say: Oh, it’s not beyond all doubt. And that’s not true. In some
cases, it is.” He then refused to correct this clearly erroneous instruction, and a mistrial
was later entered because the jury could not reach a verdict. The admonishment
correspondence sent to respondent from the JTC explained that “[w]e have elected not to
file a public complaint only because in [the instant case] we have already recommended
that you be suspended for what will be essentially the balance of your career as a judge, so
it is not a good use of our limited resources to pursue another public complaint against
you.”
2 In 2004, SCAO reprimanded respondent for a variety of misconduct. With respect to his
treatment of a female court employee, the SCAO letter stated:

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3
his abject failure to behave as a judge. I agree with the JTC that it is clear that “[r]espondent
is either incapable of conforming his behavior to the expectations of a judge, or is unwilling
to do so.”
It is rare for any judge of this state to have been publicly found to have committed
judicial misconduct. It is a decidedly rare for a judge to have twice committed misconduct
without having resigned or been removed from office.3 Despite finding himself in these
rare circumstances, as the JTC observed, respondent “has not expressed an iota of remorse.
Quite the opposite, he has argued that there was nothing wrong with what he said and/or
did, and has never retracted that position.” He has instead insisted that at least one of the
female assistant prosecutors is lying, and at the formal hearing, he repeatedly provided
facts and explanations that were discredited by other witnesses and against the great weight
You engaged in inappropriate personal conversation with a personnel
staff person asking inappropriate questions and making inappropriate
personal comments . . . .
It is inappropriate to discuss matters of a personal nature with staff
unless that individual is an acquaintance or friend (in the instance described
above, the staff person was new to you) . . . .
The JTC also mentioned that there is evidence that respondent said inappropriate
intimate and sexual things to female prosecutors in 2018 and 2019 that are uncharged acts
of misconduct. In 2018, when ruling on a motion to suppress evidence of cell phone
records in a drug case—a case that, as the JTC noted, “had nothing to do with sex or sex
crimes”—respondent posed a hypothetical question to a female prosecutor to this effect:
“Would I have an expectation of privacy if I were to have sex with a man in the stall of a
restroom?” In 2019, respondent asked a female prosecutor who wears a hijab what color
her armpit hair is, and he shared with her that he shaves his own armpits.
3 See Michigan Judicial Tenure Commission, Formal Complaints and Disciplined Judicial
Officers (Alphabetical) <http://jtc.courts.mi.gov/formal_complaints_and_disciplined_judges/
resolved_formals_and_disciplined_judicial_officers_(alphabetical).php> (accessed
December 3, 2021) [https://perma.cc/L4VF-UVTL].

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4
of the evidence. For these reasons, I agree with the JTC that “[c]ensuring and suspending
[r]espondent without pay for a period of twelve months . . . is consistent and proportionate
based upon the discipline other judges have received for similarly sexually-based
misconduct.” Given respondent’s history of judicial misconduct, his lack of remorse, and
the absence of any assurance that respondent will conform to the rules of judicial conduct
in his waning days in office, I strain to find any rational basis to reward respondent with a
lesser suspension.
I hope the Court will not rue this day, but I fear that respondent, who has failed to
demonstrate that he has learned anything from his prior JTC proceedings, will make a
mockery of this Court and our judicial disciplinary proceedings in the six months of
prestige of office and compensation the majority has undeservedly bestowed upon him in
these proceedings. The Court’s sanction should permanently put to an end respondent’s
judicial career. Because it does not, I dissent from that portion of the majority opinion that
reduces the sanction imposed on respondent.
Brian K. Zahra

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